G.R. No. 71228 September 24, 1987 ERLINDA P. MERAM, petitioner, vs. FILIPINA V.

EDRALIN, THE MINISTER OF NATURAL RESOURCES AND THE PRESIDENTIAL ASSISTANT FOR LEGAL AFFAIRS, respondents. GUTIERREZ, JR., J.: This is a petition for certiorari which seeks to set aside the decision of the Presidential Assistant for Legal Affairs, permanently enjoining the Minister of Natural Resources and the Director of the Bureau of Forest Development (BFD) from enforcing and implementing the decisions of the Merit Systems Board and the resolutions of the Civil Service Commission which ordered the appointment of the petitioner to the contested position of Administrative Officer V in the Bureau of Forest Development. On July 29, 1982, the private respondent Filipino V. Edralin, who was a training officer of the Bureau of Forest Development (BFD) was proposed for appointment to the position of Administrative Officer V, R-73, Administrative Division of the BFD. Petitioner herein and Mr. Hermocio M. Agravio who hold the positions of Administrative Officer III,R-70 and Supply Officer V, R-70 respectively, filed their protests against the proposal. On the same date, the Director of the BFD sent a memorandum to the respondent Minister stating that in the course of the deliberation of the BFD Promotion Board, the latter found out that there are four BFD Personnel in the Central Office who are considered "next-in-rank" to the position of Administrative Officer V namely: Erlinda P. Meram, Administrative Officer Ill, Range 70, assigned as Chief of the Internal Control Staff. Hermecio M. Agravio, Supply Officer V, Range 70, Chief of the Property Section, designated Asst. Chief of the Administrative Division from October 8, 1981 to July 20, 1982. Atty. Dominador Malong, Legal Officer, Range 69, assigned in the Legal Division. Atty. Salome T. Cansino, Trial Attorney Range 69, assigned in the Legal Division. (Rollo, pp. 30-31) In his memorandum, the Director also pointed out that the Board found that Mrs. Filipina V. Edralin, Training Officer, Range 60, assigned in the Training Center was not next-in-rank. On August 10, 1982, the Civil Service Commission forwarded to the respondent Minister the protests of the petitioner and Agravio for appropriate action. On August 12, 1982, the respondent Minister forwarded the permanent appointment of respondent Edralin to take effect on August 17, 1982, as Administrative Officer V to the Commission for appropriate action. In his letter, the Minister explained that he assessed the recommendation of the Promotions Board and considered also other aspects which are vital to the dynamism of the service; and upon seeing that respondent Edralin is eminently qualified for the position, the person on whom he can repose his trust and confidence, and who possesses the necessary integrity, knowledgeability and sound judgment, he decided to appoint her to the said position for the best interest of the service. In due course, the appointment was approved by the Commission "subject to the final outcome of the protests against the appointment by Erlinda Meram and H. Agravio." On September 1, 1982, the respondent Minister rendered a decision, embodied in two separate letters, dismissing the protests. In his letter to the petitioner which was received by the latter on September 10, 1982, the Minister assured her "that when another opportunity comes, and I have had a chance to better appreciate your qualities and capabilities, then I would certainly consider you for the appointment to a more senior position. " Petitioner and Agravio appealed to the Merit Systems Board (MSB) pursuant to paragraph 2, Section 5 of Presidential Decree (P.D.) No. 1409. On January 13, 1983, the Merit Systems Board promulgated a decision in favor of Hermecio M. Agravio, revoking the previous approval of the appointment of respondent Edralin and directing the Minister to appoint, in her stead, Agravio to the contested position. In its decision, the MSB ruled:

xxx xxx xxx Based on the foregoing qualifications of the contestants, this Board finds that all parties meet the eligibility requirement. While Mrs. Edralin and Mrs. Meram are holders of bachelor's degree supplemented with at least 12 units in management and/or public administration, Mr. Agravio, although a third year in Commerce, has relevant in-service trainings/seminars which would sufficiently offset his one year deficiency in college work and the required 12 units in management/public administration (CSC Res. No. 682, dated July 20, 1977). Thus, all meet the education requirement for the contested position. As to the required 5 years experience, Mr. Agravio has been (an) Administrative Officer 11 for four years of progressively responsible experience in all phases of administrative functions. In the same manner, Meram bas been a Disbursinng Officer for more than one year, a Budget Examiner for six months, Cashier IV for five years, and an Administrative Officer Ill for more than three years or a total of about nine years and six months. On the other hand, the relevant experience of Edralin consist of three years in Training Assistant and about one year as Training Officer, which experiences as Trainor, although may be considered, are however less than the required five years of progressively responsible experience. However, Edralin's deficiency in the required experience may be offset by her relevant trainings and academic units earned in Master of Public Administration. From the foregoing, it cannot be said that Mr. Agravio does not qualify for the position, or that Mrs. Meram's work experience are not suitable and relevant, and her education not appropriate to the contested position. Moreover, the contested position is not confidential in nature but rather, belongs to the second level in the career service so that trust and confidence are not the decisive factors in fining the position. The Merit Promotion Plan established by the Bureau of Forest Development shows that the positions considered next-in-rank to the contested position of Administrative Officer V (R-73) are: Administrative Officer III (R-70), Supply Officer IV (R-70), Senior Legal Officer (R-69). Mrs. Meram holds the position of Administrative Officer III, and Mr. Agravio, Supply Officer IV. Mrs. Edralin holds the position of Training Officer (R-60) which is not listed as next-in-rank. Such being the case, Mrs. Edralin is not, while Mrs. Meram and Mr. Agravio are next-in-rank employees to the contested position. Hence, the latter two should have been considered for the position of Administrative Officer V. xxx xxx xxx In terms of education, Mrs. Meram is a holder of bachelor's degree with 12 units in Master in Business Administration and has 9 years and 6 months relevant experience with 12 relevant trainings completed. Mr. Agravio, who is a third year Commerce student, however, has 13 years of relevant experience to his credit and 23 relevant training completed. Moreover, for a period of 9 months, Mr. Agravio was designated Officer-in-Charge, Administrative Division, pursuant to MNR Special Order No. 359, series of 1981, and there is no showing that he failed to discharge efficiently the duties and responsibilities of the position. Thus, Mr. Agravio is considered more competent and qualified than Meram (Rollo, pp. 50-51) Both the petitioner and respondent Edralin filed motions for reconsideration. On May 16, 1983, the MSB promulgated another decision modifying the earlier one and appointed the petitioner, after finding that Agravio's designation as Assistant Officer-in-Charge was revoked because he had been ineffective in said position. Respondent Edralin appealed to the Civil Service Commission. On October 5, 1983, the Commission dismissed the appeal and on May 3, 1984, it denied the respondent's motion for reconsideration. On May 18, 1984, respondent Edralin filed a letter-petition with the Office of the President invoking Section 19(6) of P.D. No. 807. In her petition, Edralin alleged that jurisdiction in promotional contests is lodged with the Ministry head and appeal by the aggrieved party from decisions of said Ministry head should be taken to the Office of the President. Therefore, the Merit System Board and the Civil Service Commission had no jurisdiction to act on petitioner's appeal. Petitioner, on the other hand, filed a motion for execution of the Commission's decision. On June 14, 1984, the Confidential Legal Assistant of the Office of the Presidential Assistant for Legal Affairs directed the Commission to forward within fifteen (15) days from receipt thereof, the entire records of the case in view of Edralin's appeal On July 19, 1984, the Commission rejected the order of the Office of the President, stating that under Section 8, P.D. No. 1409, decisions of the Commission are subject to review only by the courts. On October 9, 1984, the Minister of Natural Resources issued a Memorandum to the BFD Director instructing him to enforce and implement the order of the Commission for having become final and executory.

On October 15, 1984, the BFD Director issued the appointment of Administrative Officer V to the petitioner effective as of that date. On February 20, 1985, Confidential Legal Assistant Sabio issued an order directing the MNR to transmit all relevant records of the case. Respondent Edralin wrote another letter to the President of the Philippines. It seems that this letter was taken cognizance of by then President Marcos because on toPof such letter appeared a note in his purported handwriting which reads: 9 March 1985 Justice Lazaro, Tell Dir. Cortes to suspend everything pending study by the Office of the President. Prepare decision on appeal for reconsideration. (Sgd.) Illegible (Rollo, p. 75) In connection with the above note, Presidential Assistant for Legal Affairs Lazaro furnished a copy of Edralin's letter with the President's marginal note to Director Cortes of the BFD. On March 19, 1985, the Director of the BFD issued a memorandum informing Lazaro that the matters which the President was directing him to suspend are already fait accompli and that, therefore, while he was wining to comply with the Presidential instructions, the implementation of his compliance had become legally untenable. This nothwithstanding, on May 27, 1985, Lazaro rendered the questioned decision, the dispositive portion of which provides: WHEREFORE, IN VIEW OF ALL THE FOREGOING, the decision of the Minister of Natural Resources embodied in two separate letters, both dated September 1, 1982, dismissing the protests of Hermecio M. Agravio and Erlinda P. Meram, is hereby AFFIRMED and the appeals therefrom of said protestants are hereby DISMISSED FOR LACK OF MERIT. The Minister of Natural Resources and the Director of the Bureau of Forest Development are hereby ENJOINED PERMANENTLY from carrying out, complying with and/or enforcing in any manner whatsoever, (1) the decisions dated January 13, 1983, and May 16, 1983 of the Merit Systems Board in MSB Case No. 813 and (2) Resolutions Nos. 83-427 and 84-138, dated October 5, 1983, and May 3, 1984, respectively, of the Civil Service Commission in CSC Case No. 84. (Rollo, p. 106) Hence, this petition. The principal issue presented in this case is whether or not the Office of the President acted correctly in taking cognizance of respondent's letter-petition, and passing upon the same, and thereafter, setting aside the decisions of the Merit Systems Board and the Civil Service Commission. P.D. No. 1409, Section 5(2) provides: Sec. 5. Powers and Functions of the Board. The Board shall have the following functions, among others: xxx xxx xxx (2) Hear and decide cases brought before it by officers and employees who feel aggrieved by the determination of appointing authorities involving appointment, promotion, transfer, detail reassignment and other personnel actions, as well as complaints against any officers in the government arising from abuses arising from personnel actions of these officers or from violations of the merit system." In connection with this power of the MSB, Section 8 of this decree also provides: Sec. 8. RelationshiPwith the Civil Service Commission. Decisions of the Board involving the removal of officers and employees from the service shall be subject to automatic review by the Commission. The Commission shall likewise hear and decide appeals from other decisions of the Board, provided that the decisions of the Commission shall be subject to review only by the Courts.

The petitioner contends that by virtue of the above-quoted decree which was promulgated on June 8, 1978, the MSB and the Commission had validly acquired jurisdiction over her formal protest to the exclusion of all other officials, boards or offices and that, therefore, the respondent Presidential Assistant for Legal Affairs gravely abused his discretion when he disregarded and declared as nun and void the decisions of the MSB and the resolutions of the Commission which had already become final and executory, and in fact, had already been executed, enforced and implemented. On the other hand, the Solicitor-General contends that P.D. No. 807 vests exclusive appellate jurisdiction upon the Office of the President in cases of appeal by a qualified next-in-rank employee from decisions of ministry (department) heads arising from appointments in three (3) specific cases. One of them is when said employee is contesting the appointment of one who is not next-in-rank. Therefore, the petitioner's protest should have been elevated to the Office of the President and not to the Commission, much less to the Merit Systems Board. P.D. No. 807 was promulgated on October 6, 1975, Section 19 (6) of this decree provides: Sec. 19 (6) A qualified next-in-rank employee shall have the right to appeal initially to the department head and finally to the Office of the President an appointment made (1) in favor of another next-in-rank employee who is not qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who is appointed by transfer and not next-in-rank, or by reinstatement, or by original appointment if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment: Provided, That final appeal shall be to the department head concerned if the appointment is issued to a qualified next-in-rank employee. Before deciding a contested appointment, the Office of the President shall consult the Civil Service Commission. ... . There is nothing in the above-quoted provision which connotes exclusivity of jurisdiction in the Office of the President to take cognizance of the specific cases cited above. Furthermore, even if it were so, with the promulgation of P.D. No.1409, this power of review by the Office of the President was not only divested of its exclusivity but was, in fact, repealed altogether. The petitioner, therefore, correctly filed her protest with the MSB in accordance with P.D. No. 1409. Moreover, respondent Edralin is now estopped from questioning the orders of the MSB and the Commission since she submitted to the jurisdiction of these two bodies by filing for reconsideration with the MSB and upon denial of the same, by appealing to the Commission. In the leading case of Tijam v. Sibonghanoy (23 SCRA 29), we ruled: While petitioners could have prevented the trial court from exercising jurisdiction over the case by seasonably taking exception thereto, they instead invoked the very same jurisdiction by filing an answer and seeking affirmative relief from it. What is more, they participated in the trial of the case by cross-examining respondent Planas. Upon this premise, petitioners cannot now be allowed belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court to which they had submitted themselves voluntarily. This ruling was reiterated in Philippine National Bank v. Intermediate Appellate Court (143 SCRA 299). As stated earlier, both the MSB and the Commission had jurisdiction to pass upon the petitioner's protest with or without the application of the principle of estoppel. But more important, however, is the fact that in the decision of the MSB on January 13, 1983, the said board found that respondent Edralin is not an employee who is "next-in-rank" to the vacated position, and although there is no mandatory nor peremptory requirement that persons next-in-rank are entitled to preference in appointments (see Taduran v. Commissioner of Civil Service, 131 SCRA 66), the very purpose of the civil service law dictates that persons who are qualified and next-in-rank should be given preferential consideration when filling uPa vacated position through promotion. In Samson v. Court of Appeals (145 SCRA 654, 658-659) we ruled: xxx xxx xxx ... As may be noted, the general purpose of the Civil Service Law (Republic Act No. 2260) is to "insure and promote the general mandate requiring appointments only according to merit and fitness, and to provide within the public service a progressive system of personal administration to insure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines." (Section 2, R. A. 2260). The principles governing the integrity of the civil service are of universal validity. As stated in the case of Hanley v. Murphy (255 P. 2d, 1, 4): xxx xxx xxx ... The civil service system rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. (Barry v. Jackson, 30 Cal. App. 165, 169, 157 P. 828) To that end

the charter establishes a classified civil service system, with exclusive power in the civil service commission to provide qualified personnel, for the various municipal departments and to classify or reclassify positions according to prescribed duties ... Furthermore, civil service laws are not enacted to penalize anyone. They are designed to eradicate the system of appointment to public office based on political considerations and to eliminate as far as practicable the element of partisanshiPand personal favoritism in making appointments. These laws intend to establish a merit system of fitness and efficiency as the basis of appointment; to secure more competent employees, and thereby promote better government. (See Gervais v. New Orleans Police Department, 77 So 2d, 393; Civil Service Board of City of Phoenix v. Warren, 244 P2d 1157 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N. W. 2d 281, 284) In the case at bar, the BFD personnel who are considered next-in-rank to the vacated position were Identified. Respondent Edralin was not one of them. In fact, she was nine or ten salary ranges below the next-in-rank personnel. Subsequently, the MSB made the same finding in its decision. Evidently, therefore, the foremost consideration why respondent's appointment was ordered by the Office of the President notwithstanding the fact that petitioner was more qualified and that she was next-in-rank was because of her petition to the President in the form of a letter rather than an appeal and which started by introducing herself as "Filipina Villeses-Edralin, wife of Efren E. Edralin of Sarrat, Ilocos Norte." The clear intent of her letter-petition was not to appeal in accordance with P.D. No. 807 but to elicit some kind of favorable response from the President based on considerations of blood ties, influence, or ethnic and regional affiliations. To a certain extent she succeeded but this Court must strike down the practice of political, ethnic, religious, or blood ties being used to get choice appointments for it goes against the very purpose behind the establishment of the civil service in our country. As earlier stated, appointments under the civil service law should be based on merit and fitness and should never depend on how intimate a friend or how closely related an appointee is to the powers that be. And granting that the respondent possesses the qualifications required for the contested position, it cannot be denied that the petitioner equally possesses the same qualifications, if not in greater degree, and more important, she is next-in-rank to the vacated position. Therefore, she deserves to be appointed to the disputed item. WHEREFORE, the petition is hereby GRANTED. The decision of the Presidential Assistant for Legal Affairs dated May 27, 1985 is ANNULLED and SET ASIDE. The decision of the Merit Systems Board dated May 16, 1983 and the resolutions of the Civil Service Commission which dismissed respondent's appeal and motion for reconsideration are hereby REINSTATED and made immediately EXECUTORY. No extension to file a motion for reconsideration will be granted. SO ORDERED.

G.R. No. 152574

November 17, 2004

FRANCISCO ABELLA JR., petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

PANGANIBAN, J.: Both the appointing authority and the appointee are the real parties in interest, and both have legal standing, in a suit assailing a Civil Service Commission (CSC) order disapproving an appointment. Despite having legal interest and standing, herein petitioner unsuccessfully challenges the constitutionality of the CSC circular that classifies certain positions in the career service of the government. In sum, petitioner was appointed to a Career Executive Service (CES) position, but did not have the corresponding eligibility for it; hence, the CSC correctly disapproved his appointment. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, challenging the November 16, 2001 Decision 2 and the March 8, 2002 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 58987. The Assailed Decision disposed as follows: "WHEREFORE, the petition for review is DENIED for lack of merit." 4 The challenged Resolution denied petitioner's Motion for Reconsideration. The Facts The CA narrates the factual antecedents in this wise:

"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. "It appears, however, that on May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21, series of 1994, the pertinent provisions of which read: '1. Positions Covered by the Career Executive Service xxx xxx xxx

(b) In addition to the above identified positions and other positions of the same category which had been previously classified and included in the CES, all other third level positions of equivalent category in all branches and instrumentalities of the national government, including government owned and controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria: '1. the position is a career position; '2. the position is above division chief level '3. the duties and responsibilities of the position require the performance of executive or managerial functions. '4. Status of Appointment of Incumbents of Positions Included Under the Coverage of the CES. Incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under temporary status in said other CES positions 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." "x x x xxx xxx

"Undaunted, petitioner filed with [the CA] a petition for review seeking the reversal of the CSC Resolutions dated January 10, 2000 and May 11, 2000 on the ground that CSC Memorandum Circular No. 21, s. 1994 is unconstitutional as it rendered his earned civil service eligibility ineffective or inappropriate for the position of Department Manager [III]"5 Ruling of the Court of Appeals The CA shunned the issue of constitutionality, arguing that a constitutional question should not be passed upon if there are other grounds upon which the case may be decided. 6 Citing CSC Memorandum Circular 40, s. 1998 and Mathay v. Civil Service Commission,7 the appellate court ruled that only the appointing officer may request reconsideration of the action taken by the CSC on appointments. Thus, it held that petitioner did not have legal standing to question the disapproval of his appointment.8 On reconsideration, the CA added that petitioner was not the real party in interest, as his appointment was dependent on the CSC's approval. Accordingly, he had no vested right in the office, since his appointment was disapproved. 9 Unsatisfied, petitioner brought this recourse to this Court. 10

The Issues Petitioner raises the following issues for our consideration: "A. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction in ruling that petitioner lacks the personality to question the disapproval by respondent office of petitioner's appointment as Department Manager III, Labor and Employment Center, SBMA. "B. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction in ruling that petitioner is not the real party in interest to question the disapproval by respondent office of petitioner's appointment as Department Manager III, Labor and Employment Center, SBMA. "C. Whether or not Respondent Court committed grave abuse of discretion amounting to lack of jurisdiction, in dismissing petitioner's appeal on a mere technicality considering that petitioner is questioning the constitutionality of respondent office' issuance of Section 4 of CSC Memorandum Circular No. 21, s. 1994, which deprived petitioner his property right without due process of law." 11 The Court's Ruling The Petition is partly meritorious. First Issue: Who May File Reconsideration or Appeal Preliminary Observation Petitioner imputes to the CA "grave abuse of discretion amounting to lack of jurisdiction" for ruling that he had no legal standing to contest the disapproval of his appointment. 12 Grave abuse of discretion is a ground for a petition for certiorari under Rule 65 of the Rules of Court. Nevertheless, this Court resolved to grant due course to the Petition and to treat it appropriately as a petition for review on certiorari under Rule 45 of the Rules of Court. The grounds shall be deemed "reversible errors," not "grave abuse of discretion." Approval Required for Permanent Appointment A permanent appointment in the career service is issued to a person who has met the requirements of the position to which the appointment is made in accordance with the provisions of law, the rules and the standards promulgated pursuant thereto.13 It implies the civil service eligibility of the appointee. 14 Thus, while the appointing authority has the discretion to choose whom to appoint, the choice is subject to the caveat that the appointee possesses the required qualifications.15 To make it fully effective, an appointment to a civil service position must comply with all legal requirements. 16Thus, the law requires the appointment to be submitted to the CSC which will ascertain, in the main, whether the proposed appointee is qualified to hold the position and whether the rules pertinent to the process of appointment were observed.17 The applicable provision of the Civil Service Law reads: "SECTION 9. Powers and Functions of the Commission. The Commission shall administer the Civil Service and shall have the following powers and functions: "x x x xxx xxx

"(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission, if this should take place, without prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or rules: Provided, finally, That the Commission shall keep a record of appointments of all officers and employees in the civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by the appointing authority within thirty days from issuance, otherwise, the appointment becomes ineffective thirty days thereafter."18

The appointing officer and the CSC acting together, though not concurrently but consecutively, make an appointment complete.19 In acting on the appointment, the CSC determines whether the appointee possesses the appropriate civil service eligibility or the required qualifications. If the appointee does, the appointment must be approved; if not, it should be disapproved.20 According to the appellate court, only the appointing authority had the right to challenge the CSC's disapproval. It relied on Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 (Omnibus Rules on Appointment and Other Personal Actions), which provides: "Section 2. Request for Reconsideration of, or appeal from, the disapproval of an appointment may be made by the appointing authority and submitted to the Commission within fifteen (15) calendar days from receipt of the disapproved appointment." Appointing Authority's Right to Challenge CSC Disapproval While petitioner does not challenge the legality of this provision, he now claims that it is merely a technicality, which does not prevent him from requesting reconsideration. We clarify. The power of appointment necessarily entails the exercise of judgment and discretion. 21 Luego v. Civil Service Commission22 declared: "Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide." 23 Significantly, "the selection of the appointee -- taking into account the totality of his qualifications, including those abstract qualities that define his personality -- is the prerogative of the appointing authority." 24 No tribunal, not even this Court,25 may compel the exercise of an appointment for a favored person. 26 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. Thus, Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 is justified insofar as it allows the appointing authority to request reconsideration or appeal. In Central Bank v. Civil Service Commission, 27 this Court has affirmed that the appointing authority stands to be adversely affected when the CSC disapproves an appointment. Thus, the said authority can "defend its appointment since it knows the reasons for the same."28 It is also the act of the appointing authority that is being questioned when an appointment is disapproved.29 Appointee's Legal Standing to Challenge the CSC 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 Civil Service Commission, should be given the right to file motions for reconsideration or to appeal. 30 On this point, the concepts of "legal standing" and "real party in interest" become relevant. Although commonly directed towards ensuring that only certain parties can maintain an action, "legal standing" and "real party in interest" are different concepts. Kilosbayan v. Morato 31 explained: "The difference between the rule on standing and real party-in-interest has been noted by authorities thus: 'It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party-in-interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328 [1985]) "Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in 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.' (Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633 (1962)) "x x x xxx xxx

"On the other hand, the question as to 'real party-in-interest' is whether he is 'the party who would be [benefited] or injured by the judgment, or the 'party entitled to the avails of the suit.' (Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125, 131 [1951])" 32 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, he was prejudiced by the disapproval, since he could not continue his office. Although petitioner had no vested right to the position,33 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. The Appointee a Real Party in Interest 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.34 "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. 35 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. 36 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. 37 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. Appointee Allowed Procedural Relief Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to restrict solely to the appointing authority the right to move for a reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the authority to promulgate its rules and regulations, are silent on whether appointees have a similar right to file motions for reconsideration of, or appeals from, unfavorable decisions involving appointments. Indeed, there is no legislative intent to bar appointees from challenging the CSC's disapproval. The view that only the appointing authority may request reconsideration or appeal is too narrow. The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 38 recognizes the right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a matter to the CSC Central Office. 39 The adversely affected party necessarily includes the appointee. This judicial pronouncement does not override Mathay v. Civil Service Commission, 40 which the CA relied on. The Court merely noted in passing -- by way of obiter -- that based on a similar provision, 41 only the appointing officer could request reconsideration of actions taken by the CSC on appointments. In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions that recalled his appointment of a city government officer. He filed a Petition assailing the CA Decision, which had previously denied his Petition for Certiorari for being the wrong remedy and for being filed out of time. We observed then that the CSC Resolutions were already final and could no longer be elevated to the CA. 42 Furthermore, Mathay's Petition for Certiorari filed with the CA was improper, because there was an available remedy of appeal. And the CSC could not have acted without jurisdiction, considering that it was empowered to recall an appointment initially approved. 43 The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At any rate, the present case is being decided en banc, and the ruling may reverse previous doctrines laid down by this Court. 44 Second Issue: Constitutionality of Section 4, CSC Memorandum Circular 21, Series of 1994 Alleging that his civil service eligibility was rendered ineffective and that he was consequently deprived of a property right without due process,45 petitioner challenges the constitutionality of CSC Memorandum Circular 21, s. 1994. 46 The pertinent part of this Circular reads:

"1. Positions Covered by the Career Executive Service. "(a) The Career Executive Service includes the positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director (department-wide and bureau-wide), Assistant Regional Director (department-wide and bureau-wide) and Chief of Department Service[.] "(b) In addition to the above identified positions and other positions of the same category which had been previously classified and included in the CES, all other third level positions in all branches and instrumentalities of the national government, including government-owned or controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria: "1. the position is a career position; "2. the position is above division chief level; "3. the duties and responsibilities of the position require the performance of executive or managerial functions." xxx xxx xxx

"4. Status of Appointment of Incumbents of Positions Under the Coverage of the CES. Incumbents of positions which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions. However, upon promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under temporary status in said other CES positions until they qualify." Petitioner argues that his eligibility, through the Executive Leadership and Management (ELM) training program, could no longer be affected by a new eligibility requirement. He claims that he was eligible for his previous position as department manager of the Legal Services Department, PEZA; hence, he should retain his eligibility for the position of department manager III, Labor and Employment Center, SBMA, notwithstanding the classification of the latter as a CES position. CSC Authorized to Issue Rules and Regulations The Constitution mandates that, as "the central personnel agency of the government," 47 the CSC should "establish a career service and adopt measures to promote the morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the Civil Service."48 It further requires that appointments in the civil service be made only through merit and fitness to be determined by competitive examination. 49 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.50 Logically, the CSC had to issue guidelines to meet this objective, specifically through the issuance of the challenged Circular. Career Service Classified by Levels Positions in the career service, for which appointments require examinations, are grouped into three major levels: "(a) The first level shall include clerical, trades, crafts, and custodial service positions which involve nonprofessional or sub[-]professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; "(b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and "(c) The third level shall cover positions in the Career Executive Service." 51 Entrance to the different levels requires the corresponding civil service eligibility. Those in the third level (CES positions) require Career Service Executive Eligibility (CSEE) as a requirement for permanent appointment. 52

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 CSEE. Rights Protected 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; 53 hence, there is no basis to argue that it is an ex post facto law54 or a bill of attainder.55 These terms, which have settled meanings in criminal jurisprudence, are clearly inapplicable here. 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 56 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. Security of Tenure Not Impaired The argument of petitioner that his security of tenure is impaired is unconvincing. First, security of tenure in the Career Executive Service -- except in the case of first and second level employees in the civil service -- pertains only to rank, not to the position to which the employee may be appointed. 57 Second, petitioner had neither rank nor position prior to his reemployment. One cannot claim security of tenure if one held no tenure prior to appointment. Due Process Not Violated Petitioner contends that his due process rights, as enunciated in Ang Tibay v. Court of Appeals, 58 were violated.59 We are not convinced. He points in particular to the CSC's alleged failure to notify him of a hearing relating to the issuance of the challenged Circular. The classification of positions in career service was a quasi-legislative, not a quasi-judicial, issuance. This distinction determines whether prior notice and hearing are necessary. In exercising its quasi-judicial function, an administrative body adjudicates the rights of persons before it, in accordance with the standards laid down by the law.60 The determination of facts and the applicable law, as basis for official action and the exercise of judicial discretion, are essential for the performance of this function. 61 On these considerations, it is elementary that due process requirements, as enumerated in Ang Tibay, must be observed. These requirements include prior notice and hearing.62 On the other hand, quasi-legislative power is exercised by administrative agencies through the promulgation of rules and regulations within the confines of the granting statute and the doctrine of non-delegation of certain powers flowing from the separation of the great branches of the government. 63 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.64 Significantly, the challenged Circular was an internal matter addressed to heads of departments, bureaus and agencies. It needed no prior publication, since it had been issued as an incident of the administrative body's power to issue guidelines for government officials to follow in performing their duties. 65 Final Issue: Disapproval of 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.66 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. 67 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.

WHEREFORE, the Petition is 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. Costs against petitioner. SO ORDERED. Footnotes
18

PD 807, "The Civil Service Law," promulgated October 6, 1975. Title I, Book V, EO 292, also provides: "Section 12 Powers and Functions. The Commission shall have the following powers and functions: "x x x xxx xxx

"(2) Prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws"
33

This Court has recognized that while public office is not property to which one may acquire a vested right, it is nevertheless a protected right. Bince Jr. v. Commission on Elections, 218 SCRA 782, 792, February 9, 1993 (citing Cruz, I.A., Constitutional Law [1991], 101; and Bernas, J., The Constitution of the Republic of the Philippines [1987], Vol. 1, 40). According to existing jurisprudence, protection begins upon the favorable action of the CSC. Thus, no title to the office may be permanently vested in favor of the appointee without the favorable approval of the CSC. Until it has become a completed act through the CSC's approval, an appointment can still be recalled or withdrawn by the appointing authority (Grospe v. Secretary of Public Works & Communications, 105 Phil. 129, 133, January 31, 1959). It would likewise be precipitate to invoke the rule on security of tenure or to claim a vested right over the position (Tomali v. Civil Service Commission, supra, p. 576. See also Corpuz v. Court of Appeals, 348 Phil. 801, 812, January 26, 1998).
39

Pertinent portions of the Resolution reads: "Section 6. Jurisdiction of Civil Service Regional Offices. -The Civil Service Commission Regional Offices shall have jurisdiction over the following cases: "x x x "B. Non-Disciplinary "1. Disapproval of appointments brought before it on appeal; "x x x" "Section 5. Jurisdiction of the Civil Service Commission Proper. -The Civil Service Commission Proper shall have jurisdiction over the following cases: "B. Non-Disciplinary "1. Decisions of Civil Service Commission Regional Offices brought before it; x x x" "Section 71. Complaint or Appeal to the Commission. -Other personnel actions, such as, but not limited to, x x x action on appointments (disapproval, invalidation, recall, and revocation) x x x, may be brought to the Commission, by way of an appeal." "Section 72. When and Where to File. -A decision or ruling of a department or agency may be appealed within fifteen (15) days from receipt thereof by the party adversely affected to the Civil Service Regional Office and finally, to the Commission Proper within the same period. x x x"

43

Ibid. 1, Rule 65 of the Rules of Court, states that a petition for certiorari may be availed of when a tribunal, a board or an officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to

lack or excess of jurisdiction; and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.
44

4, paragraph (3), Article VIII of the Constitution, states: "No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc."
54

An ex post facto law is one (1) which criminalizes an action that was done before the passing of the law and that was innocent when done, and punishes such action; (2) which aggravates a crime or makes it greater than when it was committed; (3) which changes the punishment and inflicts a greater punishment than that imposed by the law annexed to the crime when it was committed; or (4) which alters the legal rules of evidence and receives less or different testimony than that which the law required at the time of the commission of the offense in order to convict the defendant. Nuez v. Sandiganbayan, 111 SCRA 433, 447-448, January 30, 1982. See also People v. Sandiganbayan, 211 SCRA 241, 249, July 3, 1992.
56

Reemployment is defined as "the reappointment of a person who has been previously appointed to a position in the career or non-career service and was separated therefrom as a result of reduction in force, reorganization, retirement, voluntary resignation, non-disciplinary actions such as dropping from the rolls and other modes of separation. Reemployment presupposes a gap in the service." Memorandum Circular 15, s. 1999, dated August 27, 1999, amending Memorandum Circular 40, s. 1998.
58

69 Phil. 635, 624-644, February 27, 1940. The cardinal primary requirements that must be respected in administrative proceedings are as follows: (1) there must be a right to a hearing, including the right to present one's case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the decision must have something to support itself; (4) the evidence must be substantial; (5) the decision must be rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected; (6) the tribunal must act on its own consideration of the law and the facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision; and (7) the tribunal should render its decision in such a manner that one can know the various issues involved and the reasons for the decision rendered.

G.R. No. 141966

June 30, 2005

ISRAEL G. PERALTA, Parole and Probation Administration, Cotabato City, petitioner, vs. COURT OF APPEALS, The Ombudsman and Nida Olegario, respondents. AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks the reversal of the Decision1 of the Court of Appeals (CA) dated November 26, 1999, in CA-G.R. SP No. 54375 denying the petition for certiorari filed by petitioner Israel G. Peralta; and the Resolution 2 dated February 15, 2000 denying petitioners motion for reconsideration. The petition for certiorari assailed the Decision 3 of the Office of the Ombudsman in Administrative Case No. OMB-MIN-ADM-95-098, finding Peralta guilty of abuse of authority and imposing upon him the penalty of suspension from office for one year. The facts of the case, as found by the CA, are as follows: Petitioner Israel G. Peralta (PERALTA) is the Director/Officer-in-Charge of the Parole and Probation Administration (PPA), Regional Office No. XII, Cotabato City. On the other hand, private respondent Nida Olegario (OLEGARIO) holds a permanent position of Budget Officer I in the same office. In 1993, the Central Office of the PPA inadvertently reported to the Department of Budget and Management (DBM) that the position held by OLEGARIO was an unfilled position. Consequently, the DBM did not release any allotment or funds for the position. PERALTA, as Director/OIC of PPA Regional Office XII, caused the payment of OLEGARIOs salary and other benefits from the savings of the office. Thereafter, PERALTA, brought the matter to the attention of the DBM and requested for allotment for the position of Budget Officer I, but the same was not released for some time. On March 23, 1995, PERALTA issued an Order, directing OLEGARIO and a co-employee Visitacion U. Enilo, to cease and desist from performing their duties and functions effective April 1, 1995 and to go on leave with or without pay, as the case may be, on the ground of insufficiency in the release of allotment under the plantilla of the office.

In order to enforce said Order, PERALTA, on March 28, 1995, directed the property custodian to recall all semi-expendable equipment from OLEGARIO and to turn them over to Clerk II Marietta Linggang who was designated in the same Order as Records Officer. On March 24, 1995, OLEGARIO sought the opinion of the Civil Service Commission (CSC), Cotabato City, anent the legality of the aforesaid Order. In a letter dated March 27, 1995, the CSC informed PERALTA that OLEGARIO, being a government employee holding a permanent appointment, cannot be removed or separated from the service without valid cause. In the same letter, the CSC declared that the assailed Order is illegal because going on leave is a matter of personal choice and decision of the employee concerned. The CSC further held that the alleged insufficiency of cash allotment for salaries is not among the valid grounds provided by law for removing/separating employees from the service. It also advised PERALTA to cease and desist from enforcing the void Order. Despite the CSC ruling, PERALTA persisted in enforcing the void order, prompting OLEGARIO to seek anew the assistance of the CSC in another letter dated April 3, 1995, informing the CSC about the handwritten directive issued by PERALTA to the security guards of the office directing the latter to strictly enforce his order dated March 23, 1995, and to prevent and disallow OLEGARIO from registering in the personnel logbook of the office. In a letter dated April 10, 1995 addressed to PERALTA, the CSC reiterated its previous ruling and added that the enforcement of the Order is tantamount to removal without just cause, is without due process, and is in violation of the constitutional guarantee of security of tenure. The CSC ordered PERALTA to allow OLEGARIO and Visitacion Enilo to report for work. PERALTA obstinately refused to obey the CSC directive. OLEGARIO and Visitacion Enilo continued to be barred from reporting for work. On May 17, 1995, OLEGARIO filed her complaint with the Office of the Ombudsman (Mindanao) against PERALTA for grave abuse of authority. On July 21, 1995, PERALTA issued a memorandum directing OLEGARIO and Visitacion Enilo to report back for work in view of the receipt of the allotment for their salaries from the Department of Budget and Management. On August 2, 1995, OLEGARIO reported back for work in compliance with the aforesaid memorandum. On August 7, 1996, after finding probable cause, the Honorable Ombudsman preventively suspended PERALTA for ninety (90) days. He moved for a reconsideration but the same was denied. On November 26, 1996, the Honorable Ombudsman found PERALTA guilty of grave abuse of authority and meted him the penalty of suspension from office for one (1) year without pay. ..... PERALTAs motion for reconsideration was denied in the Order dated April 18, 1997. 4 Aggrieved by the judgment of the Office of the Ombudsman, Peralta filed a petition for certiorari with this Court, pursuant to Section 27 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989. 5 Subsequently, private respondent Olegario and the Office of the Solicitor General filed their respective comments on the Petition.lawphil.net6 Peralta filed his reply to Olegarios comment.7 In a Resolution8 issued by this Court on July 6, 1999, the instant case was referred to the CA pursuant to this Courts ruling in Fabian vs. Desierto.9 On November 26, 1999, the CA rendered herein assailed Decision. Peralta filed a motion for reconsideration 10which was denied by the CA in its Resolution of February 15, 2000. 11 Hence, the present petition for review based on the following grounds: 1. RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION, TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION, IN DISMISSING THE CASE WHEN IT EQUATED THE POWER OF THE REGIONAL DIRECTOR OF THE CIVIL SERVICE COMMISSION WITH THOSE OF THE COMMISSION ITSELF.

2. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF JURISDICTION WHEN IT APPLIED THE TERM "BAD FAITH" TO THE ACT OF THE PETITIONER WITHOUT TAKING INTO ACCOUNT THE YARDSTICK LAID BY THE HONORABLE SUPREME COURT. 3. THE RESPONDENT COURT ERRED AND/OR COMMITTED A GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION IN AFFIRMING THE PATENTLY ERRONEOUS RESOLUTION OF THE OMBUDSMAN. 12 In a Resolution dated October 4, 2000, we issued a temporary restraining order enjoining the Office of the Ombudsman from implementing its Decision of November 26, 1996 in Administrative Case No. OMB-MIN-ADM-95-098. In his first assignment of error, Peralta contends that the letters he received from the Office of the Regional Director of the Civil Service Commission (CSC) are mere opinions or technical advice which are not binding on him. He argues that while under the Administrative Code of 1987, the power of the Regional Director of the CSC includes the authority to: (1) enforce Civil Service law and rules, policies, standards on personnel management within their respective jurisdiction; (2) provide technical advice and assistance to government offices and agencies regarding personnel administration; and (3) perform such other functions as may be delegated by the Commission, the power of the Regional Director of the CSC does not include the authority to render opinion and rulings on all personnel and other Civil Service matters which shall be binding on all heads of departments, offices and agencies. Such power is granted only to the Commission itself. We do not agree. Section 13 of Presidential Decree (P.D.) No. 807, known as the Civil Service Decree of the Philippines, provides: SEC. 13. Regional Offices. Each regional office of the Commission shall exercise the following authority: a. Enforce Civil Service Law and Rules in connection with personnel actions of national and local government agencies within the region, and the conduct of public officers and employees; b. Conduct recruitment and examination for government-wide positions in the regions; c. Provide technical advice and assistance to public agencies within the region regarding personnel administration; and d. Perform such other functions as may be assigned to it by the Commission. (Emphasis ours) In the same manner, Section 16(15), Chapter 3, Subtitle A, Title I, Book V of Executive Order (E.O.) No. 292, otherwise known as the Administrative Code of 1987, states: (15) The Regional and Field Offices. The Commission shall have not less than thirteen (13) Regional offices each to be headed by an official with at least the rank of an Assistant Director. Each Regional Office shall have the following functions: (a) Enforce Civil Service law and rules, policies, standards on personnel management within their respective jurisdiction; (b) Provide technical advice and assistance to government offices and agencies regarding personnel administration; and (c) Perform such other functions as may be delegated by the Commission. (Emphasis ours) It is clear from the above-quoted provisions of P.D. No. 807 and E.O. No. 292 that the Regional Offices of the CSC are empowered to enforce Civil Service laws, rules, policies and standards on personnel management or personnel actions of national and local government agencies within their jurisdiction, and to enforce the same laws, rules, policies and standards with respect to the conduct of public officers and employees. From this power necessarily flows the authority to issue opinions and rulings regarding personnel management in both national and local government agencies. Moreover, these opinions and rulings perforce bind the aforementioned government agencies, otherwise, the authority given by law to these Regional Offices would become useless and said Regional Offices can be rendered impotent by government agencies which can simply choose to ignore their opinions and rulings on the convenient ground that they are not binding. In the present case, the provision of law being enforced by the Regional Office of the CSC is Section 36 of P.D. No. 807 and Section 46 of E.O. No. 292 which both provide that no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. Hence, the ruling of the CSC Regional Office that the memorandum of Peralta, dated March 23, 1995, directing private respondent Nida Olegario to cease and desist from

performing her duties and functions and advising her to go on leave with or without pay is contrary to existing Civil Service law and rules, is binding upon petitioner. Peraltas main contention is that his issuance of the questioned memorandum was done in good faith. We are not persuaded. Peralta argues that his act of issuing the memorandum of March 23, 1995 was demanded by the urgency of finding a solution to a problem that was not of his own making but which was caused by the inadvertence of those who prepared the budgetary requirements of his office. He claims that he was left with no better choice but to enforce the said memorandum because he fears that he may be held personally liable for the payment of the salary of Olegario if he allowed her to continue to work without any cash allotments coming from the Department of Budget and Management (DBM). However, Peralta failed to refute the allegation of Olegario that as early as November 1994, or four months before Peralta issued the questioned memorandum, he already knew of the release of cash allotment by the DBM to answer for the salary of Olegario. Despite such knowledge he still proceeded to implement his memorandum. Even granting that no cash allotment was indeed released by the DBM, Peralta could have simply contented himself by doing his duty as the Director/Officer-in-Charge of Regional Office No. XII of the Parole and Probation Administration (PPA), of informing the central office of the PPA of its mistake in declaring the position of Olegario as vacant and of following up the status of his request for the release of Olegarios salary by the DBM. In such a case, he can no longer be faulted, as it is already beyond his control, if the DBM, in coordination with the central office of the PPA, still failed to provide the necessary funding for the salary of Olegario. Peralta overstepped the bounds of his authority by executing and implementing his memorandum and in spite of the advice given by the CSC Regional Office that the same is without any legal basis. Further, granting for the sake of argument that the opinions and rulings of the Regional Office of the CSC are not binding upon him, it behooves Peralta to have been more careful in continuing to enforce his questioned memorandum considering that he has been reminded twice by the CSC Regional Office not to pursue his actions as they are not in accordance with law. What makes his conduct inexcusable is the fact that Peralta chose to ignore the directive of a government agency whose main task is to enforce Civil Service laws, rules, policies and standards on personnel management and is, therefore, presumed to be the authority when it comes to matters involving questions on personnel administration in the government. It would have been different if Peralta was never informed or advised by the CSC of the illegality of his actions, for in such a case he could have validly claimed that he acted in good faith. But the undisputed facts in the present case show otherwise. Peralta was properly advised by the CSC. In fact, the CSC Regional Office wrote to him twice. The second letter even contained an order allowing Olegario to report back to work. Despite these letters and directive, Peralta remained adamant. The fact that he was not satisfied with the advice or instruction of the CSC Regional Office does not justify his act of disregarding the same. He could have filed an appeal with the CSC itself questioning the ruling of the CSC Regional Office as the Commission has the power, under the law, to review decisions and actions of its offices and of the agencies attached to it.13 In the alternative, Peralta could have sought the opinion of other authorities, such as the legal department of his office. He also had the option of taking the matter with the central office of the PPA, or the Department of Justice of which the PPA is a constituent unit. As the Director/Officer-in-Charge of Regional Office No. XII of the PPA, it is Peraltas duty to find legal bases for his actions. However, nothing in the records at hand shows that he did. Instead, he proceeded to implement his own memorandum, which runs counter to the order of the CSC Regional Office. Thus, the presumption of good faith on his part is overcome by his obstinate and unjustified refusal to heed the directive of the CSC. Peralta, no doubt, acted in bad faith. In Sidro vs. People,14 we held that: Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.15 Hence, we find no error in the findings of the CA that Peralta is guilty of abuse of authority. As to the payment of the back salaries of Olegario, we find our ruling in Constantino-David, et al. vs. PangandamanGania16 applicable. There, we held that if the illegal dismissal, including the refusal to reinstate an employee after a finding of unlawful termination, is found to have been made in bad faith or due to personal malice of the superior officers then they will be held personally accountable for the employees back salaries; otherwise, the government disburses funds to answer for such arbitrary dismissal.17 In the present case, while Olegario was not dismissed, Peralta nonetheless, barred her from reporting for work. Moreover, Peralta unjustifiably refused to reinstate or allow her to report back to work despite the order of reinstatement issued by the CSC Regional Office. Hence, Peralta should be made liable for the salary

of Olegario from April 1, 1995, which was the date of effectivity of Peraltas memorandum of March 23, 1995, until July 21, 1995, when Peralta issued another memorandum directing Olegario to report back to work. WHEREFORE, the instant petition for review is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 54375 dated November 26, 1999 and February 15, 2000, respectively, are AFFIRMED with MODIFICATION that Peralta is directed to pay the back salaries of Olegario from April 1, 1995 until July 21, 1995. The temporary restraining order issued by this Court is LIFTED and SET ASIDE. SO ORDERED.

G.R. No. L-40641 September 9, 1982 FILOMENO ABROT, GORGONIO TORRECHILLA, NOEL GEOLLEGUE ERLINDA CASTILLO, FLORENTINO PAGUNSAN, ELIAS DEQUINA FRANCISCO SELOTERIO, and TOMAS HILAGA, JR., petitioners, vs. THE COURT OF APPEALS, CITY OF LA CARLOTA and LUIS G. JALANDONI, JR., respondents. MELENCIO-HERRERA, J.: This is a Petition for Review on certiorari of the Decision promulgated on September 19, 1974 by respondent Court of Appeals 1 in CA-G.R. Nos. 50011- R to 50017-R. The individual petitioners were former employees of respondent City of La Carlota, Negros Occidental, holding various positions and appointments as listed hereinbelow: Name Position Civil Service Law Provision 1 . 2 . 3 . 4 . 5 . 6 . 7 . 8 . Filomeno Abrot Gorgonio Torrechilla Noel Geollegue Erlinda Castillo Florentino Pagunsan Elias Dequina Francisco Seloterio Tomas Hilaga, Jr. Municipal Secretary Market Helper Market Cleaner Rural Health Attendant Laborer Laborer Road Foreman City Community Development Officer Sec. 5(f) Sec. 5(g) Sec. 5(g) Sec. 24(d) Sec. 5(g) Sec.5(g) Sec. 24(c) Sec. 24(c)

All of them were appointees of former City Mayor Jaime Mario who was defeated by respondent Luis G. Jalandoni in the local elections of November, 1967. After Mayor Jalandoni assumed office in January, 1968, the eight petitioners were separated from the service on various grounds. Abrot was allegedly made to resign. Torrechilla, Geollegue, Castillo, Pagunsan, Dequia and Seloterio were laid off for "lack of funds and for reasons of public interest". Hilaga's position was abolished in the 1968-69 budget for reasons of economy.

On July 20, 1968, the Municipal Board of respondent City of La Carlota enacted Ordinance No. 49, series of 1968, approving the Budget for Fiscal Year 1968-69 effective July 1, 1968. 2 The Budget Analysis for said fiscal year revealed that 106 positions were abolished including the positions of herein petitioners (except that of petitioner Abrot). 3 Questioning their separation from the service, petitioners instituted seven (7) separate actions for reinstatement, payment of back salaries, and damages against herein respondents before the Court of First Instance of Negros Occidental. Petitioners anchored their claim on their right to security of tenure guaranteed by the Constitution; that the termination was without due process and contrary to the Civil Service Law and that the abolition and termination was made in bad faith and politically motivated, the economic reasons set forth being merely a subterfuge to justify the illegal termination. Petitioner Seloterio also invoked the benefits of the Veterans Law (RA 1363) to support his claim to be retained in office. In separate Answers to said Complaints, respondents averred mainly that petitioners' separation from the service was motivated solely by good faith inasmuch as when respondent City Mayor took over the reins of the City government, it was in the throes of a grave financial crisis due to the huge financial overdrafts, deficits, unpaid statutory and contractual obligations of more than one (1) million pesos and the only immediate and available remedy to prevent further financial deterioration was to reduce the working force of the City government. After joint trial, the Court a quo dismissed all the Complaints. It gave full credence to respondents' evidence showing the imperative necessity for the termination of petitioners and later the abolition of their positions in the 1968-69 plantilla. Petitioners took separate appeals to respondent Court of Appeals. At this juncture, it should be noted that petitioner Florentino Pagunsan, co-complainant of petitioner Dequia in Civil Case No. 8853, did not present any evidence before the trial court. The records also show that neither did he sign the Notice of Appeal nor was he among the signatories to the Motion for Early Resolution of this case filed on November 7, 1979. On September 19, 1974, the Court of Appeals promulgated a joint Decision modifying the trial Court's judgment as follows: WHEREFORE, judgment is hereby rendered as follows: a) Affirming the dismissal of the complaints in CA-G.R. No. 50011-R (re; Filomeno Abrot), 50014-R (re; Erlinda Castillo), 50016-R (re: Francisco Seloterio) and 50017-R (re: Tomas Hilaga, Jr.); and b) In CA-G.R. No. 50013-R (re: Noel Geollegue), 50015-R (re: Florentino Pagunsan and Elias Dequia) and 50012-R (Gorgonio Torrechilla), the judgments appealed from are hereby reversed and, in lieu thereof, let another one be entered in each of them ordering the defendants to pay the plaintiffs-appellants in said cases their back salaries from January 16, 1968 to June 30, 1968, without benefit of reinstatement; and to pay the costs. This Petition seeks a review of said judgment. The basic issue affecting all petitioners (except Abrot) is whether or not respondent Court of Appeals erred in finding that the retrenchment policy undertaken by respondents justified the abolition of the positions of petitioners. Corollary issues are (1) whether or not respondent Court of Appeals erred in not ordering the reinstatement of petitioners Torrechilla, Geollegue and Dequia and (2) whether or not respondent Court erred in finding that the appointments of petitioners Castillo and Seloterio were temporary and that, therefore, they are not entitled to security of tenure. Considering that petitioner's factual situations are not Identical, their cases will be dealt with individually, except where there are issues common to several of them. 1. Re: Filomeno Abrot Secretary of the Municipal Board The Court of Appeals upheld the validity of Abrot's termination as Secretary of the Municipal Board pursuant to the Charter of the City of La Carlota, reading: Sec. 14. Secretary of the Board. -The Board shall have a secretary, who shall be appointed by the mayor to serve during the term of appointing power. A vacancy in the office of the secretary shall be filled temporarily or for the unexpired term in like manner. ... (Emphasis supplied.) 4 We affirm. It is obvious that contrary to his contention, Abrot is not entitled to the constitutional guarantee of security of tenure. 2. Tomas Hilaga Jr., City Development Officer

The position of City Development Officer held by him was omitted in the City budget for 1968- 1969 and his services were terminated effective July 15, 1968 on the ground that the office was no longer necessary, and for lack of funds. The Court of Appeals upheld the validity of the abolition of the position stating that it was not done in bad faith nor for political reasons. We find no error in this conclusion. In the case of Arao vs. Luspo, 20 SCRA 722 (1967), this Court held that the abolition of the position in good faith is not the removal prohibited by the Constitution. Abolition of a position for reasons of economy is valid. As observed by the Court of Appeals, Hilaga "failed to successfully rebut the showing made by the defendants as to the precarious financial condition of the City as shown by its huge overdraft and existing statutory and contractual obligations. 3. Erlinda Castillo Rural Health Attendant Francisco Seloterio, Road Foreman We also sustain the findings of respondent Court upholding the termination of petitioners Erlinda Castillo and Francisco Seloterio. While their appointments were denominated as "provisional" under section 24(c) of the then Civil Service Law (although in respect of Castillo, it was also, approved under section 24(d) as temporary 5 , they were, in fact, mere temporary appointments. For what the law considers a provisional appointment refers to an appointee with a civil service eligibility but other than an appropriate one for the position to which he was appointed. 6 Since Castillo and Seloterio did not possess any civil service eligibility, their appointments are considered 'temporary. 7 Well-settled is the rule that temporary appointees may be terminated at any time even without cause. 8 They have no fixed tenure. Being a war veteran cannot help petitioner Seloterio in retaining his position under Republic Act No. 1363. As pointed out by respondent Court, the ruling laid down in Gonzales vs. Aldana, 107 Phil. 794 (1960), which held that veterans are given not only preference in appointment but also the right to retain the position as against another appointee, is not applicable herein as petitioner Seloterio was not being replaced by another appointee. For one, his appointment was temporary and, for another, the position was subsequently abolished by the City. 4. Noel Geollegue, Market Cleaner Elias Dequina, Laborer Gorgonio Torrechilla, Market Helper Geollegue and Torrechilla were dismissed effective January 16, 1968 while Dequia was terminated effective February 1, 1968. However, their appointments were all attested as "permanent" under Section 5(g) of Republic Act No. 2260 as unskilled laborers in the non-competitive service. They may not, therefore, be removed except for cause. 9 Their summary dismissal from the service was illegal and arbitrary. However, the abolition of their positions in the City budget for the Fiscal Year 1968-1969 for reasons of retrenchment win have to be sustained. We accordingly uphold respondent Court's award of backwages in favor of petitioners Geollegue, Dequina and Torrechilla from the date of their respective dismissal from the service to June 30, 1968, up to which latter date their positions were still included in respondent City's budget. Petitioners insist, however, on their reinstatement. While admittedly, their appointments were approved under section 5(g) of RA 2260 and, therefore, permanent in nature, we cannot accede to petitioners' prayer that we decree their reinstatement as respondents have clearly established the tenability of the retrenchment program they had embarked on thus impelling them to abolish the positions of herein petitioners. For we have held that the fundamental protection against removal of civil service employees "except for cause as provided by law" does not apply, where there has been no removal of the employee but an abolition in good faith of his position, for such abolition produces his lawful separation from the service. 10 It must also be stressed that a reduction of force may be effected in the interest of economy as provided by section 24(g) of the Civil Service Act (RA 2260), the law then prevailing. In the case at bar, there is sufficient evidence showing that respondent City of La Carlota was in dire financial difficulties which impelled respondents to resort to the abolition of petitioners' positions (except Abrot). Quoted hereunder is the finding of respondent Court on this aspect: It was shown that as of January 2, 1968, the only funds in the possession of the City Cashier was barely over P5,000.00 (Exhibit 16). In the 'Report' submitted by the City Auditor dated January 8, 1968 to Mayor Jalandoni, it was shown that, as of December 31, 1967, the total contractual and statutory obligations of the city amounted to P999,729.19 including the amount of P276,720.40 representing the unpaid back salaries and wages of city employees for the months of June, October, November and December 1967 (Exhibit 13). A verification of the city trial balance as of said date showed on overdraft of P166,295.45. On January 11, 1968, the new municipal board passed a resolution authorizing the city mayor to solicit a loan of P120,000.00 from the Philippine National Bank 'in order to pay the salaries and wages of the city employees and laborers on time'. Although, the Philippine National Bank advanced the sum of P20,000.00 on the personal guaranty of the city mayor and the members of

the municipal board, the resolution was disapproved by the Department of Finance on the ground that the City of La Carlota has not yet paid a previous budgetary loan of P150,000.00 to the Central Bank of the Philippines (Exhibit 5). The total unpaid salaries of the city employees for the months of June, October, November and December 1967 was P276,720.40 (Exhibit 31). Included among those employees who failed to received their salaries for the said months were the herein plaintiffs-appellants who were paid their back salaries for the said period only on June 30, 1968 (Exhibits 20-25). 11 We are bound by the foregoing factual finding of the Court of Appeals, in the absence of any showing that there has been a misapprehension of facts or that a grave abuse of discretion was committed in the appreciation of the evidence, or that the situation calls for an exception to the general rule. 12 WHEREFORE, modifying the Decision under review, in that Florentino Pagunsan is excluded from this judgment, respondents City of La Carlota and City Mayor Luis G. Jalandoni, or the incumbent City Mayor of La Carlota, are hereby ordered to pay petitioners Gorgonio Torrechilla, Noel Geollegue and Elias Dequia back salaries from their respective dates of dismissal up to June 30, 1968. The judgment under review is affirmed in all other respects. No pronouncement as to costs. SO ORDERED.

G.R. No. L-52091 March 29, 1982 TERESO V. MATURAN, petitioner-appellant, vs. Mayor SANTIAGO MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO DUTERTE, Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN LEYTE, respondents-appellees. DE CASTRO, J.: This case was certified to this Court by the Court of Appeals pursuant to its resolution dated October 30, 1979, the issue raised herein being purely legal, which is the interpretation of Presidential Decree No. 12-A and Letter of Instruction No. 14 in relation to the present case. Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965 with a compensation of P540.00 per annum. On October 1, 1967 he was promoted to the rank of police sergeant at P720.00 per annum. On October 8, 1968 and July 1, 1969 petitioner's salary was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was renewed. Likewise on July 1, 1971 his provisional appointment was renewed with an increase in pay in the amount of P2,640.00 per annum. On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from office because of two pending criminal cases against him, namely Criminal Case No. 236, for falsification of public document by making untruthful statement in the narration of facts, and Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent Vice-Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together with Chief of Police Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations pursuant to the Letter of Instruction No. 14 of the President of the Philippines. Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on January 19, 1973 and petitioner was accordingly informed thereof. In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that Letter of Instruction No. 14 does not apply to him. In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and November 5, 1973, respectively. In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner that due to the dismissal of the aforesaid criminal cases, the latter's preventive suspension has been lifted and petitioner was directed to report for duty to his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of Police Francisco Duterte refused to accept the former in the police force. Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply

letter dated August 13, 1974 the Deputy Executive Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of his suspension as directed in the National Police Commission's letter dated January 12, 1974 is no longer feasible, the same having been rendered moot and academic; that said office had occasion to rule that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to include both local and national officials. Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May 21, 1974 petitioner filed a petition for mandamus with claim for back salaries, traveling expense and damages before the Court of First Instance of Southern Leyte, Branch III. It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of paragraph 7 of Presidential Decree No. 12-A which provides: 7. Members of the police force who have been preventively suspended shall, upon exoneration be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension; that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A which was promulgated on October 4, 1972 and which governs policemen with pending cases; and that Letter of Instruction No. 14 under whose provisions petitioner was made to resign is not applicable to policemen. In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely entered in his duly sworn information sheet that he is a high school graduate of the University of Manila during the school year 1954-55, but in his Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he feloniously alleged and/or entered therein that he is a graduate of the Pana-on Academy in the school year 1950-51 when in truth he was only a second year high school student; that petitioner, who has voluntarily resigned, needs a new appointment and has to meet the qualifications required by law among which, are, that he must be at least a high school graduate and not over 33 years of age; that petitioner falls short of these requirements; and that petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes got drunk while on duty. On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit. The court a quo agreed with the opinion of the National Police Commission that resignations submitted by members of the police force in compliance with the provisions of Letter of Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement is not the proper remedy. The court also said that the evidence of conflicting entries on petitioner's two information sheets have not been denied or rebutted, hence the preponderance of evidence is against the petitioner that he is not a high school graduate, as he could not have graduated in two high schools, one in the University of Manila during the school year 1954-55 and the other at the Pana-on Academy during the school year 1950-51. Lastly, the trial court ruled that since all petitioner's appointment were provisional, he can be removed at any time by the appointing power, Mayor Maglana. On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of respondents to submit their brief, the case was submitted for decision on November 16, 1976. Petitioner made the following assignment of errors: FIRST ERROR THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE LEGAL AND VALID; SECOND ERROR THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR MAGLANA; THIRD ERROR THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY; and FOURTH ERROR

THE COURT BELOW ERRED IN DISMISSING THIS CASE AND DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND TRAVELING EXPENSES. Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the power to dismiss or remove a member of the police force has been transferred from the Mayor to the Police Commission. Hence, the acceptance of petitioner's resignation by respondent Mayor on January 19, 1973 is null and void because the latter is no longer clothed with authority to dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses that Letter of Instruction No. 14 under whose provisions he was made to resign is not applicable to him as said Instruction covers only officials and employees with pending cases excluding policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained on October 10, 1974 to justify his reappointment. Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation Boards in the Police Commission to review and dispose of all administrative cases of city and municipal forces referred to the Commission. On October 4, 1972 Presidential Decree 12-A was promulgated providing for the procedure to be followed in case an administrative charge is filed against any member of the local police agency or when a member of the police force is accused in court of any felony or violation of law. Nowhere in the provisions of said Presidential Decrees show that the power to dismiss or remove has been transferred from the Mayor to the Police Commission as contended by petitioner. It was only on August 8, 1974 when such power was removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal police forces in an the municipalities of the province of Southern Leyte. Presidential Decree No. 531 states: SEC. 6. Power of administrative control and supervision. Administrative control and supervision over the several police and fire departments and jails composing each of the Integrated Police Forces herein constituted shall, prior to the transfer provided for in Section 7 hereof, remain with the offices, agencies and officials in which said power is vested in accordance with existing laws; ... Accordingly, administrative matters, such as appointment promotion suspension separation and other disciplinary action ... and such other matters pertaining to personnel administration which are currently vested in and exercised by other officials pursuant to existing laws, rules and regulations shall remain with said officials, ... SEC. 7. Administrative control and supervision to be transferred to the Philippine Constabulary. After one year, but not later than two years, from the effectivity of this Decree, the power and administrative control and supervision provided for in Section 6 hereof shall be taken over and exercised by the Philippine Constabulary. ... It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on January 19, 1973 the latter still had the power to dismiss or remove the former. Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service eligibility for any position in the government. Such lack of a civil service eligibility makes his appointment temporary 1 and without a definite term and is dependent entirely upon the pleasure of the appointing power. 2 Although indicated as provisional and approved under Section 24 (c) 3 of Republic Act 2260 the petitioner's appointment did rot acquire the character of provisional appointment because of his lack of appropriate civil service eligibility for the position of municipal policeman. The Civil Service Commission cannot even legally approve his appointment as provisional as this act would constitute an unwarranted invasion of the discretion of the appointing power. 4 If the approval of his appointment as provisional under Section 24 (c) of Republic Act 2260 did not make it so, the fact remains that his appointment was temporary which could be terminated without any need to show that the termination was for cause. 5 The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of no moment. At the time he received his appointment, as aforestated, petitioner had no eligibility. As such what is required is a new appointment, not merely reinstatement. But even then, he cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary and the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position filled. 6 WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby affirmed. No costs. SO ORDERED. Footnotes 3 (c) Provisional Appointment. A provisional appointment may be issued upon prior authorization of the Commissioner in accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirement for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligible at the time of the appointment.

G.R. No. 93023 March 13, 1991 TOMAS D. ACHACOSO, petitioner vs. CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents. CRUZ, J:p The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not entitled to the guaranty because he is not a career official. These are the legal issues. The facts are as follows: Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the President of the Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other government officials, he filed a courtesy resignation. This was accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990, he protested his replacement and declared he was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President's directive. On the same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner. Achacoso was informed thereof the following day and was again asked to vacate his office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30, 1990. He then came to this Court for relief. In this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his duties as Administrator of the POEA. Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is one of the characteristics of the Career Service as distinguished from the Non-Career Service. 1Claiming to have the rank of undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in the Career Service: 3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the prerogatives of the President" to require them to submit courtesy resignations. Such courtesy resignations, even if filed, should be disregarded for having been submitted "under duress," as otherwise the President would have the power to remove career officials at pleasure, even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on Elections, 2 where we observed that "to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish" and that "a courtesy resignation cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position." He concludes that as his removal was illegal, there was no vacancy in the disputed office to which respondent Sarmiento could have been validly appointed. In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service position but submits that the petitioner himself is not a career executive service official entitled to security of tenure. He offers the following certification from the Civil Service Commission to show that the petitioner did not possess the necessary qualifications when he was appointed Administrator of the POEA in 1987: CERTIFICATION This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not participated in a Career Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to a rank in the CES and is not therefore a member of the Career Executive Service. xxx xxx xxx (Sgd.) ELMOR D. JURIDICO Executive Director

Reference is also made to the following rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service: c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of the bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible, provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination. (Emphasis supplied.) The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment, he came under the exception to the above rule and so was subject to the provision that he "shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher rank until he qualifies in such examination." Not having taken that examination, he could not claim that his appointment was permanent and guaranteed him security of tenure in his position. It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. 3 The appointment extended to him cannot be regarded as permanent even if it may be so designated. 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 the same pending the selection of a permanent or another appointee. 4 The person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority. In these circumstances, the acting appointee is separated by a method of terminating official relations known in the law of public officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority. When required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because removal imports the separation of the incumbent before the expiration of his term. 5 This is allowed by the Constitution only when it is for cause as provided by law. The acting appointee is separated precisely because his term has expired. Expiration of the term is not covered by the constitutional provision on security of tenure. There is a long line of cases affirming the rule that: . . . One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being no need the show that the termination is for cause. 6 The petitioner contends that his appointment was really intended to be permanent because temporary appointments are not supposed to exceed twelve months and he was allowed to serve in his position for more than three years. This is unacceptable. Even if that intention were assumed, it would not by itself alone make his appointment permanent. Such an appointment did not confer on the petitioner the appropriate civil service eligibility he did not possess at the time he was appointed, nor did it vest him with the right to security of tenure that is available only to permanent appointees. The case of Luego vs. Civil Service Commission 7 is not applicable because the facts of that case are different. The petitioner in Luego was qualified and was extended a permanent appointment that could not be withdrawn on the ground that it was merely temporary. In the case at bar, the petitioner was not eligible and therefore could be appointed at best only in a temporary capacity. The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 8 Palma-Fernandez vs. De la Paz, 9 and Dario vs. Mison, 10 are also not pertinent because they also involved permanent appointees who could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been a graceful way of withdrawing him from his office with all the formal amenities and no asperity or discord if only he had not chosen to contest it. But it was his right to do so, of course, although his challenge has not succeeded. WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

G.R. No. 142937

July 25, 2006

PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioner, vs. MARITA A. ANGARA and BEATRIZ T. LA VICTORIA, respondents. AUSTRIA-MARTINEZ, J.: Before the Court is a Motion for Clarification 1 dated April 9, 2006 filed by Marita A. Angara and Beatriz La Victoria (respondents). A brief background of the case: Respondents were Slot Machine Roving Token Attendants (SMRTAs) of the Philippine Amusement and Gaming Corporation (petitioner) assigned at its casino in Davao City. On June 28, 1997, they were dismissed from service on the ground of lack of trust and confidence. After their motion for reconsideration was denied, they filed an appeal memorandum with the Civil Service Commission (CSC). In its Resolution No. 991110 dated May 27, 1999, the CSC granted the appeal and directed petitioner to reinstate respondents to their former positions or, if no longer available, to comparable positions. Petitioner filed a petition for review with the Court of Appeals (CA) but the latter dismissed the petition for late filing. After its motion for reconsideration was denied, petitioner filed a petition for review on certiorari with this Court. On November 15, 2005, this Court rendered its Decision finding that the CA erred in dismissing the petition on procedural infirmities but nonetheless held that petitioners substantial contentions failed to invite judgment in its favor. Petitioner cannot justify respondents dismissal on loss of trust and confidence since the latter are not confidential employees. Thus, the Court denied the petition.2 On January 3, 2006, petitioner filed a Motion for Reconsideration but it was denied with finality by the Court in its Resolution dated February 22, 2006.3 Since the Resolution dated February 22, 2006 addressed to respondents at No. 8560 Fabian Yabut Street, 1212 Guadalupe Nuevo, 1200 Makati City was returned unserved, on June 5, 2006 the Court re-sent the Resolution to respondents at No. 017 Amparo Velez St., Bulua, Cagayan de Oro City. 4 On June 14, 2006, respondents filed the present Motion for Clarification, which in fact appears to be a partial motion for reconsideration. They contend that the Court inadvertently omitted to include in its decision that, aside from reinstatement, respondents shall be restored to their former positions without loss of seniority rights and shall be entitled to payment of their backwages, allowances and other benefits to which they should have been entitled had they not been illegally dismissed. In addition, respondents pray that considering the length of time the case has been pending final resolution, petitioner should be condemned to pay respondents not less than P200,000.00 as reimbursement for expenses and attorneys fees, as pleaded in their appeal memorandum before the CSC. The motion is partly granted. As a rule, a party who did not appeal from a decision of a court cannot obtain affirmative relief other than that granted in the appealed decision.5 This applies also to decisions of administrative or quasi-judicial tribunals. 6 In the present case, however, while respondents did not appeal from CSC Resolution No. 991110 dated May 27, 1999 which merely ordered reinstatement and that they raised the issue of backwages only in the present motion, these did not preclude them from praying for the monetary benefits provided by law. Where an ironhanded application of the rules will result in an unmistakable failure or miscarriage of justice, technicalities should be disregarded in order to resolve the case. 7 This Court is, therefore, constrained to relax the rules to give way to the supreme and overriding interest of labor and justice.

Indeed, laws and rules should be interpreted and applied not in a vacuum or in isolated abstraction but in light of surrounding circumstances and attendant facts in order to afford justice to all. 8 Article 279 of the Labor Code, as amended, provides that an illegally dismissed employee shall be entitled to reinstatement, full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. In De Guzman v. National Labor Relations Commission ,9 the Court elucidated on the normal consequences of a finding that an employee has been illegally dismissed, the statutory intent on the matter and nature of the twin remedies of reinstatement and payment of backwages: The normal consequences of a finding that an employee has been illegally dismissed are, firstly, that the employee becomes entitled to reinstatement to his former position without loss of seniority rights and, secondly, the payment of back wages corresponding to the period from his illegal dismissal up to actual reinstatement. The rationale therefor is clearly obvious. Reinstatement restores the employee to the position from which he was removed, i.e., to his status quo ante dismissal, while the grant of backwages allows the same employee to recover from the employer that which he lost by way of wages because of his dismissal. These twin remedies of reinstatement and payment of back wages make whole the dismissed employee, who can then look forward to continued employment. These two remedies give meaning and substance to the constitutional right of labor to security of tenure. However, the two remedies are distinct and separate. Though the grant of reinstatement commonly carries with it an award of back wages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. Reinstatement is a restoration to a state from which one has been removed or separated. On the other hand, the payment of backwages is a form of relief that restores the income that was lost by reason of the unlawful dismissal. The award of one is not a condition precedent to an award of another. Backwages may be ordered without ordering reinstatement; conversely, reinstatement may be ordered without payment of back wages. Thus, in a number of cases, the Court, despite its order of reinstatement or award of separation pay in lieu of reinstatement deemed it appropriate not to award back wages as penalty for the misconduct or infractions committed by the employee.10 The factual milieu of the present case does not warrant exception to the general principle that an employee is entitled to reinstatement and to receive backwages where there is a finding of illegal dismissal. Loss of trust and confidence not being a just cause for respondents dismissal since they are not confidential employees, they are entitled to reinstatement, backwages, inclusive of allowances, and to their other benefits or their monetary equivalent computed from the time their compensation was withheld from them up to the time of their actual reinstatement. On the prayer for an award for litigation and attorneys fees, it is already too late in the day for respondents to bring this matter to the Courts attention in their Motion for Clarification, a somersault that neither law nor policy will sanction. Respondents chose to be silent and never lifted a finger to raise this matter in a separate appeal before the CA. As a result, they are deemed to have waived this matter and they cannot now be heard to seek affirmative relief at this late stage. WHEREFORE, the Motion for Clarification is partly GRANTED. In addition to reinstatement to their former positions, or to substantially equivalent ones, without loss of seniority rights, respondents are declared entitled to full backwages and other benefits from the time of their illegal dismissal up to actual reinstatement. For a determination of the amount of backwages to be paid to them, the case is REMANDED to the Civil Service Commission, which is instructed to further receive or require such evidence on this point as may be necessary. SO ORDERED.

G.R. No. 123708 June 19, 1997 CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent. REGALADO, J.: The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered

the reinstatement of herein private respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation (PAGCOR), but without prejudice to the filing of administrative charges against him if warranted. 1 The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence Division of PAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by respondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results. On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesting reinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent was not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the decision of the MSPB. 2 Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. However, in a resolution dated August 15, 1995, 3 the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 which took effect on June 1, 1995. On September 14, 1995, the Court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a confidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the "proximity rule" enunciated in the case of Grio, et al. vs.Civil Service Commission, et al. 4 It likewise held that Section 16 of Presidential Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution. Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a confidential employee. Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for several reasons, viz.: (1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section 16 thereof that all employees of the casinos and related services shall be classified as confidential appointees; (2) In the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al., classified PAGCOR employees as confidential appointees;
5

the Supreme Court has

(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointees by operation of law; and (4) Based on his functions as a member of the ISS, private respondent occupies a confidential position. Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. They additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation. On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, which determines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCOR employees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of the classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al. 6 We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied. Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was then in force when Presidential Decree No 1869 creating the Philippine Amusement and Gaming Corporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as policy-determining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated t thereon, with the text thereof providing as follows:

All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors. All employees of the casinos and related services shall be classified as "confidential" appointees. On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration of a confidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis. In reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of the 1987 Constitution. 7 This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)." However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as 'confidential' appointees." While such executive declaration emanated merely from the provisions of Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determining, primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book V of Executive Order No. 292 or the administrative Code of 1987. 8 This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and all-encompassing. Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be considered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential; and, secondly, in the absence of such declaration, when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. 9 At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise. When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." In the case of Piero, et al. vs. Hechanova, et al., 10 the Court obliged with a short discourse there on how the phrase " in nature" came to find its way into the law, thus: The change from the original wording of the bill (expressly declared by law . . . to be policy-determining, etc.) to that finally approved and enacted ("or which are policy-determining, etc. in nature") came about because of the observations of Senator Taada, that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy-determining, which should not be the case. The Senator urged that since-the Constitution speaks of positions which are "primarily confidential, policy-determining or highly technical in nature," it is not within the power of Congress to declare what positions are primarily confidential or policy-determining. "It is the nature alone of the position that determines whether it is policydetermining or primarily confidential." Hence, the Senator further observed, the matter should be left to the "proper implementation of the laws, depending upon the nature of the position to be filled", and if the position is "highly confidential" then the President and the Civil Service Commissioner must implement the law. To a question of Senator Tolentino, "But in positions that involved both confidential matters and matters which are routine, . . . who is going to determine whether it is primarily confidential?" Senator Taada replied: SENATOR TAADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conflict then it is the Court that determines whether the position is primarily confidential or not (Emphasis in the original text). Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determines whether a position is primarily confidential, policy-determining or highly technical. And the Court in the aforecited case explicity decreed that executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusive in case of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution. 11 In other words, Section 16 of Presidential Decree No. 1869 cannot be

given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines. 12 It may well be observed that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness to be determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified. The question that may now be asked is whether the Piero doctrine to the effect that notwithstanding any statutory classification to the contrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whether a position is primarily confidential, policy-determining or highly technical is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987, 13Book V of which deals specifically with the Civil Service Commission, considering that from these later enactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" was deleted. 14 We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions, to wit: MR. FOZ. Which department of government has the power or authority to determine whether a position is policydetermining or primarily confidential or highly technical? FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the court. The Supreme Court has constantly held that whether or not a position is policydetermining, primarily confidential or highly technical, it is determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. However, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Since the term "highly technical" means something beyond the ordinary requirements of the profession, it is always a question of fact. MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR. BERNAS. I agree that that should be the general rule; that is why we are putting this as an exception. MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the source of practices which amount to the spoils system. FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primarily confidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to make it such ; it is the nature of the duties which makes a position primarily confidential. MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical as an exception is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that there are certain positions which should not be determined by competitive examination . For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policydetermining administrative bodies, for that matter? There are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit and fitness (Emphasis supplied). 15

It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. It must be stressed further that these positions are covered by security of tenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position as primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." According, the Piero doctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected. We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs. Mallare, et al., 16 which held that: Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. . . . (Emphasis supplied). This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which are substantially similar to the case at bar, involving as it did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held that the mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their positions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared: As previously pointed out, there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. Certainly, it is extremely improbable that the service demands any such close trust and intimate relation between the appointing official and, not one or two members alone but the entire Customs patrol (Harbor Police) force, so that every member thereof can be said to hold "primarily confidential" posts . (Emphasis supplied). It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was, to repeat, the latter's belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority, the element of trust between them is no longer predominant. 17 Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee, to wit: 1. As an Internal Security Staff member, private respondent routinely a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions and other anomalous activities among the employees and customers; b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas; c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanted incidents at the gaming and non-gaming areas; d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling; e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during transfer of yields to Treasury. 18 Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS, his position

does not involve "such close intimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would insure "freedom from misgivings of betrayals of personal trust." 19 2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of their official duties. An ISS member is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directives of the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowest in the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee. 3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12. Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debate that private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck by the ordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the position occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appears nothing to suggest that private respondent's position was "highly" or, much less, "primarily" confidential in nature. The fact that, sometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not suffice to characterize his position as primarily confidential. 20 In addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there stated is as follows: The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides that the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled him to damages under the Civil Code. (Emphasis ours). Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee, for the simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therein. That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidently, therefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases where its validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law. 21 WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto. SO ORDERED. Separate Opinions VITUG, J., concurring: The appeal in this case appears to confine itself to the issue, in main, of whether or not respondent Rafael Salas, an Internal Security Staff member of Philippine Amusement and Gaming Corporation ("PAGCOR") assigned to the casino at the Manila Pavilion Hotel, is a confidential employee. The Civil Service Commission ("CSC") which upheld the dismissal of Salas ruled that the latter was a confidential employee by operation of law and that, consequently, there was no act of dismissal to speak of but, rather, a mere expiration of an employee's term of office. The Court of Appeals held otherwise and ordered the reinstatement of Salas with full backwages for having been illegally dismissed by PAGCOR albeit without prejudice to the filing of administrative charges against him such as may be warranted. I agree with the thorough and exhaustive ponencia of Mr. Justice Florenz D. Regalado supporting the theory of the appellate court that Salas, not being a confidential employee, may not dismissed for mere lack of trust or confidence; nevertheless, I should like to bring into focus the phrase, "without prejudice to the filing of administrative charges against (Salas) if warranted," found in the dispositive portion of the decision of the appellate court. It would seem to me that the adverse findings arrived at by the intelligence Division of PAGCOR which the Board of Directors relied upon to terminate the services of Salas on ground of loss of confidence could well be constitutive of the administrative infractions that the appellate court must have had in mind. The ponenciaitself states:

The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by respondent. The polygraph tests taken by the latter also yielded corroborative and unfavorable results. In my view, the case should, instead, be remanded to the CSC to specifically meet head-on PAGCOR's foregoing findings and to thereby fully ventilate, as well as pass upon, the appeal to it (CSC) on that basis with an opportunity for a hearing adequately accorded to Salas. I vote, therefore, for remanding the case to the Civil Service Commission for further proceedings. Separate Opinions Footnotes 7 This provision reads as follows: "The Civil Service embraces all branches. subdivisions; instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters." 8 Sec. 12. Powers and functions. The Commission shall have the following powers and functions: xxx xxx xxx (9) Declare positions in the Civil Service as may be primarily confidential, highly technical or policydetermining: . . . 9 Salazar vs. Mathay, Sr., et al., L-44061, September 20, 1976, 73 SCRA 275. 11 No officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Sec. 2[3], Art. IX-B, 1987 Constitution). 14 Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. (Sec. 2[2], Art. IX-B, 1987 Constitution). The Commission shall have the following powers ad functions: . . . Declare positions in the Civil Service as may properly be primarily confidential, highly technical or policy-determining. (Sec. 12[9] Book V. E.O. No. 292).

G.R. No. L-3881

August 31, 1950

EDUARDO DE LOS SANTOS, petitioner, vs. GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USON, in his capacity as City Auditor, respondents. TUASON, J.: This is an original action of quo warranto questioning the legality of the appointment of respondent Gil R. Mallare to the office of city engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. The real issue however is the legality of the petitioner's removal from the same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is the petitioner's contention that under the Constitution he can not be removed against his will and without cause. The complaint against the other respondents has to do merely with their recognition of Mallare as the lawful holder of the disputed office and is entirely dependent upon the result of the basic action against the last-mentioned respondent (Mallare). Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the

duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an ad interimappointment by the President to the same position, after which, on June 3, the Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings. The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified service." And this Court, in an exhaustive opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled that officers or employees in the unclassified as well as those in the classified service are protected by the above-cited provision of the organic law. But there is this difference between the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the President) to remove at pleasureany of the officers enumerated therein, one of whom is the city engineer. The first question that presents itself is, is this provision still in force? Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, . . . ." It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code, he (Governor-General now President) may remove at pleasure any of the said appointive officers," is incompatible with the constitutional inhibition that "No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." The two provisions are mutually repugnant and absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits. The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested that the President's pleasure is itself a cause. The phrase "for cause" in connection with the removals of public officers has acquired a welldefined concept. "It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public."(43 Am. Jur., 47, 48.) Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service are concerned is urged. It is contended that only officers and employees in the classified service should be brought within the purview of Article XII of the Constitution. Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the Government shall be provided by law. Appointments in the Civil Service, except as those which are policy-determining, primarily confidential or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination." The first clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service is contemplated, except positions "which are policy-determining, primarily confidential or highly technical in nature." This theory is confirmed by the enactment of Commonwealth Act No. 177 on November 30, 1936 to implement Article XII of the Constitution. Commonwealth Act No. 177 explains Civil Service almost in the identical words of that article of the organic law. As a contemporaneous construction, this Act affords an index to the meaning of Civil Service as conceived by the framers of the Constitution. "The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight." (U.S. vs. Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem. Murray vs.Hoboken Land and Improv. Co., 18 How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.; 11 Am. Jur. 699.) The principle of express mention and implied exclusion may be made use of also to drive home this point. We are led to the same conclusion by the existing provisions at the time of the adoption of the Constitution. Civil Service as embracing both classes of officers and employees possessed definite legal and statutory meaning when the Constitution was approved. Section 670 of the Revised Administrative Code already provided that "Persons in the Philippine civil service pertain either to the classified service," and went on to say that "The classified service embraces all not expressly declared to be in the unclassified service." Then section 671 described persons in the unclassified service as "officers, other than the provincial treasurers and assistant directors of bureaus or offices, appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the government whose appointments are by law vested in the President of the Philippines alone." The rules of the construction inform us that the words use in the constitution are to be given the sense they have in common use. (Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R., 1434; 73 Law ed., 894.) It has been said that

we must look to the history of the times, examine the state of things existing when the Constitution was framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233), and interpret it in the light of the law then in operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.) Attention is drawn to supposed inconveniences of tying the hands of the appointing power in changing and shifting officers in the unclassified service. "If it is argued all important officers and employees of the government falling within the unclassified service as enumerated in section 671 of the Revised Administrative Code as amended by Commonwealth Act No. 177, may not be removed by the President except for cause as provided by law, . . . the President would be seriously crippled in the discharge of the grave duty and responsibility laid upon him by the Constitution to take care that the laws faithfully executed." Questions of expediency are, of course, beyond the province of the court to take into account in the interpretation of laws or of the Constitution where the language is otherwise clear. But the argument is, we think, unsound even if the case be approached from this angle. It contains its own refutation. The Constitution and the law implementing it afford adequate safeguards against such consequences as have been painted. The argument proceeds, contrary to its context, on the assumption that removes of civil service officers and employees are absolutely prohibited, which is not the case. The Constitution authorizes removals and only requires that they be for cause. And the occasions for removal would be greatly diminished if the injunction of section 1 of Article XII of the Constitution that appointments in the civil service shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination would be adhered of meticulously in the first place. By far greater mischiefs would be fomented by an unbridled authority to remove. Such license would thwart the very aims of the Constitution which are expounded by Dean Aruego, himself a member of the Constitutional Convention, in the following remarks copied with approval in Lacson vs. Romero, supra: The adoption of the "merit system" in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service. The "merit system" was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1879 by the Constitutional right of President of the United States to act alone in the matter of removals. From the time of Andrew Jackson the principle of the "To the victor belongs the spoils' dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency. Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurmann Commission advocated in its reports that "the greatest care should be taken in the selection of the officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." The fifth act passed by the Philippine Commission created a Board of Civil Service. It instituted a system here that was far more radical and thorough than that in the United States. The Governor-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud. Necessity for Constitutional provision. The inclusion in the constitution of provisions regarding the "merit system" is a necessity of modern times. As its establishment secures good government the citizens have a right to accept its guarantee as a permanent institution. Separation, suspension, demotions and transfers. The "merit system" will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes and in the manner provided by law. This means that there should be bona fide reasons and action maybe taken only after the employee shall have been given a fair hearing. This affords the public employees reasonable security of tenure. (II Aruego's Framing of the Constitution, 886, 887, 890.) As has been seen, three specified classes of positions policy-determining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category determinable at the will of the officer that makes them. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policydetermining. A city engineer does not formulate a method of action for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability. Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc," and warns that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court." The question arises as to whether this judgment operates as invalidation of section 2545 of the Revised Administrative Code or a part of it so as to need at least eight votes to make effective. The answer should be in negative. We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional. What we declare is that the particular provision thereof which gave the Chief Executive power to remove officers at pleasure has been repealed by the Constitution and ceased to be operative from the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and vigor, and unconstitutional legislation presupposes posteriority in point of time to the Constitution. It is a statute that "attempts to validate and legalize a course of conduct the effect of which the Constitution specifically forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in the nature of things, contravene or pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before this petitioner was appointed. Incidentally, the last discussion answers and disposes of the proposition that in accepting appointment under section 2545 of the Revised Administrative Code, the petitioner must be deemed to have accepted the conditions and limitations attached to the appointment. If the clause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated when petitioner's appointment was issued, the appointee can not presumed to have abided by this condition. We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed for cause, and that respondent Mallare's appointment is ineffective in so far as it may adversely affect those emoluments, rights and privileges. Without costs. Separate Opinions BENGZON, J., concurring: I concur in the result solely upon the ground that section 2545 of the Baguio Charter (Administrative Code) empowering the President to remove the City Engineer at pleasure has been impliedly repealed by section 22 of Commonwealth Act No. 177 which expressly provides for the first time (following the mandate of the Constitution),that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law." I must decline to go into the matter of alleged conflict with the Constitution, first, because plaintiff is precluded from raising that question (Zandueta vs. De la Costa, 66 Phil., 615); second, because every law is presumed to be constitutional unless eight Justices of this Court are clearly of a contrary opinion, 1 and third, because that subject need not be inquired into, except when absolutely necessary for the disposition of the controversy.

G.R. No. 85479 March 3, 1992 PERFECTO ESPAOL, petitioner, vs. THE HON. CIVIL SERVICE COMMISSION, HON. FEDERICO N. ALDAY, JR., in his capacity as ADMINISTRATOR, NATIONAL IRRIGATION ADMINISTRATION; and ORLANDO L. BULSECO, respondents.

REGALADO, J.: In this special civil action for certiorari, petitioner seeks the reversal of Resolution No. 88-755, 1 issued by public respondent Civil Service Commission in September 21, 1988 in MSPB Case No. 1564, which reversed the decision of the Merit Systems Protection Board and confirmed the appointment of private respondent Orlando L. Bulseco. In September, 1986, the position of Regional Manager of the National Irrigation Administration, Regional Office No. 2, Cauayan, Isabela, became vacant. At that time, petitioner Perfecto Espaol was Chief of the Engineering Division, while private respondent Orlando L. Bulseco was Chief Design Engineer. In the organizational chart of the National Irrigation Administration (NIA), the position of Chief Design Engineer is below the Chief of the Engineering Division, and the latter is considered next-in-rank to the position of Regional Manager. Private respondent Bulseco was appointed to the vacant position of Regional Manager effective October 1, 1986, pursuant to Resolution No. 5302-86 which was passed by the Board of Directors of NIA. As a consequence, petitioner Espaol filed a letter protest 2 with the Merit Systems Protection Board (MSPB), alleging that petitioner is the employee next-in-rank to the position of Regional Manager and, as such, he has promotional priority over Bulseco. MSPB referred the protest to the NIA Administrator for appropriate action. The protest was dismissed by the NIA Administrator for lack of merit on the ground that "in the evaluation conducted, Mr. Bulseco has advantage over Mr. Espaol on the factors of performance and potential." 3 Petitioner appealed the dismissal of his protest to the MSPB. As a result of the evaluation made on the qualifications of Espaol and Bulseco, taking into consideration such factors as educational attainment, experience, eligibility and training, the MSPB ruled that the individual qualifications of the contestants exceed the qualification requirements, especially those of respondent Bulseco. However, by virtue of petitioner's ranking in the organizational chart of NIA and pursuant to the provisions of Sections 2 and 4 of Resolution No. 83-343 (Rules on Promotion) of the Civil Service Commission, the MSPB "directed that Engr. Perfecto C. Espaol be appointed instead to the position of Regional Manager, NIA Regional Office No. 2." 4 Thereafter, respondent Bulseco appealed to the Civil Service Commission (CSC). In reversing the decision of the MSPB, thereby sustaining the appointment of private respondent, the CSC held in its Resolution No. 88-755 of September 21, 1988 that: . . . the Commission finds that prior to Bulseco's appointment as Regional Manager of NIA, Region 2, he was appointed Project Manager of the Chico River Project in Tabuk, Kalinga-Apayao under a permanent status in September, 1979. Notably, the position is of job level 22, as compared to that of a Division Manager (level 20) and Regional Manager (level 23). At that time protestant Espaol was already a Chief Regional Engineer (now Division Manager) of Region 2, a position with job level 20. However, in that same year Bulseco accepted an offer for a position of Irrigation Consultant in Indonesia, prompting him to resign from his position as Project Manager. When Bulseco came back from abroad in 1981, he was offered the only available, position of Chief Design Engineer of NIA, Region 2. This is a clear demotion but he accepted the same with an assurance from the NIA Administrator that he would soon be promoted to a higher position in the Region. Shortly thereafter, or on October 8, 1981, he was assigned as Acting Provincial Irrigation Manager (PIM) for the province of Cagayan. This position is of a job level 20. On October 16, 1983, he was designated Coordinator of the National Irrigation Systems Improvement Project (NISIP), a foreign-assisted Project, at Abulug-Apayao. This position is again of job level 20. Thus we find merit as to Espaol's contention that Bulseco was under him because insofar as actual plantilla position is concerned,. the position of Bulseco is still Chief Design Engineer, a position really under Espaol. However Bulseco, because of his designations, performed the duties and functions appurtenant to that of PIM and Coordinator of NISIP which positions are of equal and next-in-rank, respectively, to the contested position. So that prior to his appointment to the contested position, he was actually the Coordinator of NISIP. On the other hand, the Organizational Chart of NIA shows that there are six (6) next-in-rank positions to the contested position of Regional Manager and that, all these are held by other employees, including Mr. Espaol. On the third ground, we take notice (of) that portion of the MSPB decision which states: From the above comparative data, it is evident that both contestants meet the qualification requirements for the position. In fact their individual qualifications exceed those requirements especially that (sic) of Engr. Bulseco . Without further delving into the detailed comparative qualifications of the contestants, the Commission considers this an indication or an admission that Engr. Bulseco indeed possesses superior qualifications than Espaol, not discounting his relevant experience abroad. It is shown, however, that the MSPB accorded more weight to the finding that Espaol is the one next-in-rank to the contested position and pursuant to Section 4. of CSC Resolution No. 83-343, which states:

Section 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified . . . shall be promoted to the position when it becomes vacant. Espaol has an edge and promotional priority over Enqr. Bulseco. But granting arguendo that Bulseco is not really the person next-in-rank, the MSPB seems to have missed the second paragraph of the same section which provides: However, the appointing authority may promote an employee not next-in-rank who possesses superior qualification and competence compared to a next-in-rank. This Commission, in several occasions, resolved the issue in favor of employees who were not next-in-rank but were promoted to the contested position. In the case of Corpuz vs. Lopez, Jr., March 1, 1982, the then Commission ruled that: Although both may be considered for promotion and that the next-in-rank should be given preference for promotion, the appointing authority may appoint an employee who is not next-in-rank so as to choose only the most competent and best qualified for the position. xxx xxx xxx WHEREFORE, foregoing premises considered, this Commission resolved to find as it hereby finds the appeal meritorious. Accordingly, the decision of MSPB dated April 14, 1988 is therefore set aside and the appointment of Orlando L. Bulseco as Regional Manager, Cauayan, Isabela, is thus confirmed. 5 Hence, this petition. At the outset, we affirm the fact that the CSC acted correctly in reversing the decision of the MSPB and in confirming the appointment of private respondent Bulseco as Regional Manager. We shall here rule on the merits of the petition of Espaol who insists that the MSPB did not err in setting aside the appointment made by the NIA Administrator. Section 19, paragraph 6, Article VIII of Presidential Decree No. 807 defines a qualified next-in-rank as an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the respondent commission. Pursuant to. the provisions of Section 9(b) and Section 19 of Presidential Decree No. 807, the CSC promulgated Resolution No. 83-343 (Rules on Promotion); Sections 2 and 4 of which provide: Sec. 2. Whenever a position in the first level becomes vacant, the employees in the ministry or agency who occupy positions deemed to be next-in-rank to the vacancy, shall be considered for promotion. In the second level, those employees in the government service who occupy next-in-rank position shall be considered for promotion to the vacancy. Sec. 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and, meets the other conditions for promotion shall be promoted to the higher position when it becomes vacant. However, the appointing authority may promote an employee who is not next-in-rank but, who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the requirements for the position. 6 Petitioner contends that on the basis of the organizational chart 7 of the NIA, be is considered as next-in-rank to the contested position and, therefore, he has a promotional priority over respondent Bulseco. He likewise claims that assuming that the second paragraph of Section 4 of Resolution No. 83-343 provides an exception to the next-in-rank rule, the same shall apply only when the person who is next-in-rank merely meets the minimum requirements, but not where, as in the case of herein petitioner, the qualifications of the next-in-rank far exceed the requirements for appointment to the contested position. In other words, petitioner is of the opinion that one who is not next-in-rank, may be promoted only if the next-in-rank merely meets the minimum requirements for the position. However, where the qualifications of the next-in-rank exceeds the minimum requirements, it is mandatory that the next-in-rank be promoted to the position. The contention is devoid of merit. Fundamental is the rule that appointment is an essentially discretionary power and must be performed by the officer in whom it is vested according to his best lights, the only condition being that the appointee shall possess the qualifications

required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. 8 Consequently; it was further held that where respondent commission has acknowledged that both the petitioner and the private respondent were qualified for the contested position that recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the appointment made by the head of the office. In the case at bar, there is no dispute that both petitioner Espaol and private respondent Bulseco exceed the qualification standards for appointment to the position of Regional Manager. It is likewise not denied that, as originally found by the Administrator, respondent Bulseco is more qualified than petitioner. The fact alone that both contestants meet the minimum qualifications required by law should have restrained MSPB from acting on, much less in granting, the appeal of herein petitioner except, of course, to affirm the appointment of private respondent. Unfortunately, the MSPB opted to disregard the choice made by the appointing authority and appointed herein petitioner instead, invoking therein the next-in-rank rule provided for under Section 19 of Presidential Decree No.807, as well as Sections 2 and 4 of CSC Resolution No. 83-343. In the case of Taduran vs. Civil Service Commission, et al, 9 this Court had the opportunity to pass upon the extent of the applicability of the next-in-rank rule. The pertinent provisions of Presidential Decree No. 807 state: Sec. 19. Recruitment and Selection of Employees..---xxx xxx xxx (3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion. xxx xxx xxx (5) If the vacancy.is not filled by promotion as provided herein the same shall be filled by transfer of present employees in the government service, by reinstatement, by re-employment of persons separated through reduction in force, or by appointment of persons with the civil service eligibility appropriate to the positions. xxx xxx xxx (6) A qualified next-in-rank employee shall have the right to appeal initially, to the department head and finally to the Office of the President an appointment made (1) in favor of another next-in-rank employee who is not qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who is appointed by transfer and not next- in-rank, or by reinstatement, or by original appointment if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment: . . . which Taduran interpreted in this wise: We find no mandatory nor peremptory requirement in the foregoing provision that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of apppointment. . . . In Medenilla vs. Civil Service Commission et al., disregarded even in case of promotions. Thus:
10

this Court went further by holding that the next-in-rank rule may be

. . . We have already held in cases subsequent to Millares that the next-in-rank-rule is not absolute; it only applies in case of promotions . . . . And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. . . . There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law. In a recent case, 11 we noted further "that even if the vacancy here had been filled by promotion rather than by lateral transfer, the concept of "next-in-rank" does not import any mandatory or peremptory requirement that the person next in

rank must be appointed to the vacancy. What Section 19(3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is filled by a promotion, the person holding the position next in rank thereto " shall be considered for promotion."" The rationale advanced for the limitation imposed on the next-in-rank rule is because the rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. Hence, to apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment. 12 Time and again we have held on to the principle that the determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the department head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a certain job; who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the head of office in this regard. 13 Elucidating further, we held in Abila vs. Civil Service Commission, et al., supra, that "(t)he head of the office is the person on the spot. He occupies the ideal vantage point from which to identify and designate the individual who can best fill the post and discharge its functions in the government agency he heads. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function." We deem it necessary, under the circumstances herein obtaining, to declare that Section 4 of CSC Resolution No. 83-343 has been superseded by Section 2 of Rule 3 of CSC Resolution No. 89-799 which reads: Sec. 2. Positions in the Second Level. When a vacancy occurs in the second level of the career service as herein defined the employees in the department who occupy the next lower positions in the occupational group under which the vacant position is classified, and in other functionally related occupational group, who are competent and qualified and with appropriate civil service eligibility shall be considered for appointment to the vacancy. In the aforestated case of Abila, we made a categorical pronouncement that "(w)hen, in the exercise of its rule-making power, it promulgated Section 4 of its earlier Resolution No. 83-343, the Commission clearly exceeded the scope of its statutory authority since the Civil Service Law itself, in Section 19(3) of P.D. No. 807, had simply provided that persons next in rank who are qualified "shall be considered for promotion." The current regulation found in Section 2 of Rule III of the Commission's Resolution No. 89-779 is, fortunately, more consistent with the Commission's enabling statute." Parenthetically, anent the observation of respondent commission and private respondent that Section 19 (6) of Presidential Decree No. 807 has been repealed by Section 8 of Presidential Decree No. 1409, suffice it to say that it is the power of review by the President, not the next-in-rank rule, which has been repealed by the latter decree. FOR ALL THE FOREGOING CONSIDERATIONS, no abuse of discretion being imputable to public respondents in this case, the petition at bar is hereby DISMISSED. SO ORDERED.

G. R. No. L-40295 July 31, 1978 ABRAHAM C. SISON, petitioner, vs. HON. EPI REY PANGRAMUYEN, Commissioner of Civil Service; GERONIMO LIPUMANO, Mayor, Olongapo City; ALFREDO D. OCAMPO, Officer-in-Charge, Civil Service, Regional Office No. 3, San Fernando, Pampanga; and EUREKA F. MALIWANAG, Assistant City Assesor, Olongapo City, respondent. BARREDO, J: Petition denominated as for certiorari us and quo warranto and (1) seeking the annulment of the actions of respondents Regional Director and commissioner of Civil Service in respectively attesting and affirming such attestation of private respondent Eureka F. Maliwanag's appointment as Assistant City Assessor of Olongapo City, extended by the respondent Mayor of said city on November 23, 1973, and (2) assailing the validity of said respondent Commissioner's decision of

May 3, 1974 dismissing petitioner's protest and his resolution dated June 24, 1974 denying reconsideration of said decision, and (3) further asking that respondent Commissioner be mandated to appoint petitioner as such Assistant City Assessor and that private respondent Maliwanag be declared as unlawfully usurping said position under a void and illegal appointment. In sum, petitioner would want the Court to hold that since at the time of the appointment in dispute, he was Chief Deputy Assessor exercising, according to his allegation, immediate administrative control and supervision over respondent Maliwanag, who was Senior Deputy Assessor, and inasmuch as he has superior educational and appropriate civil service eligibilities to those of said respondent, the appointment aforementioned extended to the latter by respondent City Mayor is illegal and contrary to law being violative of the rule of next-in-rank. Petitioner maintains that upon the promotion of the Assistant City Assessor to the position of City Assessor, he, petitioner, instead of respondent Maliwanag should have been appointed thereto. We have carefully considered petitioner's contentions in his petition as well as his reply to the answers of the respondents and, at best, We find the issues raised by him to be rather controversial, with the result that it is difficult for Us to categorize respondent public official's impugned actuations as tainted with grave abuse of discretion. Maliwanag's appointment was recommended by the City Assessor and his reasons therefor, stated in said official's indorsement to the Mayor recommending dismissal of petitioner's protest thereto and quoted in the record, are substantial and well taken, as, in fact, they have been reviewed by respondent Commissioner and found to be sustainable, as he did sustain them. We are loathe to substitute Our own judgment for that of the Commissioner of Civil Service who is primarily charged with the administration of the Civil Service Law and rules and regulations, absent, as in this case, convincing showing of palpable error or grave abuse of discretion. After all as We see it, petitioner rests his case mostly on the Organization Chart and the position description or CSC Form No. 122-D of respondent Maliwanag, prepared by petitioner himself, which do not carry the approval of the Mayor, as Department Head, contrary to requirement of Memorandum Circular No. 5, S. 1963 of the Commission of Civil Service touching on the basis for determining the hierarchical relationships of positions, and, therefore, are not necessarily controlling. Withal, the most fatal drawback of petitioner's cause is that he came to the courts out of time. As already stated, the appointment in controversy was made on November 23, 1973 and respondent Maliwanag assumed office on the strength thereof, albeit she claims she has not been paid her salary. On the other hand, the petition herein was filed only on March 13, 1975, clearly more than one year after the pretended right of petitioner to hold the office in question arose. This single circumstance has closed the door for any judicial remedy in his favor. Petitioner contends in regard to this point that Section 16 of Rule 66 invoked by private respondent refers to actions of quo warranto and since his petition is also for certiorari and mandamus, said rule is inapplicable. Such contention is not correct. As earlier noted in this decision, the allegations supporting petitioner's cause or causes of action boil down to no more than the removal of respondent Maliwanag from the position to which she has been appointed in order to be replaced by him, with a new appointment in his favor. Necessarily, the ouster of Maliwanag by quo warranto has to be based on a nullification o her appointment, which petitioner seeks, albeit unnecessarily, by certiorari. His ultimate remedy, therefore, is quo warranto. Besides, even if it could be also viewed as mandamus, it is already settled that his latter remedy prescribes also after one year. (Cornejo vs. Sec. of Justice, L-32818, June 28, 1974, 57 SCRA 663.) And it is of no avail to petitioner that during the intervening period of more than one year, he was seeking relief from the corresponding administrative outhorities. The resort to such administrative remedy does not abate the period for the judicial action. (Torres vs. Quintos, 88 Phil. 436; Galano vs. Roxas, G.R. L-31241, Sept. 12, 1975, 67 SCRA 8.) WHEREFORE, the petition is dismissed and the restraining order heretofore issued is hereby lifted effective immediately. No. costs. Separate Opinions AQUINO, J., dissenting: Petitioner Abraham C. Sison, as the incumbent chief deputy assessor, is the qualified and competent next-in-rank employee who should be promoted to the contested position of assistant city assessor of Olongapo City, as contemplated in section 23 of the Civil Service Law. He is qualified for that position because he is a provincial Assessor eligible and he holds a bachelor's degree in commerce. Those qualifications are required for the position of assistant city assessor. Respondent Eureka F. Maliwanag, who was appointed by the mayor to that position, is not qualified because she is not a provincial assessor eligible and she is not a holder of a bachelor's degree. Her appointment to the contested position is in violation of section 23. Hence, the Commissioner of Civil Service revoked that appointment in his decision of May 3, 1974. However, upon motion for reconsideration, the Commissioner approved that appointment in his decision of June 24, 1974. It is incontestable that Sison is senior to Mrs. Maliwanag. He was appointed senior deputy assessor of Olongapo City effective September 25, 1967. Then, he was promoted to the position of chief deputy assessor of that city on September 1, 1969. On that date, Mrs. Maliwanag was appointed to the position of senior deputy assessor, the position vacated by Sison (pp. 62-63, Rollo).

Thus, Sison (not Mrs. Maliwanag) was next in line for the position of assistant city assessor when that position became vacant on November 23, 1973. There is no reason why Mrs. Maliwanag should jump over Sison. The mayor should have apprised Sison as to why he was being bypassed and why Mrs. Maliwanag was being appointed to that position. That legal requirement was not observed. Although Sison's petition in this Court is for certiorari, mandamus and quo warranto, he has no cause of action for quo warranto because Mrs. Maliwanag holds an appointment to the contested position of assistant city assessor. She cannot be regarded as a usurper of that position. Sison's petition should be treated as one for certiorari and mandamus only. Those special civil actions are adequate for assailing the decisions of the Commissioner of Civil Service. The quo warranto aspect of Sisons's petition should be disregarded. Rule 65 of the Rules of Court does not fix any period for the filing of a petition for certiorari and mandamus. The one-year period within which the petition for quo warranto should be filled does not apply to Sison. His petition was delayed because, as he explained, he is a poor man who cannot afford to embark on an expensive and protracted litigation. I vote for the setting aside of the questioned decisions of the Commissioner of Civil Service. The mayor should be directed to appoint Sison to the contested position. Mrs. Maliwanag should be promoted to the position of chief of deputy assessor to be vacated by Sison.

G.R. No. L-44042 October 9, 1978 SOLEDAD M. EUGENIO, petitioner, vs. DELIA TORRIJOS JUAN C. TUVERA, Presidential Assistant of the Office of the President of the Philippines, JOSE R. MELO, Commissioner, FAUSTO VARELA, Deputy Commissioner, both or the Civil Service Commission; PEDRO AFABLE, Vice Chairman and Executive Director of the National Science Development Board, and FLORENCIO MEDINA, Ex-Chairman of the NSDB, c/o NSDB, respondents. FERNANDO, Acting C.J.: The inherent weakness in the appear of petitioner to respondent dent Juan C. Tuvera. 1 presidential Assistant, based on her c that she was Possessed of a preferential right to the position of Assistant Chief of the Scientific Library and Documentation Division of the National Science Development Board instead of respondent Delia Torrijos, is quite apparent. There is the insuperable obstacle posed by a number of authoritative decisions of this Court starting from Castro v. Del Rosario, 2 recognizing the discretion that could be exercised by the appointing authority as to who is entitled to promotion considering as the basic factor the needs of the public service, especially so where no question may plausibly be raised as to who is the employee next in rank. The latest case reiterating such a doctrine, Government Service Insurance System v. Government Service Insurance System Supervisors' Union , 3 was promulgated barely a month ago, to be exact, on the last day of August. This certiorari proceeding against the order of respondent Tuvera dismissing her appeal is doomed to failure. So we rule. The petition did not disclose when respondent Torrijos was appointed to the disputed position of Scientific Documentation Officer Ill of the National Science Development Board. 4 It merely alleged: "That on February 13, 1975, petitioner filed a letter-protest contesting the legality of the appointment of respondent, Delia Torrijos as Assistant Chief of the Scientific Library and Documentation Division addressed to the NSDB Chairman then, Mr. Florencio Medina, ..." 5 It was denied. 6 Then on March 24, 1975, she appealed to the Civil Service Commission. 7It did not prosper. 8 The decision of respondent Varela, Deputy Commissioner of the Civil Service commission, is worded thus: "The appointment of Miss Delia Torrijos as Scientific Library and Documentation Assistant Chief in the SLDD National Science Development Heard at P11,328 per annum, effective upon assumption of duty is protested by Mesdames Soledad Eugenio and Rogelia Cordero for alleged violation of the provision of Memorandum Circular No. 650 series of 1973 of the Office of the President. These papers show that in the Report of the NSDB Complaints Committee dated April 29, 1975, the body found the protestants not an employee next in rank, and recommended the dismissal of their protest; and that in a 2nd Indorsement dated April 30, 1975, that Office concurred in the finding of the Committed. It appears that the contested position is located in the Science Library and Documentation Division of the Education and Public Affairs Service of the NSDB proper; that the said Division as well as the position are newly created offices as a result of the implementation of the Integrated Reorganization Plan; that the appointee prior to the reorganization of the NSDB, was holding the position of Librarian Documentation in the Philippine Textile Research Institute; that protestant Eugenio was then holding the position of Education Supervisor in the Education and Training Division of the NSDB; while protestant Cordero was holding the position of Supervising Science Abstractor in the NIST and that the filing of the position is a part of the reorganization of the NSDB pursuant to the Integrated Reorganization Plan. Under the above circumstances, the protestee and protestants are not employees next in rank, therefore none of them may c preferential right to the position. Thus the filing of the position lies in the sound discretion of the appointing power. It is a well-settled rule in this jurisdiction that the appointing

power should be allowed broad discretion to select men of his choice, as he is responsible for the performance of his office, ... In view thereof, and considering that the protestants are not employees next in rank, the instant appeals are hereby dismiss for lack of merit- The bio-data of Miss Torrijos show that she holds a Bachelor of Science in Chemical Engineering degree and 24 units leading to Master of Public Administration. In addition she has several in service training courses including some taken abroad. She also claims to have attended meetings and/or conferences on matters related to the function of the position; and to have published several relevant articles. She has been working in that Office since 1958, and held such positions as Helper, Science Abstractor, Administrative Assistant and Documentalist Librarian. She was on several occasions designated to handle additional functions which are all relevant or akin to the functions of the contested position. She is a Chemical Engineer SCRA 1080), First Grade (Unassembled) and Library Assistant eligible. As it appears that the appointee is qualified and eligible, and in the absence of a showing that her selection has been the result of grave abuse of discretion or fraud, this Office finds the appointment in order. Wherefore, the same is hereby attested as permanent under Sec. 24(b) RA 2260, as amended." 9 The matter was then elevated, after 2 motion for reconsideration proved futile 10 to respondent Tuvera, who, on June 1, 1976, dismissed the appeal. 11 The challenged order expired why: "This is an appeal from the decision and resolution of that office dated June 26, 1975 and September 29, 1975, respectively, in Protest Case No. 46-69 entitled Soledad Eugenia et al., protestant-appellant, versus Delia E. Torrijos, protegee-appellee' dismissing the protest against the appointment of Delia Torrijos as Assistant Chief, Scientific Library and Documentation Division SLDD National Science Development Board INSB The protestants Soledad M. Eugenio and Ma. Rogelia L. Cordero are regular employees of the NSDB Scientific Library and Documentation Division, occupying the positions of Scientific Documentation Officer III and Scientific Documentation Officer II, respectively. The SLDD plantilla of personnel shows that the position next in rank to the protested one is that of Scientific Documentation Officer IV. For this reason, protestants, not being employees next in rank, have no legal personality to file a protest in accordance with the Civil Service Law, rules and regulations (Castro v del Rosario. 19 SCRA 196). Civil Service Memorandum Circular No. 13, series, of 1963, insofar as pertinent reads: 'Sec. 4. Who may file Protest Only Officers or employees next in rank who are competent and qualified to hold the position in question and possess the appropriate eligibility and who are not selected for promotion may file protest against an appointment or promotion.' On the other hand, the protestee Delia Torrijos is a holder of Bachelor of Science in Chemical Engineering degree and 24 units leading to Master of Public Administration. She is a Chemical Engineer (Rep. Act No. 1080), First Grade (Unassembled) and Library Assistant eligible. In addition, she has taken several in-service training courses and attended several meetings and/or conferences related to the function of the contested position. Thus, this Office is of the opinion and so holds that the instant appeal is devoid of merit. Whatever sympathy might be elicited for the protestants and who, for some reason or another, did not receive the promotion to which they felt they should be entitled, cannot obscure the discretion that the law leaves in the hands of the appointing official (Aguilar v. Nieva, 40 SCRA 113, Reyes v. Abeleda, 22 SCRA 825). Since the protegee is competent, qualified and with appropriate civil service eligibility, her appointment to the contested position is, therefore, in order. In view of the foregoing, this Office hereby dismisses the instant appeal and affirms in toto the decision and resolution appealed from." 12 This Court, in a resolution of July 16, 1976, required respondents to comment. Respondent public officials, through the then Acting Solicitor General, now Associate Justice of the Court of Appeals, Hugo E. Gutierrez, Jr., filed their comment on October 6, 1976. 13 It discussed the issues in terms of whether or not petitioner was the employee next-in-rank and whether or not respondent Torrijos was possessed of the necessary qualifications. As to the former, it was stated: "The position of Assistant Chief, Scientific Library and Documentation Division SLDD is a new position in a division which has been newly created pursuant to the reorganization of National Science Development Board under Presidential Decree No. 1. Consequently, no particular employee could claim that he or she is next-in-rank to any position in the NSDB Scientific Library and Documentation Division because as of the time of the appointment of respondent Torrijos as Assistant Chief, there was no established ranking of positions as yet. Such being the case, the contested position is open to all qualified NSDB personnel." 14 As to the latter issue, it was set forth: "Respondent Torrijos is a B.S. Chemical Engineering degree holder and an expert documentalist. She had extensive training and experience here and abroad. She took, under a scholarship grant from the Federal Republic of Germany, a Graduate Course for Documentation and a Post-Graduate Course for Subject Information Specialists as officially translated in the World Guide to Library Schools and training courses in documentation, Parish. Unesco [1972]. Her competence in library work is backed by her knowledge of library science acquired when she worked as a librarian, and the subjects she took under the Graduate Course for Documentation, which include, among others, Elementary Librarianship and Methodical Arrangement. Her administrative competence is backed by her having finished 24 graduate units out of the required 27 to complete the Masters in Public Administration degree at the University of the Philippines. ... Her experience and knowledge as such documentalist is of paramount need since the division entails scientific documentation work. The petitioner's alleged knowledge and experience as librarian could well be filled up by the expertise and - knowledge of the incumbent chief who is herself a librarian. " 15 It was the submission of the then Acting Solicitor General Gutierrez that no grave abuse of discretion was shown. 'Thus: "Corollary to the foregoing discussion, the appointment of respondent Torrijos by the Chairman of the National Science Development Board affirmed twice by the Civil Service Commission and by the Office of the President is not attended by grave abuse of discretion. Instead, her appointment i a sound exercise of administrative discretion, the power of appointment being largely an executive prerogative, it is submitted that the present petition does not lie. 16 From the above recital of recital facts, it is quite obvious that, as set forth at the outset, the petition. must fail. 1. No abuse of discretion on the part of public respondents, much less one of a grave character, was shown by petitioner. Not much reflection is needed to conclude that she had failed to make out a case of a demonstrably palpable capricious

or whimsical exercise of judgment. It appears indisputable that the choice was dictated by what appeared to be the exigent demand of efficient and satisfactory public service. ,That is not to be condemned but commended. There is this relevant excerpt from Reyes v. Abeleda: 17 "It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could best be attended to by officials about whose competency and ability there is no question. To that overmastering requirement, personal ambition must of necessity yield. Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the offices concerned, primarily. the department heads. They are in the most favorable position to determine which can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremtory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion." 18That policy of the law found acceptance in later decisions. 19 2. A procedural due process question was raised by petition with her allegation that she was riot "given the opportunity to substantiate her protest in a formal hearing," respondent Medina merely denying it "allegedly after consultation only with the Chief of the Administrative Services and Personnel Division." 20 Even on the assumption that the conduct of respondent Medina was vitiated by such failure, still the extensive consideration given her claim thereafter not only by the Chief of the Administrative Services and Personnel Division but likewise by the Commission of Civil Service and thereafter Presidential Assistant Tuvera, would cure such deficiency. That has been the constant holding of this Court. 21 WHEREFORE, the petition is dismissed for lack of merit. Separate Opinions AQUINO, J., concurring: I concur in the result or in the dismissal of the petition which as become a moot. As the petitioner had already reached the age of sixty-five years or the compulsory retirement age, she is no longer entitled to the relief sought by her. As to the merits of her petition, I am of the opinion that the Chairman of the National Science and Development Board NSDB committed a grave abuse of discretion in appointing Telia F. Torrijos on February 18, 1975 to the position of assistant chief of the scientific library and documentation division of the NSDB with compensation at P11,328 per annum (Range 60), effective upon assumption to duty. The facts of the case were not adequately recited in the decision of the NSDB complaints committee headed by Pedro G. Afable, the decision of the Deputy Commissioner of Civil Service, the decision of the Presidential Assistant and the comment of the Acting Solicitor General. Miss Torrijos, who was born in 1938 and who is a native of Bacoor, Cavite, is a Chemical engineer. Her civil service eligibilities are those of library assistant and first grade unassembled. She is a diplomatic in scientific documentation, having been trained in that line of work in Frankfurt Germany in 1964 when she was granted a scholarship by the Federal Republic of West Germany. At the time Miss Torrijos was appointed to the disputed position, she was a librarian documentalist, With an annual compensation of P6,615, in the Philippine Textile Reach institute, an agency under the NSDB. On the other hand, Soledad Mandac-Eugenio, the petitioner-protestee, a native of Laoag City (born either in 1910 or 1912), started her career in the government as a junior librarian in the University of the Philippines in 1936 or before Torrijos was born. Mrs. Eugenio finished the course in library science in the University of the Philippines in 1935. Her civil service eligibilities are those of junior librarian, supervising librarian, first grade, and supervisor unassembled. She held the following positions: college librarian of the University of the Philippines branch in lloilo City; assistant librarian in the chemistry library, Case Institute of Technology at Cleveland, Ohio; cataloger in the medical library of the University of California at Los Angeles, California, and assistant chief of the central registry of the International Atomic Energy Agency at Vienna, Austria. She joined the NSDB as a librarian her in 1963. Then, she was appointed assistant librarian in the Philippine Atomic Energy Commission. Later, she was appointed education supervisor in the education and training division of the NSDB with an annual compensation of P8,556.

The scientific library and documentation division was organized on June 24,1974. On that date, Mrs. Eugenio was appointed scientific documentation officer III in that division with an annual compensation of P9,288. One salient fact, which should be stressed because it was suppress in the decisions of the administrative officials already named, is that on June 22, 1974, or when the scientific library and documentation division was organized pursuant to the reorganization plan, Mrs. Eugenio was the fourth ranking employee in the division as shown below: 1. FLORENCIO SANGALANG, division chief, R66, Pl 5,264 per annum. 2. ANGELITA R. KALALO, assistant division chief, R-60, Pl 1,328 per annum. 3. IRENE D. AMORES, scientific documentation officer, IV, R-60, P11,328 per annum. 4. SOLEDAD M. EUGENIO, scientific documentation officer III , R-56, P9,288 per annum. It should likewise be stressed that on that date, Miss Torrijos was not an employee in that division. If these facts art borne in mind, it becomes apparent that Mrs. Eugenio is correct in contending that she was an insider and Miss Torrijos was an outsider. It also becomes obvious that the ad. administrative officials already named are wrong in contending that Mrs. Eugenio is not the employee next in rank to the position of assistant chief. Angelita Kalalo, the assistant division chief, and Sangalang, the division chief, retired on November 1 and December 31, 1974, respectively, Irene Amores, the scientific documentation officer IV, a position in the same range 60 as that of the assistant division chief, was promoted in February, 1975 to the position of division chief. Consequently, the position of assistant chief became vacant. Who should have been appointed to that vacancy? Mrs. Eugenia as the competent and qualified employee next in rank to Mrs, Amores, should have been promoted to that position. But, instead of promoting her to that position, the NSDB Chairman, upon the recommendation of Pedro G. Afable, the NSDB Vice-Chairman and Executive Director, appointed Miss Torrijos to that vacancy on February 18, 1975. As already stated, Miss Torrijos was an outsider. Her appointment was a flagrant violation of section 23 of the Civil Service Law. She was not the employee next in rank to the vacant position of assistant division chief Mrs. Eugenio and her co-protestant, Ma. Rogelia L. Cordero, in their appeal to the Office of the President dated November 6, 1975, alleged that the appointment of Miss Torrijos "disrupted and shattered" the cooperation and harmony which existed in the scientific library and documentation division because Mrs. Eugenio was "deliberately and willfully" left out and "maliciously" deprived of her promotion and that Miss Torrijos was appointed because she was a "close friend and kababayan " of one of the recommending authorities, Dominador O. Reyes, the chief of the education and public affairs service division. Lieutenant Colonel Balbino Diego, chief of investigation and legal panel of the Presidential Security Command, in a memorandum for the President of the Philippines, characterized the appointment of Miss Torrijos as a "brazen act of favoritism. Mrs. Eugenia a sexagenarian who was due to retire in two years, should have been promoted to assistant division chief S that she could enjoy higher retirement benefits. Miss Torrijos, who is relatively new in the government service, has a bright future before her and will have other opportunities for advancement and promotion.

[G.R. No. 152057. September 29, 2003] PHILIPPINE TELEGRAPH & TELEPHONE CORPORATION, petitioner, vs. COURT OF APPEALS, NATIONAL LABOR RELATIONS COMMISSION, PT&T PROGRESSIVE WORKERS UNION-NAFLU-KMU, CRISTINA RODIEL, JESUS PARACALE, ROMEO TEE, BENJAMIN LAKANDULA, AVELINO ACHA, IGNACIO DELA CERNA and GUILLLERMO DOMEGILLO, respondents. CALLEJO, SR., J.: This is a petition for review filed by petitioner Philippine Telegraph and Telephone Corporation (PT&T) of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 54346 promulgated on June 15, 2001 affirming the resolution of the National Labor Relations Commission (NLRC) promulgated on May 31, 1999 reversing the decision of the Labor Arbiter, and its Resolution dated February 6, 2002 denying the petitioners motion for reconsideration.

The petitioner is a domestic corporation engaged in the business of providing telegraph and communication services thru its branches all over the country. It employed various employees, among whom were the following: 1. Cristina Rodiel, initially as a Probationary Junior Counter- Clerk on July 1, 1995 at the Cabanatuan Branch, regularized on November 28, 1995; 2. Jesus Paracale as a Probationary Junior CW Operator in Padada, Davao del Sur on November 16, 1988, regularized on April 15, 1990, transferred to Malita, Davao Branch on November 16, 1990, to Makar, South Cotabato Branch on September 1, 1994 and to Kiamba, South Cotabato Branch on April 1, 1995; 3. Romeo Tee as Counter-Clerk at the Zamboanga Branch on January 16, 1982, as a TTY Operator on November 16, 1986, promoted as TTY Operator General on November 1, 1989 and designated as TRITY Operator Regions on July 1, 1997; 4. Benjamin Lakandula as a Counter-Clerk at the Iligan City Branch on January 16, 1982; 5. Avelino Acha as Probationary Junior Counter at the Naga City Branch, regularized on June 10, 1983, transferred to Legaspi City Branch on November 16, 1989; 6. Ignacio Dela Cerna as a Probationary Junior CW-Operator in at the Pagadian City Branch regularized on March 15, 1986 and designated as TR/TTY Operator Regions on July 1, 1993 at the Pagadian City Branch, and 7. Guillermo Demigillo as Clerk.[2] Sometime in 1997, after conducting a series of studies regarding the profitability of its retail operations, its existing branches and the number of employees, the petitioner came up with a Relocation and Restructuring Program designed to (a) sustain its (PT&Ts) retail operations; (b) decongest surplus workforce in some branches, to promote efficiency and productivity; (c) lower expenses incidental to hiring and training new personnel; and (d) avoid retrenchment of employees occupying redundant positions.[3] On August 11, 1997, private respondents Cristina Rodiel, Jesus Paracale, Romeo Tee, Benjamin Lakandula, Avelino Acha, Ignacio Dela Cerna and Guillermo Demigillo received separate letters from the petitioner, giving them the option to choose the branch to which they could be transferred. Thereafter through HRAG Bulletin No. 97-06-16, the private respondents and other petitioners employees were directed to relocate to their new PT&T Branches. The affected employees were directed to report to their respective relocation assignments in a Letter dated September 16, 1997. The petitioner offered benefits/allowances to those employees who would agree to be transferred under its new program, thus: EXISTING RELOCATION ALLOWANCE SPECIAL RELOCATION ALLOWANCE FLAT RELOCATION ALLOWANCE P17,500.00 MOVING EXPENSES (FREIGHT) P15,000

1. Temporary relocation per diem 2.1 Married employee bringing along his of P260.00/day family 2. Permanent relocation a flat 2.2 Married employee not bringing along monthly allowance of P5,100.00 his family 2.3 Single employee bringing along his qualified dependent/s

P10,000.00

N/A

P10,000.00

P15,000

2.4 Single employee not bringing along his dependent/s P7,000.00

N/A[4]

Moreover, the employees who would agree to the transfers would be considered promoted, thus: FROM NAME POSITION/JG* Jr. Counter-JG2 WORK LOCATION Legaspi (Br) TO POSITION Courier JG3 WORK LOCATION Romblon/ Odiongan (SL) Baguio (NWL) Kidapawan (CM) Lebak (CM)

1. ACHA, AVELINO

2. RODIEL, CRISTINA 3. DELA CERNA, IGNACIO

Jr. Counter Clerk-JG2 Jr. CW Operator-JG2

Cabanatuan (CL) Cotabato City (CM) Midsayap North

Clerk-JG4 Clerk-JG4 Courier-JG3

4. DEMIGILLO GUILLERMO Jr. CW Operator-JG2

5. LAKANDULA, BENJAMIN Counter-JG3 6. PARACALE, JESUS 7. TEE, ROMEO Jr. CW Operator-JG2 TTY Operator-Gen. JG4

Iligan (NM)

Clerk JG4

Butuan (EM) Butuan (EM) Jolo (WM)[5]

Makar, Gen. Santos (SM) Clerk JG4 Zamboanga City (WM) Clerk JG4

The private respondents rejected the petitioners offer. On October 2, 1997, the petitioner sent letters to the private respondents requiring them to explain in writing why no disciplinary action should be taken against them for their refusal to be transferred/relocated.[6] In their respective replies to the petitioners letters, the private respondents explained that: The transfers imposed by the management would cause enormous difficulties on the individual complainants. For one, their new assignment involve distant places which would require their separation from their respective families. For instance, in the case of Avelino Acha who would be coming from Bicol Region, he would have to take a boat in going to his new assignment in Odiongan, Romblon. The voyage would take a considerable period of time and it would be imperative for him to relocate to Romblon to be able to attend to his new assignment. The same holds true with the other complainants. Romeo Tee for instance, will have to take an overnight boat trip from his previous assignment in Zamboanga to his new assignment in Jolo, Sulu. He would have to part with his family and resettle to Jolo in connection with his transfer. Cristina Rodiel on the other hand, would be transferred to Baguio City which is quite distant from her previous workbase and residence at Cabanatuan. Jesus Paracale finds himself in the same difficult situation as he would be transferred from General Santos City at the Southern tip of Mindanao to Butuan City, almost a days travel by bus and located at the northernmost tip of the island. Benjamin Lakandula and Guillermo Demigillo, are also in the same situation as their new assignments are quite distant from their previous places of work. [7] Dissatisfied with this explanation, the petitioner considered the private respondents refusal as insubordination and willful disobedience to a lawful order; hence, the private respondents were dismissed from work. [8] They forthwith filed their respective complaints against the petitioner before the appropriate sub-regional branches of the NLRC. [9] Subsequently, the private respondents bargaining agent, PT&T Workers Union-NAFLU-KMU, filed a complaint against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the private respondents, including Ignacio Dela Cerna, before the arbitration branch of the NLRC.[10] In their position paper, the complainants (herein private respondents) declared that their refusal to transfer could not possibly give rise to a valid dismissal on the ground of willful disobedience, as their transfer was prejudicial and inconvenient; thus unreasonable. The complainants further asserted that since they were active union members, the petitioner was clearly guilty of unfair labor practice [11]especially considering their new work stations: 1. Jesus Paracale, from General Santos Branch to Butuan City Branch; 2. Romeo Tee, from Zamboanga Branch to Jolo Branch; 3. Benjamin Lakandula, from Iligan City to Butuan City; 4. Avelino Acha, from Legaspi City Branch to Odiongan Branch; 5. Ignacio Dela Cerna, from Pagadian City Branch to Butuan Branch; and 6. Guillermo Demigillo, from Midsayap to Lebak Cotabato Branch. [12] For its part, the petitioner (respondent therein) alleged that the private respondents transfers were made in the lawful exercise of its management prerogative and were done in good faith. The transfers were aimed at decongesting surplus employees and detailing them to a more demanding branch. In their reply to the petitioners position paper, the private respondents opined that since their respective transfers resulted in their promotion, they had the right to refuse or decline the positions being offered to them. Resultantly, the refusal to accept the transfer could not have amounted to insubordination or willful disobedience to the lawful orders of the employer. After the parties filed their respective pleadings, the Honorable Labor Arbiter Celenito N. Daing rendered a Decision on September 25, 1998 dismissing the complaint for lack of merit. [13] The labor arbiter ratiocinated that an employer, in the exercise of his management prerogative, may cause the transfer of his employees provided that the same is not attended by bad faith nor would result in the demotion of the transferred employees. The labor arbiter ruled in favor of the petitioner, finding that the aforesaid transfers indeed resulted in the private respondents promotion, and that the complaint for unfair labor practice was not fully substantiated and supported by evidence. Aggrieved, the private respondents appealed that aforesaid decision to the NLRC.

On May 31, 1999, the NLRC issued a Resolution which reversed and set aside the decision of the labor arbiter. The NLRC ruled that the petitioner illegally dismissed the private respondents, thus: WHEREFORE, premises considered, the Appeal is hereby GRANTED. Accordingly, the Decision appealed from is REVERSED and SET ASIDE and a new one entered declaring respondent-appellee guilty of illegal dismissal and ordering Philippine Telegraph and Telephone Corporation to reinstate individual complainants-appellants to their former positions without loss of seniority rights and other privileges and to pay them full backwages from the date of their dismissal up to the date of their actual reinstatement, computed as follows [14] The NLRC interpreted the said transfers of the respondents as a promotion; that the movement was not merely lateral but of scalar ascent, considering the movement of the job grades, and the corresponding increase in salaries. As such, the respondents had the right to accept or refuse the said promotions. The NLRC concluded that in the exercise of their right to refuse the promotion given them, they could not be dismissed. Without filing a motion for reconsideration, the petitioner filed a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure before the Court of Appeals, assailing the May 31, 1999 Resolution of the NLRC. The petitioner raised the following errors: 4.1 PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT RULED AGAINST PRIVATE RESPONDENTS DISMISSAL ON THE GROUND OF INSUBORDINATION FOR REFUSING TO HEED TO THE TRANSFER ORDER OR THE PETITIONER. 4.2 PUBLIC RESPONDENT COMMITTEE GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT SUSTAINED PRIVATE RESPONDENTS CONTENTION THAT THEY WERE IN FAC BEING PROMOTED AND NOT TRANSFERRED, THUS RENDERING THE LATTERS DISOBEDIENCE JUSTIFIED. PUBLIC RESPONDENTS (SIC) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT RULED THAT PRIVATE RESPONDENTS ARE ENTITLED TO REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND OTHER PRIVILEGES, AS WELL AS PAYMENT OF FULL BACKWAGES FROM DATE OF DISMISSAL UP TO DATE OF ACTUAL REINSTATEMENT.[15] On June 15, 2001, the Court of Appeals rendered a Decision affirming the resolution of the NLRC, the dispositive portion of which reads: WHEREFORE, finding no grave abuse of discretion on the part of the respondent commission, the petition is hereby DISMISSED for lack of merit. The assailed May 31, 1999 Resolution of the National Labor Relations Commission, Third Division is hereby AFFIRMED IN TOTO.[16] The petitioner filed a motion for reconsideration. On February 6, 2002, the CA issued a Resolution denying the motion.[17] Dissatisfied, the petitioner filed its petition for review assailing the decision and resolution of the CA, insisting that: I PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE ORDERS DATED JUNE 15, 2001 AND FEBRUAR 6, 2002 AFFIRMING THE ORDER DATED MAY 31, 1999 OF THE THIRD DIVISION OF THE NATIONAL LABOR RELATIONS COMMISSION, CONSIDERING THAT: a. THE ORDER DATED MAY 31, 1999 OF THE NATIONAL LABOR RELATIONS COMMISSION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; b. THE PETITIONER DID NOT ADMIT IN ITS POSITION PAPER FILED BEFORE THE LABOR ARBITER THAT THE PRIVATE RESPONDENTS WERE BEING PROMOTED. ON THE CONTRARY, IT HAS ALWAYS BEEN THE CONTENTION OF THE PETITIONER THAT THE PRIVATE RESPONDENTS WERE SIMPLY ORDERED TRANSFERRED TO OTHER WORK STATIONS WITHOUT DEMOTION IN RANK AND DIMINUTION IN SALARY; c. THE PRIVATE RESPONDENTS WERE LEGALLY TERMINATED FOR JUST AND AUTHORIZED CAUSE FOR WILFULL DISOBEDIENCE TO THE LAWFUL ORDERS OF THE PETITIONER (TRANSFER ORDER PURSUANT TO ITS RELOCATION AND RESTRUCTURING PROGRAM), AFTER AFFORDING THEM DUE PROCESS OF LAW AND THUS NOT ENTITLED TO REINSTATEMENT; AND

d. PETITIONER ACTED IN GOOD FAITH IN IMPLEMENTING ITS RELOCATION AND RESTRUCTUTING PROGRAM WHICH RESULTED IN THE TERMINATION OF THE PRIVATE RESPONDENTS. AND AS SUCH, THE PRIVATE RESPONDENTS ARE NOT ENTITLED TO THE PAYMENT OF ANY BACKWAGES. [18] In their Comment, the private respondents argue that the petition should be dismissed for the following reasons: (a) that a petition for review under Ruler 45 is limited to questions of law; (b) the private respondents were promoted and not only transferred as established by the evidence on record; and (b) private respondents could not be penalized with dismissal for declining their promotions. The petition is denied due course. As has been enunciated in numerous cases, the issues that can be delved into a petition for review under Rule 45 are limited to questions of law. Thus, the Court is not tasked to calibrate and assess the probative weight of evidence adduced by the parties during trial all over again. [19] The test of whether the question is one of law or of fact is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise, it is a question of fact. [20] In the case at bar, the petitioner would want this Court to ascertain whether or not the findings of NLRC, as affirmed by the CA, are substantiated by the evidence on record; hence, requiring a review involving questions of facts. For this reason alone, this case should be dismissed. Even if the Court were to review the instant case on its merits, the dismissal of the petition is inevitable. Section 3, Rule V of the NLRC provides that: Section 3. Submission of Position Papers/Memorandum Should the parties fail to agree upon an amicable settlement, either in whole or in part, during the conferences, the Labor Arbiter shall issue an order stating therein the matters taken up and agree upon during the conferences and directing the parties to simultaneously file their respective verified position papers. These verified position papers shall cover only those claims and causes of action raised in the complaint excluding those that may have been amicably settled, and shall be accompanied by all supporting documents including the affidavits of their respective witnesses which shall take the place of the latters direct testimony. The parties shall thereafter not be allowed to allege facts, or present evidence to prove facts, not referred to and any cause or causes of action not included in the complaint or position papers. Without prejudice to the provisions of Section 2 of this Rule, the Labor Arbiter shall direct both parties to submit simultaneously their position papers with supporting documents and affidavits within an inextendible period of ten (10) days from notice of termination of the mandatory conciliation. mediation conference. In its position with the labor arbiter, the petitioner adverted that when the private respondents were transferred, they were also promoted, thus: Clearly, the transfer of the complainants is not unreasonable nor does it involve demotion in rank. They are being moved to branches where the complainants will function with maximum benefit to the company and they were in fact promoted not demoted from a lower job-grade to a higher job-grade and receive even higher salaries than before. Thus, transfer of the complainants would not also result in diminution in pay benefit and privilege since the salaries of the complainant would be receiving a bigger salary if not the same salary plus additional special relocation package. Although the increase in the pay is not significant this however would be translated into an increase rather than decrease in their salary because the complainants who were transferred from the city to the province would greatly benefit because it is of judicial notice that the cost of living in the province is much lower than in the city. This would mean a higher purchasing power of the same salary previously being received by the complainants. [21] Indeed, the increase in the respondents responsibility can be ascertained from the scalar ascent of their job grades. With or without a corresponding increase in salary, the respective transfer of the private respondents were in fact promotions, following the ruling enunciated in Homeowners Savings and Loan Association, Inc. v. NLRC:[22] [P]romotion, as we defined in Millares v, Subido, 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. Apparently, the indispensable element for there to be a promotion is that there must be an advancement from one position to another or an upward vertical movement of the employees rank or position. Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is bestowed upon an employee. This can be likened to the upgrading of salaries of government employees without conferring upon the, the concomitant elevation to the higher positions.[23] The admissions of the petitioner are conclusive on it. An employee cannot be promoted, even if merely as a result of a transfer, without his consent. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to lure the employee away from his permanent position cannot be done without the employees consent. [24] There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse. [25] Hence, the exercise by the private respondents of their right cannot

be considered in law as insubordination, or willful disobedience of a lawful order of the employer. As such, there was no valid cause for the private respondents dismissal. As the questioned dismissal is not based on any of the just or valid grounds under Article 282 of the Labor Code, the NLRC correctly ordered the private respondents reinstatement without loss of seniority rights and the payment of backwages from the time of their dismissal up to their actual reinstatement. IN LIGHT OF THE ALL THE FOREGOING , the Decision of the Court of Appeals dated June 15, 2001 is hereby AFFIRMED. SO ORDERED.

[G.R. No. 89618 : December 20, 1990.] 192 SCRA 496 HON. RAUL S. MANGLAPUS, in his capacity as Secretary of Foreign Affairs , Petitioner, vs. HON. ANDRES E. MATIAS, Judge of the Regional Trial Court of Manila (Branch 45) and GAVINO P. ABAYA , Respondents.

NARVASA, J.:

In early 1988, Gavino P. Abaya, Jr., who up to that time had been serving in the Philippine Mission to the United Nations in New York from September 1, 1971 continuously except for a brief period in 1983-1984 when he was recalled to the Home Office received an Assignment Order (No. 10-88 dated January 29, 1988) transferring him to the Philippine Embassy in Beijing as Minister-Counsellor and Consul General. 1 On March 18, 1988 he requested deferment of his transfer to his new assignment in Beijing, to "give him ample time to wind up official and pending family matters." 2 On April 15, 1988 the Office of Personnel and Management Services recommended to the Secretary of the Department of Foreign Affairs 1) the appointment, in place of Abaya, of Ariel Abadilla to the Embassy at Beijing, Abaya's suitability having been questioned by Ambassador Rodolfo Severino, who had expressed preference for said Ariel Abadilla, then assigned at Seattle; and 2) Abaya's recall to the Home Office in line with the Department's program of recalling "overstaying" officers and employees assigned abroad. 3 It appears that several days later, Chairman Ramon Diaz of the Presidential Commission on Good Government (PCGG) requested that Abaya be allowed to testify before a grand jury then investigating the Marcoses' ill-gotten wealth in the United States. Acting thereon, and apparently also on the recommendation of the Office of Personnel and Management Services (OPMS), Foreign Affairs Secretary Manglapus sent a cablegram dated April 26, 1988 to Ambassador Emmanuel Pelaez at the Philippine Mission to the United Nations 1) advising of the waiver of Abaya's diplomatic immunity "to allow him to appear and testify before (said) U.S. grand jury;" 2) revoking Assignment Order No. 10-88 assigning Abaya to Beijing and directing that he remain in New York until further instructions; and 3) directing that the Home Office be apprised "of developments, particularly (of the) termination of Mr. Abaya's testimony." 4 On September 19, 1988, the OPMS addressed a memorandum to Secretary Manglapus reiterating its recommendation to recall Abaya from New York to the home office. It stated that although Abaya's stay in New York had been extended on request of the PCGG, there was "no indication that he could appear in court or grand jury in the U.S. as it would entail a waiver of his diplomatic immunity." 5 Secretary Manglapus then issued on December 20, 1988, Assignment Order No. 186-88 recalling Abaya, effective immediately, "to the Home Office from the Philippine Mission to the United Nations, New York." A copy of this recall order was received by Abaya on December 28, 1988. 6 More than a month later, Abaya sent a telex message to the home office dated January 30, 1989, requesting reconsideration of the recall order and a deferment of its effectivity, for the reason that in the case of eight (8) members of the UN Mission, their recalls were allegedly made effective "some 16 to 23 months from receipt of recall orders," this being "in consonance with Foreign Service Circular No. 11-89" dated January 11, 1989 providing that "recall orders are served one year in advance to cushion those concerned against harsh transition." 7 On February 13, 1989, Ambassador Teehankee (Permanent Representative to the UN) wired the home office his telex message being identified as ZMS-41-89 asking for advice on the action taken on Abaya's motion for reconsideration, stating that "since notice of his recall order was received by him on 28 Dec. 1988 his usual 60-day period to wind up

business expires on 28 Feb. 1989," In response, Secretary Manglapus sent the following telex message under date of March 13, 1989, to wit: ". . . URTEL ZMS-41-89 FOR GAVINO ABAYA: IN VIEW REPRESENTATIONS MADE BY ATTY. ANTONIO ABAYA, YOU ARE DIRECTED REPORT MANILA 1 JUNE 1989 WITHOUT FAIL. OTHERWISE, DFA MIGHT BE COMPELLED TO DECLARE YOU AWOL AND DROP YOU FROM ITS ROSTER. PLEASE NOTE THAT THERE IS NO SPECIAL TREATMENT GIVEN TO EIGHT STAFF MEMBERS OF MISUNPHIL WHO ARE BEING RECALLED UNDER NORMAL CIRCUMSTANCES. YOUR SERVICE RECORDS SHOW THAT YOU STAYED IN NEW YORK FOR 13 YEARS INITIALLY IN VIOLATION OF MAXIMUM STAY ONLY FOR 3 YEARS. AFTER SERVING FOR BARELY A YEAR IN MANILA, AGAIN IN VIOLATION OF RULES, YOU WERE ASSIGNED TO NEW YORK, AGAIN IN VIOLATION OF RULES. IT IS CLEAR THAT REPEATED VIOLATIONS HAVE BEEN COMMITTED WHICH IS NOT TRUE WITH YOUR CO-WORKERS THAT POST. FURTHER, PLEASE NOTE THAT MEMO CIRCULAR CITED IS SUBJECT TO D.O. 42-88 WHICH EMPHASIZES SECFORAF'S PREROGATIVE TO REDEPLOY DFA STAFF IN INTEREST OF SERVICE AND IN EXERCISE OF HIS POWER OF SUPERVISION AND CONTROL. END." Abaya sent a telex communication to Secretary Manglapus dated March 20, 1939, duly noting the latter's instructions to report at Manila on June 1, 1989, and stating that: (1) the period of his initial tour of duty at the UN Mission at New York was not 13 years but 11 years and some 7 months, and he served in the home office for 14 months before being reassigned to New York in June, 1984; (2) that these assignments involved no violation of rules but had been "lawfully made by the then Minister of Foreign Affairs in the exercise of his legal prerogative to redeploy DFA staff in (the) interest of (the) service a prerogative of any secretary of foreign affairs, past or incumbent . . .;" (3) that said prerogative was not being disputed, the issue being his right to "one-year advance notice of recall orders," a right unconditionally conferred by FS Circular 11-89; and (4) that his request for one-year notice should thus be granted. 8 On April 20, 1989, Abaya having apparently made no move to return to Manila, Secretary Manglapus directed that if Abaya was unable to return to the home office, "he should file leave application with salaries computed at home office rate and payable in pesos." 9 On May 2, 1989, Abaya went to court. He filed a petition for Certiorari, prohibition and mandamus (with application for preliminary injunction) against Secretary Manglapus with the Regional Trial Court of Manila. 10 The case was docketed as Sp. Proc. No. 89-48665 11 and assigned to Branch 45, presided over by Hon. Andres E. Matias. 12 On May 18, 1989, Secretary Manglapus moved to dismiss the action on the ground that (1) Abaya's "recall to the Home Office is an exercise of respondent Secretary's prerogative and discretion which may not be interfered with by the Court," and (2) petitioner "has not exhausted his administrative remedies." 13 After both incidents (the matter of the preliminary injunction and the motion to dismiss) had been heard and extensively argued, the Trial Court denied the motion to dismiss by Order dated June 5, 1989 and granted the application for preliminary injunction. 14 The Court ruled that Manglapus had no authority to disregard Foreign Service Circular No. 1189; he had not shown "with convincing evidence that the 'exigencies of the service' require the immediate and peremptory recall" of Abaya; Abaya's case was substantially identical to those of eight (8) other members of the Philippine Mission who had been accorded advance notice of their recall of more than a year; and since only a question of law was involved, the relevant facts not being in dispute, the doctrine of exhaustion of remedies had no application.:cralaw A motion for reconsideration was filed on July 1, 1989 in Secretary Manglapus' behalf; this was denied by Order dated July 25, 1989. On August 17, 1989, Abaya still having made no move to return to the home office, Secretary Manglapus wired the following instructions to the UN Mission at New York: "CONSISTENT WITH DEPARTMENT REGULATIONS GAVINO ABAYA WILL BE PAID HIS SALARY AT HOME OFFICE RATES STARTING 01 JUNE 1989 . . . ISSUE OF RECALL NOW PENDING WITH SUPREME COURT . . ." 15 On August 29, 1989, the Secretary of Foreign Affairs, through the Solicitor General, instituted the instant action of Certiorari and prohibition praying for invalidation of the Trial Court's Orders of June 5, 1989 and July 25, 1989 because supposedly "issued in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction." He submits that 1) respondent Court had no jurisdiction over the nature of the action because: a) Abaya's "recall to the Home Office was an exercise of petitioner's prerogative and discretion which may not be interfered with by the court;" b) "Circular 11-89, being a mere administrative issuance of petitioner, does not confer a legal right on Abaya upon which any action in a court of law may be predicated;" 2) Abaya has no cause of action, not having exhausted his administrative remedies; and 3) Abaya "has not shown that he will undergo 'harsh transition' if recalled to the Home Office." Abaya's entire case turns about Circular 11-89. It is the foundation for his claim that he is entitled to a one-year period to wind up his affairs prior to transferring to a new assignment, and that he was being discriminated against, considering that eight (8) other members of the staff of the UN Mission had been accorded more than one year advance notice of their recall or assignment to new posts.

It is noteworthy that when Circular 11-89 was promulgated by respondent Manglapus on January 11, 1989, all the relevant events generating the controversy had already taken place, to wit: 1. Abaya was ordered transferred to the Beijing Embassy; this, on January 29, 1988. 2. A month and a half later, or on March 18, 1988 he requested deferment of the effectivity of his new assignment for six (6) months to "give him ample time to wind up official and pending family matters." 3. The OPMS proposed (a) Abaya's recall to the Home Office and (b) revocation of his assignment to Beijing because Ambassador Rodolfo Severina, under whom he would have served, had questioned his (Abaya's) suitability and expressed preference that in his stead, Ariel Abadilla of Seattle be assigned.- nad 4. After Abaya was directed to stay on at New York in the expectation of his testifying before a grand jury (pursuant to a PCGG request) the OPMS again proposed his recall to the Home Office. 5. As recommended, Abaya's recall to the Home Office was again directed, advice thereof having been received by him on December 28, 1988. Certain conclusions are necessarily generated by these facts. 1. During the period from January 29, 1988 (date of the order for his transfer to Beijing) to December 28, 1988 (date of receipt by him of the reiterated order for his recall to Manila), Abaya could not but have known that whatever be his new assignment Manila or Beijing he could no longer stay on at the New York Mission; this, notwithstanding the interim order that he stay at New York to give evidence before a grand jury, the stay thus directed being obviously a temporary one, at best. 2. As of December 28, 1988 when he received notice of the iterated order for his recall to Manila eleven (11) months had already elapsed since his transfer to Beijing was ordered, and nine (9) months, since he requested for deferment of his transfer for six (6) months. 3. As of December 28, 1988, he had no "right" to one-year advance notice of any recall order, since that was granted only on January 11, 1989, when Manglapus issued Circular 11-89. 4. Considering that he knew all along that he could no longer count on staying indefinitely in New York and that there was no alternative to his accepting his recall or reassignment; considering that he had already had more than the six-month extension requested by him on March 18, 1988 to "give him ample time to wind up official and pending family matters;" and considering that he makes no pretense that he has not yet been able, within that time, to "wind up official and pending family matters," there appears to be no reason for him to refuse to comply with the recall order received by him on December 28, 1988. Indeed, the only reason advanced by him for seeking a one-year extension of stay in his New York post was simply and exclusively because other foreign service officers or employees had been given more than a year to wind up their affairs, and the grant of such an extension to him would be in consonance with a subsequently promulgated circular (No. 11-89). Clearly, the request for extension was unreasonable under the uncontroverted facts of the case. 5. Given the foregoing admitted facts, too, no "harsh transition" could possibly attend Abaya's recall from New York to the Home Office in Manila; hence, there is no reason to apply Circular No. 11-89, which notes "that recall orders are served one year in advance to cushion those concerned against harsh transition." Given these same facts, the circumstance that other officers and employees of the Foreign Service might have received more than one year's advance notice of their recall orders, is utterly inconsequential. 6. The logical inference from all these undeniable considerations is that Abaya simply wished to take advantage of Circular 11-89 for purely personal motives and considerations, without regard to the interests of the service, or to set at naught the orders of his superior because he did not agree with them, or just to spite the latter. This circumstance also exposes the paucity of his claim to equal treatment in relation to the eight whose case he would cite as precedent. 7. In any event, as of date hereof, considerably more than a year has already elapsed since December 28, 1988 when he received notice of the last order for his recall to the Home Office. His insistence on one-year advance notice of recall, counted from such a date, has clearly become moot and academic. This would appear reason enough to dismiss Abaya's petition at this time.:- nad Be this as it may, it may not be amiss also to look further into the merits of Abaya's claim. There is no question, indeed it is explicitly admitted by Abaya himself, that the Secretary of Foreign Affairs has the authority under the law to recall and reassign officers as the interests of the service may in his discretion require. Section 6, 16 Republic Act No. 708 as amended, provides as follows: ". . . Assignments and Transfers. A Foreign Affairs Officer may be assigned by the Secretary to serve in the department or in a diplomatic or consular post abroad: Provided, however, That the minimum period which he may serve in any foreign post shall be one year and the maximum period four years, except in case of emergency or extraordinary circumstances, in which event he may be transferred from one foreign post to another or to the Department by order of the Secretary without regard to his length of service in his former post." Where an officer has served in a foreign post for at least four years, as in Abaya's case, it would appear that the Secretary's power of assignment and transfer rests entirely in his discretion, guided chiefly by his perception of what is necessary for the good of the service. There is no need in that event that some "emergency or extraordinary circumstances" exist, this being required only where the officer has served less than four years in a foreign post.

Abaya's reassignment to Beijing in January, 1988, and his recall to the Home Office reiterated in December, 1988, were thus well within the authority granted to the Foreign Affairs Secretary by law. Those acts were based on reasoned conclusions of the OPMS and the head of the Beijing Embassy including the fact that, as affirmatively appears on the record, Abaya is really an "overstaying" officer in the UN Mission, having served in that post for much more than the maximum term of four (4) years prescribed by Section 6 of the Foreign Service Law, as amended and hence, could not in truth be said to be in any sense capricious or whimsical, no matter how debatable Abaya might think the validity of those conclusions is. The question that now arises is whether or not Circular No 11-89 subsequently issued by the Secretary himself, 17 invalidated his prior acts, just described. Said circular reads as follows: "The Department regrets its inability to extend the tours of duty of foreign service personnel for reasons of health, schooling of children, or any reason other than the interest of the service. The Department is no longer in a position to finance the school and medical fees of foreign service personnel or their families. Those ailing are suggested to apply for sick leave, which they may spend abroad or in Manila. Inasmuch as they are considered on home assignment the day after their scheduled date of recall, their salaries shall be computed a home office rates and payable in pesos. Those with school children should be able to provide them with housing, school and personal expenses until the academic year ends, or they could send them back to Manila in time for the opening of the school year in June. It must be noted that recall orders are served one year in advance to cushion those concerned against harsh transition. Extension of tours are a drain in the country's foreign reserve; is unfair to foreign service personnel without family; and destroys the raison d'etre of the Department's rotation program. Please be guided accordingly." As will at once be noted, the Circular deals mainly with the matter of extensions. What the Circular does essentially, is 1) to advise of the Department's inability to extend tours duty "for reasons . . . other than the interest of the service," on account of financial contraints, extensions being "a drain in the country's foreign reserve, . . . unfair to . . . personnel without family, and (destructive of) the raison de'etre of the Department's rotation program;" and 2) to note when extensions are thus refused "that recall orders," consistenty with what appears to be theretofore prevailing practice, "are served one year in advance to cushion those concerned against harsh transition." The Circular must of course be construed in relation to the power of the Secretary of Foreign Affairs to promulgate administrative rules and regulations, and his authority to transfer and reassign personnel for the good of the service in accordance with Section 6 of the Foreign Service Act, as amended, above cited. In this context, and as framed, the Circular should be considered as primarily laying down a policy against extensions of foreign assignments, and, corollarily extensions sought by officers receiving orders of recall or reassignment being generally proscribed drawing attention to the normal practice of giving one-year notice in advance of such orders. The Circular cannot be read as prohibiting recalls or reassignments without advance one-year notice under any and all circumstances and conditions, and even when no "harsh transition" is entailed by a recall or reassignment, or as absolutely precluding amendment or modification thereof by the Secretary himself. No grave abuse of discretion, or lack or excess of authority, may rightfully be ascribed to the respondent Secretary. Indeed, it is the Regional Trial Court which the facts disclose to have gravely abused its discretion in having so utterly misread the facts and the applicable law and overruling the Secretary's plainly valid and legally authorized actuations. The writ prayed for will therefore issue, to nullify the challenged orders of said Trial Court and to avert unnecessary proceedings, all the facts necessary to adjudicate the issues raised by the parties having been laid by them before this Court, and those issues having in fact been dealt with in this opinion to direct that the action a quo be aborted. WHEREFORE, the Orders of respondent Court in Sp. Proc. No. 89-48665 dated June 5, 1989 and July 25, 1989 are hereby NULLIFIED AND SET ASIDE, and said Court is ORDERED TO DISMISS Sp. Proc. No. 89-48665. Costs against private respondent.: nad SO ORDERED.

G.R. No. 116183 October 6, 1995 SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and BOARD OF TRUSTEES of PSCA, petitioners,

vs. HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents. HERMOSISIMA, JR., J.: Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on a perceived, albeit mistaken, right to reinstatement. Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively. Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services". Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS Secretary. The case for reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria. Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under Republic Act No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the named private respondents who were the petitioners in the court below. The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"? Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees themselves and the President of the college. In line with this authority, the PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31, 1992. This appointment went along the line enunciated by the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary appointments were good and renewable only up to 1992. On March 24, 1992, private respondent Rosario V. Cerillo was relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services". On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8, 1992.

Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. Had private respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24, 1992, her temporary appointment as such was supposed to have lasted until December 31, 1992. On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA administration, the herein private respondents filed before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions. In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus will not lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be unavailing to private respondents because of their failure to exhaust administrative remedies. We find the petition to be impressed with merit. I The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts and the law. Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only 6. II Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be impermissible. In the first place, Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest this dismissal possibly because the position of Board Secretary II is primarily confidential and the Board of Trustees, when finding her, the incumbent to the position, to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without any ripple and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts called for by the designation. The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other, came about in this manner: The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a pertinent portion of the letter: xxx xxx xxx Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments subject to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service policies. You may, therefore, advise all your temporary personnel to take civil service examinations in order to be eligible for appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments. This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot be terminated from the service. The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners 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 importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. 9 It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government. 11 We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus. Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. 13 It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees. Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this pontification by stating that: The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his discretion absent any showing of grave abuse of discretion. III The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA). We agree with respondent Judge's disquisition on this point: To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone. IV

Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision of respondent Judge has become moot and academic. At any rate, the Court holds that the said award could not have been imposed because, while it was directly ordered in the dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned decision. Clear on this point is Our decision in Policarpio vs.Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was stated that "The award of attorney's fees must be disallowed for want of factual and legal premise in the text of the decision rendered by the court of origin and the appellate court as well." WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it ordered the reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of respondent Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The temporary restraining order/preliminary injunction heretofore issued is hereby made permanent. SO ORDERED.

G.R. No. L-31641 October 23, 1981 MAYOR EULOGIO E. BORRES, petitioner, vs. HON. MATEO CANONOY, Presiding Judge, Court of First Instance of Cebu, Branch III, 114th Judicial District, and SILVERIO PARAGES, respondents. DE CASTRO, * J.: In 1968, herein petitioner Eulogio Borres was then the acting mayor of Cebu City, while private respondent Silverio Parages was a detective in the Cebu Police Department holding such position in a permanent capacity being a civil service eligible. He was assigned to the Homicide and General Investigation Section of the Investigation Branch of said department, particularly to the Missing Persons Section. On November 14, 1968, acting on verbal complaints that respondent Parages had been molesting Chinese businessman in Cebu and the fact that his performance was not satisfactory, petitioner Borres issued a memorandum ordering the detail of respondent to his office. 1 On November 21, 1968, after the said detail order was endorsed by the Chief of Police, Parages was served with a copy thereof, but he refused to receive it and to comply with said order. He informed petitioner that he was declining the detail because the order was illegal 2 and continued to report to his unit. 3 On December 7, 1968, Parages filed a petition for prohibition and injunction in the court a quo against petitioner. The court, however, did not issue the writ of preliminary injunction as prayed for, but preferred to hear the evidence before taking any action. 4 Meanwhile, in view of respondent's refusal to comply with the detail order, petitioner charged him with insubordination and neglect of duty in the Police Commission through the City Board of Investigators. At the same time, he ordered the suspension of respondent. 5 Respondent thus amended his petition for prohibition and injunction, with the additional prayer that his suspension be declared illegal. After trial on the merits, the trial court rendered its decision dated February 4, 1969 declaring the detail order of November 14, 1968 illegal and therefore null and void, for being contrary to Section 90 of Republic A.ct No. 3857, otherwise known as Revised Charter of the City of Cebu and to the constitutional protection of security of tenure. Consequently, it held the order of suspension dated December 16, 1968 likewise illegal, and ordered the immediate reinstatement of private respondent to the service and the payment of his back salaries. In the order of March 3, 1969, the lower court denied petitioner's motion for reconsideration of the decision and granted the immediate execution of the judgment pending appeal upon filing by private respondent of a bond in the sum of P 3,000.00. 6

Hence, petitioner filed the present petition for review on certiorari, raising principally the issue of whether or not it is within the power of the Mayor to order the detail of private respondent under the Revised Charter of the City of Cebu and the latter's suspension for refusing to comply with the order. It is the contention of herein petitioner that although Section 90 of the Revised Charter of Cebu, which provides: Section 90. Power and Duties of the Chief of Police. There shall be a Chief of Police with a salary of seven thousand eight hundred pesos per annum who shall have charge of the police department and everything pertaining thereto including the organization, administration, discipline, and disposition of, and the transfer of, members from and to the city police and detective bureau; ... and shall promptly and faithfully execute an orders of the Mayor, including assignments and transfer of personnel . is applicable, it should, however, be read in the light of section 20 of the said law, which reads: Section 20. General Powers and Duties of the Mayor. The Mayor shall have the following general powers and duties: xxx xxx xxx e. To see that executive officers and employees of the city are properly discharging their respective duties. The Mayor may, in the interest of the service, transfer officers and employees not appointed by the President of the Philippines from one section, division, service, or department to another section, division, service, or department without changing the compensation they receive. Petitioner likewise cites Section 19 of the City Charter which provides: Section 19. Nature of Office; Qualifications, compensations. The Mayor shall be the Chief executive of the city and as such shall have immediate control over the executive functions of the different departments and agencies of the city, subject to the general supervision of the President as may be provided for by law ... . and Section 32 which enumerates the departments on which the mayor may exercise supervision and control and reads: Section 32. City Departments. There shall be the following city departments over which the Mayor shall have direct supervision and con trol any existing law to the contrary notwithstanding: xxx xxx xxx (6) Police Department xxx xxx xxx Private respondent, on the other hand, claims that pursuant to Administrative Order No. 42, Series of 1937, issued by the Civil Service Commission "whenever the Head of any Department or Dependency of the National Government deems it necessary to assign any employee outside of the Bureau or office where he is regularly employed, or to perform within the same Bureau or office a kind of work which is different from that for which the position he occupies has been provided, the said Department or Dependency shall issue an order stating the necessity for such special assignment and a copy of the older shall be furnished to the Budget Office, but no such special assignment shall be made for more than 30 days." He also claims that in addition to the foregoing requirement, Memorandum Circular Nos. 45 and 29 of the Civil Service Commission dated September 24, 1964 and July 29, 1965, respectively require that all assignments and reassignments to positions of a grade or character not contemplated by the examination from the results of which appointment was made ... should also be submitted to the Commission for prior approval. Aside from the aforementioned administrative order and circulars, private respondent likewise cites Section 684 of the Revised Administrative Code which provides: No person appointed to a position in the classified service shall, without the approval of the Commission of Civil Service, be assigned, to or employed in a position of a grade or character not contemplated by the examination from the result of which appointment was made, unless otherwise provided by law. Private respondent also disputes the validity of his suspension, claiming that contrary to Section 16 of Republic Act No. 4864, he was suspended even before the filing of an administrative complaint against him. Section 16 provides:

Section 16. Suspension of Members of the Police Force or Agency . When an administrative charge is filed under oath against any member of the local police agency, the city mayor or municipal mayor, as the case may be, may suspend the respondent: Provided, That the charge involves disloyalty to the government, dishonesty, oppression, grave misconduct, serious irregularities, or serious neglect of duty, if there are strong reasons to believe that the respondent is probably guilty thereof which would warrant his suspension or removal from the service. ... . He further contends that the suspension order is a premature conclusion considering that the detail order was then already subject of a judicial determination as to its validity. Under the foregoing facts and the pertinent laws cited, the power of petitioner, as Mayor of Cebu City, to detail respondent cannot be denied. Such power to detail must necessarily be deemed included in his power of control and supervision over different departments, among which is the Police Department, as expressly so provided in Sections 19 and 32 of the Revised Charter of Cebu. In the case of Mondano vs. Silvosa, 97 Phil. 143, this Court had the occasion to define "Supervision" and "control", thus: Supervision means overseeing of the power or authority of an officer to see that subordinate officers perform their duties; control on the other hand, means the power of an officer to alter, modify or nullify or set aside what subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. In Rodriguez, et al. vs. Montinola, et al., 94 Phil. 964, 972, We had earlier said: To supervise is to oversee, to have oversight of, to superintend the execution of or the performance of a thing, or the movements or work of a person, to inspect with authority: to inspect and direct the work of others. It is to be noted that there are two senses in which the term "supervision" has been understood. In one it means superintending alone or the oversight of the performance of a thing without power to control or to direct. In the other, the inspection is coupled with the right to direct or even to annul. The decisions of courts in the United States distinguish between supervision exercised by an official of a department, and supervision for the purpose of preventing and punishing abuses, discrimination and so forth. If by the grant of the power of control and supervision, the Mayor can nullify or set aside what a subordinate had done in the performance of his duties, it is evident that he can order the detail of private respondent to correct or prevent him from committing any abuse in the performance of his duties; otherwise, said Sections 19 and 32 of the city charter would just be stale and meaningless provisions. The power to detail may also be gleaned from the fact that Section 20 of the same charter provides that the Mayor has the power to see to it that executive officers and employees are properly discharging their respective duties. It should be recalled that the Mayor issued the questioned detail order after he has received reports that Parages' efficiency is far from satisfactory and had been molesting Chinese businessmen. Hence, in this desire to gain information of actual facts and closely look at his activities, he ordered the detail of private respondent to his office. There is no effective way by which the Mayor can see to it that private respondent properly discharged his duties. Furthermore, the same Section 20 authorizes the Mayor, in the interest of the service, to transfer officers and employees from one section, division, service or department without changing the compensation. A transfer is a movement of personnel, more or less permanent in nature, while detail is merely temporary. In the former, the employee concerned loses position, while in the latter he does not. 7 It would be illogical to hold that a Mayor can transfer employees from one station to another which action involves permanency and severance of official connection of the transferee with his former position, but cannot order the detail of private respondent which is for a more or less brief period, and is therefore only temporary in character. The power of the Mayor in the disposition and transfer of members of the Police Department is not by any means limited by the provision of Section 90 of the Revised Charter of the City of Cebu which refers expressly to the powers and duties of the Chief of Police of Cebu which are thereby enumerated. Among such duties is to execute promptly and faithfully all orders of the Mayor "including assignments and transfers of personnel." Section 90 of the said charter, therefore, far from supporting private respondent's claim of illegality of his detail order issued by the Mayor, expressly recognizes the latter's powers to make transfer of personnel in the police department, under the more general grant of power to him under Section 20 of the Charter of Cebu City which gives him very broad power to make transfer of officers and employees from one section, division, service or department to another section, division, service or department without changing the compensation they receive. The administrative order and circulars cited by private respondent are totally inapplicable to the case at bar. Administrative Order No. 42, Series 1937, refers to Head of any Department or Dependency of the National Government assigning any employee outside of the bureau or office, where he is regularly employed. Moreover, they are in the nature of general laws which cannot prevail over the charter of Cebu which is a special law granting the City Mayor exclusive power of control and supervision over city employees. Public service and the practical necessities of efficient and honest

government demand immediate action from the Mayor. The stability and efficiency of the city government may be jeopardized if the Mayor has to secure prior approval of the Commissioner of Civil Service in order that he may validly detail and closely supervise an employee. As was aptly said in Pineda vs. Claudio, 28 SCRA 34, it is the local executive, more than anybody else, who is primarily responsible for efficient (and honest) governmental administration in the locality and the effective maintenance of peace and order therein, and is directly answerable to the people who elected him. Nowhere is this more true than in the sensitive area of police administration. Similarly, the case of Lejano vs. Garcia, 109 Phil. 117. which held that an office cannot be detailed or transferred even temporarily without his consent has no application in the instant case. In that case, the transfer of petitioner Lejano already amounted to removal, for as found by this Court, such transfer was not a mere temporary assignment but a veritable new appointment which he had declined, and that respondents had already appointed another to take Lejano's place. Likewise not in point is the constitutional provision on security of tenure. A temporary detail is neither removal, suspension or transfer when made in the interest of public service 8 and absent a showing of manifest abuse of discretion or that the detail is due to some improper motive or purpose. 9 As found by the respondent court, the alleged bad faith of the petitioner in ordering the detail of respondent to his office is not clear and the doubt should be resolved in his favor. Be that as it may, it should also be stressed that the constitutional provision on removal or suspension except for cause as provided by law gives in to the fundamental postulate that a public office is a public trust. 10 As regards the order of suspension dated December 16, 1968, We are also constrained to reject the contention of private respondent that his suspension is invalid because it was made before the filing of the complaint. For while it is true that the complaint dated December 16, 1968 was forwarded by the Office of the Mayor and filed before the Police Commission only in the morning of December 17, 1968, 11 the said suspension order was expressly made to take effect only upon receipt of the same by petitioner. 12 it was not shown when petitioner received said order of suspension, but in all likelihood it must have been not before the filing of the complaint. Neither does the filing of the petition for prohibition and injunction render the suspension order invalid. The mere filing of the petition did not, ipso facto, make the detail order illegal, nor did it authorize private respondent to ignore the said order, the implementation of which had not been restrained by the lower court. Noteworthy is the fact that the issuance of the detail order carries with it the presumption of regularity. 13 The suspension order was predicated on his obstinate refusal to obey the detail, and although the charge involved was denominated by petitioner as neglect of duty it cannot be doubted that such refusal properly constitutes grave misconduct which is one of the grounds for suspending an officer under Section 16 of the Polcom Law. WHEREFORE, the decision of the lower court dated February 4, 1969 is hereby set aside and another one is entered declaring legal and with full force and effect petitioner's questioned detail and suspension orders. Without cost. SO ORDERED. Footnotes 7 The present P.D. 807, otherwise known as the Civil Service Decree of the Philippines, defines "transfer" and "detail" as follows: "(c) Transfer.transfer is a movement from one position to another which is of equivalent rank, level or salary without break in service involving the issuance of an appointment. "It shall not be considered disciplinary when made in the interest of public service, in which case, the employee concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission. "The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency: Provided, however, That any movement of the non-career service to the career service shall not be considered a transfer." xxx xxx xxx (f) Detail-A detail is the movement of an employee from one agency to another without the issuance of an appointment and shah be allowed only for a limited period in the case of employees occupying professional, technical and scientific positions. .

G.R. No. 81356 February 26, 1990 REYNOSO B. FLOREZA, petitioner, vs. HON. JAIME ONGPIN in his capacity as Secretary of Finance and HON. BIENVENIDO A. TAN, JR., in his capacity as Commissioner of Internal Revenue, respondents. G.R. No. 86156 February 26, 1990 REYNOSO B. FLOREZA, petitioner, vs. CIVIL SERVICE COMMISSION and HON. BIENVENIDO A. TAN, JR., in his capacity as Commissioner of Internal Revenue, respondents. GUTIERREZ, JR., J.: The Court is confronted once again with issues stemming from the reorganization of the government following the issuance on February 25, 1986 of Presidential Proclamation No. 1 calling on "all appointive public officials to submit their courtesy resignations." Petitioner Reynoso B. Floreza joined the government service in May, 1955 as a clerk (action attorney) in the Administrative Division of the Department of Finance. In December, 1959, he transferred to the Bureau of Internal Revenue (BIR) where he was appointed Senior Revenue Examiner. In recognition of his competence and perseverance, he received regular promotions in the BIR over the years. In September, 1980, while based in Davao City as Regional Director of Revenue Region No. 11-B, he was informed by then Acting BIR Commissioner Ruben B. Ancheta of the latter's intention to designate him to the position of Revenue Service Chief (Legal). 1 The designation was necessary to avoid "a possible conflict of interest situation" arising from the fact that the incumbent Service Chief was Atty. Imelda L. Reyes, the wife of the then newly-appointed Judge of the Court of Tax Appeals, Alex Z. Reyes, 2 who would have to appear before her husband in BIR cases. Floreza accepted the designation and Acting Commissioner Ancheta issued Travel Assignment Order No. 213-80 dated October 2, 1980 directing Floreza to report to his new assignment as Revenue Service Chief (Legal) and naming Imelda L. Reyes as Revenue Service Chief (Planning and Policy) 3Two years later or on October 6, 1982, Floreza was given a regular appointment as Revenue Service Chief. 4 He was thus Revenue Service Chief (Legal) when, on April 4, 1986, pursuant to the reorganization program, BIR Commissioner Bienvenido A. Tan, Jr. issued a memorandum exhorting all Revenue Service Chiefs and their Assistants, and all Revenue Regional Directors and their Assistants to "tender their resignations to give the authorities concerned the widest latitude in effecting a reorganization of the Bureau." 5 Petitioner refused to tender his resignation. 6 On April 28, 1986, Commissioner Tan issued Travel Assignment Order No. 11-86 assigning Floreza to the Office of the Commissioner as Consultant due to "the exigencies of the service." 7 The same order directed Jaime M. Maza to report to the Legal Office as its acting chief. Under Travel Assignment Order No. 270-86 dated November 11, 1986, Maza and Rizalina S. Magalona were respectively designated Service Chiefs for the Legal Office and the Management and Policy Service. 8 On January 30, 1987, the President issued Executive Order No. 127 reorganizing the Ministry of Finance. 9 Three days later, or on February 2, 1987, the new Constitution was ratified. Section 3 of the transitory provisions provides that all existing executive orders and issuances not inconsistent with the constitution "shall remain operative until amended, repealed or revoked." Thereafter, the committee constituted to effect the reorganization of the Bureau submitted a staffing pattern and structure to the Commissioner and the Secretary of Finance. 10 Feeling that he had been placed in a "freezer" 11 and having been confidentially advised that he would be removed from the position of Revenue Service Chief (Legal) as he was not among those recommended for reappointment, 12 Floreza filed in the Court of Appeals on June 4, 1987 a petition for prohibition with prayer for a writ of preliminary injunction. He alleged in the petition that he had served the government with distinction having been credited, among other things, with authoring various innovations in the Tax Code; that he was highly rated by former Commissioners of the BIR; that he was the "rightful contender in points of experience and competence" to the position of Deputy Commissioner, and that he failed to get said position because he incurred the ire of respondents Secretary Jaime Ongpin and Commissioner

Bienvenido A. Tan, Jr., after he appeared before the Tanodbayan and executed sworn statements therein regarding a multi-billion tax case involving said officials and multinational gas companies. 13 He averred that he was not putting in issue "the wisdom of the administration's desire to reorganize the executive arm of the government" but he was challenging the constitutionality of his "removal without cause, from an office which has not been abolished nor reorganized." 14 He contended that Executive Order No. 127 violated the constitutional guaranty on security of tenure and that the Freedom Constitution having been superseded by the 1987 Constitution, he "cannot be removed or dismissed without just cause, much less, without formal charge or prior notice." 15 He prayed for the issuance of a writ of preliminary injunction to enjoin the enforcement and implementation of Executive Order No. 127 and, after hearing, for a judgment declaring his "contemplated removal" as violative of the Constitution and the civil service law. 16 In their answer, respondents alleged that Floreza's appointment as Revenue Service Chief was authorized under then Item No. SB-1 of Batas Pambansa Blg. 80 for the Planning and Policy Service and not for the Legal Service; that Floreza was not required "but merely encouraged" to tender his resignation to give the authorities concerned the widest latitude in effecting the reorganization; that Floreza was relieved of his duties in the Legal Office on April 28, 1986 after his designation as consultant in the Office of the Commissioner, and that Jaime M. Maza, who was designated as acting chief of the Legal Office, became the "duly appointed and qualified Revenue Service Chief, Legal Office", on November 11, 1986. Respondents asserted that the petition for prohibition was improper and that it failed to state a cause of action inasmuch as petitioner had "in fact been removed effectively from the position of Revenue Service Chief, Legal Office that assuming Floreza's "threatened removal" referred to his position as consultant, the Court of Appeals had "no jurisdiction over the nature of the subject of the suit on the ground of prematurity and failure to satisfy the requirement of Sec. 2, Rule 65 of the Rules of Court that the petitioner must allege the facts with certainty"; that said court had no jurisdiction over the action insofar as it pertained to Floreza's removal as Revenue Service Chief since the matter fell under the provisions of Executive Order No. 17; and that the petition stated no cause of action on the ground that any removal pursuant to a bona fide reorganization under Executive Order No. 127 was valid. 17 In reply to said answer, Floreza maintained that he had always been performing the duties and responsibilities of Revenue Service Chief (Legal) and that was shown by Travel Assignment Order No. 11-86 dated April 28,1986 which directed him to report from said office or position to the Office of the Commissioner as consultant therein. He stated that the memorandum exhorting employees and officials to tender their resignation was not merely meant to "encourage" such resignation because it set the date for resigning and attached a suggested form for resignation. He added that in a dialogue with Commissioner Tan regarding the observance of due process in the acceptance of resignation, he acted as the spokesman of the BIR top echelon although he chose not to resign. Floreza further averred that Jaime M. Maza was not the duly appointed and qualified Revenue Service Chief of, the Legal Office because Maza's latest appointment was only that of head revenue assistant. On the other hand, Floreza still held the position of Revenue Service Chief and continued to receive the salaries and benefits appurtenant thereto and hence, his designation as a consultant did not amount to his removal from the position of Revenue Service Chief. Floreza explained that in the BIR, it was not uncommon for an official or employee to perform the functions of a position other than the position item indicated in his appointment papers because the overriding considerations were the interests and exigencies of the service. Hence, of the nine Revenue Service Chiefs, only two were working in the specific services where their items belonged. Assuming arguendo that his item was that of Revenue Service Chief (Planning and Policy), still, there was no need for him to be reappointed to said position because Executive Order No. 127 retained all the nine Services and therefore, he was covered by the constitutional protection on security of tenure. No item had been abolished. There was no reduction in force. On the jurisdictional issues raised by the respondents, Floreza insisted that he had satisfied the requirements of Sec. 2, Rule 65 because while he was stin the Revenue Service Chief (Legal) even after his designation as consultant, Jaime M. Maza was merely designated as acting Revenue Service Chief (Legal). Furthermore, there was a clear indication that he was "about to be removed from the BIR" since in the list of top officials of the Bureau which was published in the August 1, 1987 Anniversary Issue of the Philippine Revenue Journal his name did not appear either a Revenue Service Chief or as Consultant. Floreza also claimed that his removal from the position of Revenue Service Chief (Legal) did not fall under Executive Order No. 17 on account of the rulings of the Review Committee set up under said executive order and the Supreme Court, respectively, in Appeal No. 672, "Gimarino v. Secretary of Justice" (May 18,1987) and in G.R. No. 77918, "Lecaroz v. Ferrer" (July 27, 1987). 18 He also disputed respondents' averment that the petition stated no cause of action because the one-year period from February 25,1986 had elapsed and as ruled in De la Llana v. Alba, 19 removal pursuant to a bona fidereorganization refers to removal by reason of non-reappointment, which kind of removal must be for cause. 20 On September 29, 1987, the Court of Appeals rendered a decision 21 dismissing the petition for prohibition for lack of merit. It ruled that Executive Order No. 127 was issued pursuant to Section 2, Article III of the Freedom Constitution mandating that "(a)ll elective and appointive officials and employees under the 1973 Constitution shall continue in office

until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25, 1986." It stated that Floreza's non-reappointment as Revenue Service Chief (Legal) did not violate his constitutional right to security of tenure for it merely confirmed his earlier separation from the post. It explained that through Section 59 of Executive Order No. 127 which took effect on January 30, 1987 or within the one-year period prescribed by the Freedom Constitution, personnel of the Ministry of Finance, including Floreza, were considered removed on said date. The appellate court cited the resolution of this Court in Jose v. Arroyo 22 which states that the provisions of Section 16, Art. XVIII of the Constitution explicitly "authorize the removal of career civil service employees not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution.'" Floreza filed a motion for the reconsideration of the Court of Appeals decision. On December 23, 1987, the motion was denied for lack of merit. The Court of Appeals said: With respect to petitioner's arguments, and as We held in Our decision, upon the effectivity of Executive Order No. 27 (sic), all personnel of the Ministry of Finance (now Department of Finance) continued in their functions only in hold over capacities. And Executive Order No. 27 (sic) was validly issued pursuant to Section II of Article III of Proclamation No. 3 which authorized removals without cause if exercised within one (1) year from February 25, 1986. Further, Section 16 of Article XVIII of the 1986 Constitution explicitly authorizes the removal of career civil service employees not for cause but as a 'result of the reorganization pursuant to Proclamation No. 3,' clearly recognizing the legality of the continuation of reorganization even beyond February 26,1987. The terms of the said constitutional provision is much too clear, making it unnecessary for Us to discuss further whether it was really applied to the case of Jose v. Arroyo, et al. (G.R. No. 78485). Neither may it comfort petitioner that his alleged position has not been abolished. Whether his position is abolished or not is not important since removal can be effected not for cause but pursuant to a reorganization. Nor may he invoke the Civil Service Law which is merely a statute and which must give way when it collides with the Constitution. And with respect to the October 2, 1987 Guidelines, the same does not preclude removal without cause included. Hence, Floreza filed before this Court a "petition for review ad cautelam." As capsulized by petitioner, this case focuses on the validity of the removal or separation from the civil service even without cause of an incumbent whose position has not been abolished under the government reorganization to achieve harmony, prevent duplication of functions, promote efficiency, and eradicate graft and corruption. 23 On March 7, 1988, President Aquino issued appointment for Jaime M. Maza and Rizalina Magalona to the positions of Assistant Commissioners for Legal Service and Planning and Research Service, respectively. 24 It is not shown why Commissioner Tan had to secure Presidential appointments for these two items since persons appointed to these positions are not and have never been presidential appointees at least, not under the law. Under Executive Order No. 127, only the Commissioner and Deputy Commissioners are presidential appointees. No law indicating a change in the mode of appointment has been presented. Inasmuch as the Court of Appeals had not issued either a restraining order or a writ of preliminary injunction and, apprehensive that he might be removed without cause, Floreza appealed on March 12, 1988 to both the Department of Finance and the Civil Service Commission his non-reappointment as Revenue Service Chief and the appointment of Maza and Magalona to said position. The Department of Finance referred the letter to the Civil Service Commission. On September 5, 1988, the Civil Service Commission rendered a decision directing the BIR to appoint Floreza "to a position in the new staffing pattern equivalent or comparable to the rank of Revenue Service Chief with a salary correspondingly adjusted to the levels which comparable positions have been adjusted to after the reorganization." The Commission ruled: The issue to resolve is whether the appointment of Mr. Maza and Mrs. Magalona as Assistant Commissioners for Legal and Planning and Research, respectively, violated Floreza's security of tenure and whether he was deprived of due process during the reorganization. xxx xxx xxx On the basis of the above findings, the Civil Service Commission finds no violation of Floreza's right to security of tenure nor was there an infringement of his right to due process. Where a position is abolished, contenders for a similar or equivalent position must be ranked and rated according to their merits. There is no showing that the post of Assistant Commissioner is equivalent to the post of Revenue

Service Chief Assuming however that such is the case, there is no showing either that Floreza is more qualified than either Maza or Magalona to move up to the contested Assistant Commissioner post. In the absence of such a showing, the Commission assumes regularity and the exercise of prudence and good judgment relative to the appointments of Maza and Magalona by the President. As to due process, the presidential guidelines of October 2, 1987 directed that employees affected by reorganization must either be informed of their reappointment, offered another position in the same department/agency or informed of their termination. In Floreza's case, he was not terminated but offered another position in which he subsequently declined. His salaries emoluments were not stopped. He did not avail of his right to appeal said decision to the BIR-RAB and instead went to the DOF and the CSC. From this, it would appear that substantial due process has been accorded him. It is also the finding of this Commission however that the BIR did not controvert that Floreza's 32 years of service to the government have been unblemished by any administrative or disciplinary complaint. There was no showing either that his competence or integrity was ever in question. While, in the eyes of the present Commissioner of BIR, he may not have met the qualifications for the post of assistant Commissioner as to be recommended for presidential appointment, there is no showing either that he deserved to be demoted in rank even if he is allowed to retain his former pay. In compliance with the directive of the Civil Service Commission, BIR Commissioner Tan requested authority from the Department of Budget and Management to allow the BIR to assign to Floreza the position of Assistant to the Commissioner, the only "equivalent or comparable position" to Floreza's previous position of Revenue Service Chief, in view of the fact that for lack of funds, the position of Assistant to the Commissioner had been proposed for abolition under the "OP pay plan". 25Commissioner Tan also informed the Civil Service Commission of the proposal to appoint Floreza to the position of Assistant to the Commissioner. 26 On December 28, 1988, Floreza filed with this Court a petition for review on certiorari of the decision of the Civil Service Commission which was docketed as G.R. No. 86156. He prays therein that said decision be modified by "restoring" him to the position of Revenue Service Chief (Legal) 'retitled Assistant Commissioner (Legal)." On January 2, 1989, the Department of Budget and Management approved the "creation" of the position of Assistant to the Commissioner "effective upon implementation of Executive Order No. 127," and ordered the abolition of three positions in the BIR to provide the necessary funding for the "created" position. 27 Thereafter, Floreza received his permanent appointment as Assistant to the Commissioner with compensation at the rate of P 120,000 per annum effective November 1, 1987. 28Floreza accepted the position subject to the decision of this Court in these two petitions. G.R. No. 81356 is a petition for review on certiorari of the decision of the Court of Appeals dismissing Floreza's petition for prohibition. G.R. No. 86156 is also labelled a petition for review on certiorari but, for purposes of resolving the issues raised therein, the petition shall be considered a special civil action of certiorari inasmuch as judgments of the Civil Service Commission may be brought to this Court only through certiorari under Rule 65 of the Rules of Court. 29 The petition in G.R. No. 81356 revolves around the issue of whether or not by virtue of Section 59 of Executive Order No. 127, Floreza was removed from the service as of the issuance of said executive order on January 30, 1987, Section 59 states: SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article Ill of Freedom Constitution. The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created hereunder shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents whose positions are not included therein or who are not reappointed shall be separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled under existing laws, rules and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of service, or the equivalent nearest fraction thereof favorable to them on the basis of highest salary received, but in no case shall such payment exceed the equivalent of 12 months salary. No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin the separation/replacement of any officer or employee effected under this Executive Order. 30 A careful reading of Section 59 of Executive Order No. 127 shows that it is a device intended to overcome the lapse of the power to reorganize under the interim or "Freedom Constitution" with the effectivity of the 1987 Constitution. 31 Thus, an incumbent retained in a hold-over capacity is not yet formally terminated in his government employment. At the same

time, he has lost his right to security of tenure because if he is not reappointed when his former item is filled, then he is deemed separated. The same paragraph, however, mandates that separation under Executive Order No. 127 should follow the provisions of Article III of the interim Constitution and the procedure under Executive Order No. 17. This means that separation or replacement of officers or employees should be "only for justifiable reasons" 32 or for any of the grounds enumerated in Section 3 33 of the latter executive order. None of these justifiable reasons or grounds exists in this case of Floreza. As stated in the decision of the Civil Service Commission, there is no controversion of the fact that Floreza's 32 (now 34) years of service are unblemished by any administrative or disciplinary complaint. There is no showing that his competence or integrity was ever in question. He went up gradually in the ladder of promotions at the BIR under different Commissioners throughout those 32 years. The only reasons he can find for his non- reappointment are the sworn statements he filed as Chief of the BIR Legal Office with the Tanodbayan regarding a multi-billion peso tax case involving multinational gas companies with which the Secretary and Commissioner were earlier connected before their appointments to top government positions. The number of the item to which Floreza was appointed belongs to the Policy and Planning Service. However, from the time he was appointed Revenue Service Chief, he served as head of the Legal Service. Under the authority given to the Commissioner, he switches the Service Chiefs from one service to another in the best interests of their agency especially in order to maximize BIR collections. Moreover, the appointments extended to heads of services at the time were as "Revenue Service Chiefs" with no indication of what particular service they were going to administer. Moreover, Floreza's assignment as consultant in the Office of the Commissioner was undertaken through the usual issuance of a travel assignment order as dictated by the "exigencies of the service." Floreza's movement may not be considered as a transfer within the contemplation of Section 27(c) of Presidential Decree No. 807 (Civil Service Decree) for it was more of the detail under Section 24(f) than a transfer. Had it been a transfer, Floreza would have been issued an appointment as consultant. 34 Floreza continued holding the position of Revenue Service Chief until Commissioner Tan went to the President for the appointments of Jaime M. Masa as Assistant Commissioner for the Legal Service and Rizalina S. Magalona as Assistant Commissioner for the Planning and Research Service on March 7, 1988. 35 Since both the Planning and Policy (or Research) Service and the Legal Service were given new Chiefs, Floreza was in effect terminated in his employment even as he was offered a demotion in rank to replace it. It should be emphasized that by that time, the 1987 Constitution had long been in full force and effect. In the much-awaited decision in Dario v. Mison and its companion cases, 36 this Court ruled that government reorganization may still continue under the 1987 Constitution provided that the bona fiderule is followed. The same decision upheld the application of Republic Act No. 6656, Section 13 of which gives retroactive effect as of June 30, 1987 to the rights and benefits provided therein. Section 12 thereof provides: SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when pursuant to a bonafide reorganization, a position had been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by less qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of officers in the department of agency concerned and the reclassified offices perform substantially the same functions as the original offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. We apply the ruling in Dario v. Mison and Section 2 of Republic Act 6656 to this petition. We hold that Floreza was deprived of his right to security of tenure by his non-reappointment to the position of Revenue Service Chief or its new title under the reorganized Bureau of Internal Revenue. It should be remembered that after February 2, 1987, any reorganization undertaken by the government is circumscribed by the provisions and safeguards of the new Constitution. Hence, when Floreza was not reappointed as Revenue Service Chief or as Assistant Commissioner either in the Legal

Service or in the Planning and Research Service, and other persons were appointed to the positions, he was, in effect, dismissed from the service in violation not only of his right to security of tenure but to due process as well. Floreza has in his favor recent jurisprudence and the provisions of Section 2, Republic Act 6656, specially paragraph (d). However, there has been a reclassification of the various services in the BIR. Executive Order No. 127 particularly states that the Legal Service of the BIR shall be headed by a Service Chief The same provision is embodied in Section 20 of Executive Order No. 292 otherwise known as the "Administrative Code of 1987." 37 The BIR, however, after its reorganization adopted the realignment of position classes prescribed by Executive Order No. 1042 38 which was issued by former President Marcos on July 30, 1985. The position of Revenue Service Chief has been renamed Assistant Commissioner. Accordingly, the position of Assistant Commissioner has become part of the Career Executive Service. These acts of the BIR form the basis for presidential appointments to positions which, under the law, do not require the President's own attention. We shall not delve further into Floreza's allegations about the respondent Commissioner's bias against him and the circumstances which led Floreza to conclude that inasmuch as he could not be eased out of government service without doing violence to his legal rights as a public official, respondent Commissioner was actually effecting his dismissal behind the cloak of reorganization. Floreza's allegations are, strictly speaking, factual matters although they are unrebutted. We see no need to rule upon these matters. One factual circumstance, however, cannot escape the Court's notice. On March 14, 1988, the respondent Commissioner informed Floreza through a letter that in the reorganization of the BIR, Floreza had been "allocated to the item of Chief Revenue Officer III authorized in the Legal Branch, Revenue Region No. 5, Legazpi City", that there would be no reduction of his present salary and that he would be temporarily assigned to the Advisory Council under the Office of the Commissioner. 39The records also show that up to April, 1988, Floreza was being paid the salary of an Assistant Commissioner. However, from May, 1988, he received the same salary under the item of Chief Revenue Officer III notwithstanding the fact that he had manifested that he was not accepting said position. 40 He was, therefore, demoted. Demotion in office by assigning an employee to a lower position in the same service which has a lower rate of compensation is tantamount to removal, 41 if no cause is shown for it. More so, if it is not part of any disciplinary action. While Floreza was allowed to receive the salary of Revenue Service Chief, his demotion to a position without justifiable cause smacks of arbitrariness which has no place in a government that nurtures the constitutional mandates of security of tenure and due process, Moreover, the position of Chief Revenue Officer III being three grades lower than that of Revenue Service Chief, the respondent Commissioner violated Section 4 of Republic Act No. 6656 which provides that "officers and employees holding permanent appointments shall be given preference for appointment to the new positions or in case there are not enough comparable positions, to positions next lower in rank." Under Executive Order No. 1042, the position next in-rank to that of Assistant Commissioner is Head Revenue Executive Assistant after which follow Chief Revenue Officer IV and Chief Revenue Officer III in that order. Section 2 of Republic Act No. 6656 entitles a victim of a removal in violation of the bona fide rule to a reinstatement or reappointment to the position from which he was removed. The fact that there is now an appointee to the position he claims, holding an appointment signed by the President, is of no moment. There was no vacancy in the office to which Jaime M. Maza was appointed and, therefore, his promotion was not valid. We again apply the rule in Dario v. Mison where we stated: The Commissioner is admonished, specifically, for failure to reinstate promptly the separated employees to their former positions or equivalent ones, if the former had been abolished, and to pay backwages arising from their long lay-off. The Court indeed, has reliable information-(1) that not a few reinstated personnel have been detailed, without their consent, to far-flung offices of the Bureau; (2) actual demotions thereof, and (3) that their backpays have been withheld by reason of nebulous queries as to who foots the bill, the Government or the Commissioner in his personal capacity. The Court strongly reiterates its order decreeing the separation of replacements and the restoration of the dismissed employees in question. We have spoken and we can not anymore be clearer. (G.R. No. 81954 and other companion cases, December 19, 1989, p. 2; Emphasis supplied) WHEREFORE, in G.R. No. 81356, the decision of the Court of Appeals is hereby SET ASIDE. In G.R. No. 86156, the decision of the Civil Service Commission is MODIFIED. The Bureau of Internal Revenue is ORDERED to REAPPOINT petitioner REYNOSO B. FLOREZA to his former item of REVENUE SERVICE CHIEF assigned to the Legal Service or ASSISTANT COMMISSIONER, Legal Service as the position is now called. SO ORDERED. Separate Opinions

MELENCIO-HERRERA, J., dissenting: I reiterate the grounds of my dissent in the Mison and companion cases. Narvasa, J., concurs. FELICIANO, J., dissenting: I dissent on the grounds set out in Mme. Justice Herrera's dissent in Dario v. Mison in which I had joined. Footnotes 18 In the former case, it was ruled that the Review Committee had lost jurisdiction over the petition for reconsideration of a termination notice in view of the ratification of the 1987 Constitution. In the latter case, this Court held that the one-year period from February 25, 1986 having elapsed, the petitioner cannot be considered removed from office by the mere designation and qualification of a successor. Petitioner, however, was an elected official. 33 The following shall be the grounds for separation/replacement of personnel: (1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; (2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the ministry Head concerned; (3) Gross incompetence or inefficiency in the discharge of functions; (4) Misuse of public office for partisan political purposes; (5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.

A.M. No. P-93-800 August 9, 1995 RTC MAKATI MOVEMENT AGAINST GRAFT AND CORRUPTION, complainant, vs. ATTY. INOCENCIO E. DUMLAO, Acting Clerk of Court of the Regional Trial Court Valenzuela, Metro Manila, respondent. A.M. No. P-93-800-A August 9, 1995 SUSAN QUINTO, complainant, vs. ATTY. INOCENCIO E. DUMLAO, Acting Clerk of Court of the Regional Trial Court of Valenzuela, Metro Manila, respondent.

KAPUNAN, J.: In a letter-complaint dated 11 January 1993, addressed to this Court, Respondent Atty. Inocencio E. Dumlao, then Branch Clerk of Court of the Regional Trial Court of Makati, Branch 134, was charged by the RTC Makati Movement against Graft & Corruption for allegedly engaging in usurious activities, immorality and violation of the Anti-Graft & Corrupt Practices Act (R.A. 3019, as amended). The complaint alleged that Respondent withheld the salary checks of all RTC Makati employees to compel them to borrow money from him at usurious rates, as evidenced by Trust Agreements. The amounts loaned are collected through his alleged paramour, Ms. Piedad Rufo (now Piedad R. Cruz), a clerk employed at the Cash Section of the Office of the Clerk of Court, RTC Makati. 1 Respondents was also charged with allegedly demanding money from party litigants and lawyers in exchange for favorable action on their cases. 2

Attached to the letter-complaint are the following supporting documents: Petition dated 25 April 1988 signed by about 90 employees of the Makati RTC requesting that the remittances of the employees' checks, allowances and other benefits be done either by registered mail addressed to the respective Branch Clerks or OIC's or by personal representation by one personnel of each branch upon authority from the Branch Clerk of Court or OIC; Memorandum of then Makati, RTC Clerk of Court Maximo C. Contreras directing the release of treasury warrants to the payees only, otherwise the release should bear his approval; Complaint for Sum of Money filed on 4 October 1990 by respondent Inocencio E. Dumlao against a certain Nelson Olandesca based on a promissory note which was attached to the complaint as Annex "A"; Affidavit complaint dated 15 October 1991 of respondent Inocencio E. Dumlao for estafa (trust agreement) against Adora Balinguit filed with the fiscal's office of Makati . . .; Subpoena issued in IS No. 92-1162 dated 20 February 1992 for estafa (violation of trust agreement) where the complainant is respondent Dumlao against one Lorie Ann Martinez who was then a court employee of Makati RTC Branch 149. Attached to the subpoena are two (2) receipts signed by Martinez as trustee and Dumlao as trustor. 3 Based on the rule laid down in the case "Anonymous Complaint Against District Judge Gibson A. Araula, CFI of Southern Leyte, Branch X" 4 that: [a]lthough the court does not as a rule act on anonymous complaints, cases are excepted in which the charged could be fully borne by public records of indubitable integrity, thus needing no corroboration by evidence to be offered by complainant, whose identity and integrity could hardly be material where the matter involved is of public interest. the complaint was given due course and a Resolution dated 3 May 1993 was issued requiring Respondent to comment. Respondent vehemently denied all the charges and branded the allegations as mere conjectures, hearsay and rumors without legal or factual basis. He revealed that since December 1992, he has been engaged in a confidential mission to help the Court Administrator expose the widespread corruption in the Makati RTC and he surmised that this is the reason for the "anonymous poison letter" against him. 5 In its Reply dated 27 July 1993, complainant Movement denigrated Respondent's claim as prime crusader against graft and corruption and challenged Respondent's appointment as a confidential agent in view of the latter's removal from the Land Transportation Office, prior to his appointment as Branch Clerk of Court of RTC Makati, Branch 34, for being notoriously undesirable. 6 On 7 April 1994, the Office of the Chief Justice received another letter-complaint against Respondent signed by Susan B. Quinto for: 1) Corruption and dereliction of duty for exacting money from court litigants in the pretext that the amounts exacted are his commissioner's fees, yet, he does not prepare his reports: 2) For operating a lending agency with the use of the facilities of the court and for exacting from court employees usurious interest: 3) For criminal negligence in the performance of his duties as Branch Clerk of Court of RTC, Branch 234, Makati, Metro Manila. 7 In a Resolution dated 1 June 1994, the aforementioned cases were consolidated and referred to Executive Judge Salvador Abad Santos of the RTC, Makati, Metro Manila, for investigation, report and recommendation. In the course of the investigation conducted by Executive Judge Abad Santos, no one appeared in behalf of the RTC Movement Against Graft & Corruption. However, complainant Susan Quinto testified and adduced evidence to substantiate her complaint. In his report submitted on 23 August 1994, Executive Judge Abad Santos made the following findings which we quote in full below: xxx xxx xxx

With regard with the first charge, the private complainant has shown through, among others, court records that respondent indeed charged commissioner's fees for the reception of evidence in at least 2 ex-partecases. These cases are Makati Insurance Company, Inc. versus Hadji Anthony Lim (Civil Case No. 91-217) and Household Finance Corporation versus Sps. Oledena (Civil Case No. 92-3449). Both cases are pending before Branch 134, RTC, Makati. Both cases were dismissed by the present presiding Judge Paul Arcangel for failure to prosecute only to find out that plaintiffs in the two (2) cases had already presented their evidence ex-parte on 20 July 1992 and 17 June 1993 respectively before the then Clerk of Court who was respondent Dumlao. Notwithstanding the protestations of respondent to the effect that he was not the recipient of the amount although he admitted he "billed" the parties and the subsequent recantation of one of the lawyers, the court still believes him to be liable since in the first place he admitted having demanded certain amounts from the parties. Again during his testimony he made an admission that he collected commissions of from P300.00 to P500.00 for the exparte reception of evidence. (TSN, 28 July 1994, pp. 6-7.) Nowhere in the Rules is the Clerk of Court allowed to charge and collect commissioner's fees for the reception of evidence ex-parte. On the contrary, on Page 32 paragraph 1 of the Manual for Clerks of Court, it is stated that "No Clerk of Court shall demand and/or receive commissioner's fees for reception of evidence ex-parte." This offense is aggravated by respondent's failure to prepare the commissioner's reports notwithstanding his having been paid at the ex-parte reception. Moreover, there is the unrefuted allegation of a certain Atty. Eugenio Macababayao that respondent asked P1,000.00 from him when he requested that his LRC Case No. M-2489 be set for hearing. It appears that the said case was filed on 11 February 1992. After the lapse of one or two months, when he went to respondent to request that the case be calendared, respondent asked for P1,000.00. Because he refused to pay, the case was not set for hearing. It was only on 17 January 1994 after respondent was transferred to another Court that the case was included in the Court's calendar. Whether or not respondent demanded money is no longer as important. The fact is it took almost two (2) years before the case was set for hearing. Among others, it is the duty of the Clerk of Court to assist the Judge in the matters such as this. With regard to the second charge of engaging in usurious activities, the evidence of private complainant are so preponderant that it cannot but be concluded that respondent was into usurious activities on government time and resources. The testimony of Arthur Blancaflor, his runner then, was given with ease and spontaneity and so complete that its veracity cannot be doubted. His testimony details respondent's collection process. Blancaflor on payday gets the pay checks of respondent's debtors, brings them to the payees for the latter's endorsement, gives them to respondent for his second endorsement and deposits them to respondent's account with the Philippine National Bank. This testimony is corroborated by that of Atty. Cynthia Marmita, Clerk of Court of Branch 136, RTC Makati who admitted having borrowed money from respondent "around 20 to 30 times" at 10% interest a month. (TSN, 15 July 1994, pp. 4-5.) Teresa Arzaga, a municipal employee detailed with Makati RTC also testified to the same effect except that the loans were coursed thru respondent's friend Piedad Rufo. (TSN, 12 July 1994, pp. 4-8.) Rosario Ambrosio also testified that she borrowed money from Piedad Rufo to the tune of around P50,000.00. This witness turned hostile when she denied having dealt with respondent with regard to her loan transactions although she admitted having heard of the same. (TSN, 12 July 1994, p. 8.) But what really convinced the court of respondent's lending activities are the documentary evidence attached to the complaint as annexes and introduced in evidence at the hearing. These are Exh. K, the information filed against RTC Makati employee Lorie Ann Martinez at the instance of respondent Dumlao for violation of Trust Agreement (Estafa): Exh. L, the affidavit-complaint of respondent Dumlao in the said estafa case where it is alleged that Lorie Ann Martinez "failed to deliver to the beneficiary, Ms. Piedad Ronquillo (Rufo) the sum of P6,000.00 on their delivery dates, i.e., June 15, and July 15, 1991, and likewise failed to return to complainant on or before June 18 and July 18, 1991, the said sum of P6,000.00 in violation of her obligation to do so, in accordance with the "Trust Agreement" referred to in the affidavit-complaint; Annex C of the complaint in Administrative Matter No. P-93-800, which is a copy of the complaint for sum of money filed by respondent Dumlao against one Nelson Olandesca based on a promissory note signed by the latter in favor of the former; and Annex D of the same complaint which is another affidavit-complaint for estafa again filed at the instance of respondent Dumlao vs. another RTC Makati court employee, Adora Balinguit, with the same "Trust Agreement" as exhs. L1 & L2 as basis. All these indubitably show that respondent was really engaged in lending activities especially in the light of respondent's failure to satisfactorily explain them. Finally, as to the charge of dereliction of duty as Branch Clerk of Court of RTC Makati Branch 134, all one has to do is to examine the Monthly Reports signed by respondent Dumlao and the inventory submitted by the present presiding judge of the said branch and it becomes apparent that while respondent Dumlao reported that their court had only 2 cases pending decision for the month of April, 1993; 4 for May 1993; and 2 for June 1993; yet the inventory submitted by Judge P. Arcangel as of 13 December 1993 shows about 120 cases were submitted for decision or with unresolved incidents some of which as early as 1983. Respondent's reliance on the report of the criminal and civil in-charge will not exculpate him from being negligent especially in the light of his own admission of "aberrations" and "shenanigans" going on in their branch. This should have all the more put him on his guard and he should have double checked the entries in the inventories given to him for his signature. 8 xxx xxx xxx

Based on the foregoing, Executive Judge Abad Santos recommended the dismissal of Respondent from service on grounds of grave misconduct and dishonesty prejudicial to the best interest of the service and acts unbecoming a court officer. After a thorough analysis of the records of the case, we find that the dismissal of Respondent is in order. We approve the recommendation of Executive Judge Abad Santos. Public service requires utmost integrity and strictest discipline. A public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task. By the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle solemnly enshrined in the 1987 Constitution that a public office is a public trust; and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. The conduct and behavior of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of responsibility. Their conduct, at all times, must not only be characterized by propriety and decorum but, above all else, must be above suspicion. Indeed, every employee of the judiciary should be an example of integrity, uprightness and honesty. 9 The nature and responsibilities of public officers enshrined in the 1987 Constitution and oft-repeated in our case law are not mere rhetorical words. Not to be taken as idealistic sentiments but as working standards and attainable goals that should be matched with actual deeds. In the case at bench, the particular public officer concerned is a Branch Clerk of a court of justice who is described as an essential officer in any judicial system, whose office is the hub of activities, both adjudicative and administrative 10 and who occupy a position of great importance and responsibility in the framework of judicial administration. 11 Clerks of Court are, thus, required to be individuals of competence, honesty and probity specifically mandated to safeguard the integrity of the court and its proceedings, to earn respect therefor, to maintain loyalty thereto and to the judge as the superior officer, to maintain the authenticity and correctness of court records and to uphold the confidence of the public in the administration of justice. 12 Did Respondent live up to his commitment? On the issue of Respondent's demanding and receiving so called "commissioner's fees," we find the charges against Respondent meritorious. The Manual for Clerks of Courts, which in essence is the "Bible for Clerks of Courts" 13 specifically provides that: No Branch Clerk of Court shall demand and/or receive commissioner's fees for reception of evidence ex-parte.
14

. . . The court shall allow the commissioner, other than an employee of the court, such reasonable compensation as the circumstances of the case warrant. . . . 15 (Emphasis supplied) Yet despite the express prohibition, a bill for the payment of P2,000.00 as commissioner's and stenographer's fees for the ex-parte presentation of plaintiff's evidence in the case of Makati Insurance Co., Inc. v. Hadji Anthony Lim(Civil Case No. 91-217) pending before Branch 134, RTC-Makati was issued and signed by Respondent on 20 July 1992. We find Respondent's explanation that he was not the commissioner appointed in the aforementioned case and that he did not receive any money 16 insufficient in view of his categorical admission on two (2) occasions that he signed the said bill. His convenient excuse that he could no longer recall who the assigned commissioner was, is simply incredible. xxx xxx xxx Q So you now admit that the signature found in the bill for the payment of commissioner's fees in this case, marked as Exh. "B" is your signature? A Admitted.
17

xxx xxx xxx COURT: Now, you received the amount of P2,000.00 as commissioner's fees, as it appears in this document? ATTY. DUMLAO: I cannot. . . it appears to be there Your Honor, but I cannot recall that now.

xxx xxx xxx COURT: That is your signature? ATTY. DUMLAO: It appears to be my signature Your Honor.
18

xxx xxx xxx Respondent's admission that he is unfamiliar with the Manual of the Clerks of Courts and is not even aware of its existence does not help him any. In his Supplemental Affidavit dated 29 July 1994, he categorically stated: 15.1 That respondent has no personal knowledge of the existence of the Manual for Clerks of Court, published in 1991, prohibiting the collection of commissioner's fees. In fact, herein respondent must admit that he saw the Manual for the first time only on July 28, 1994, during the hearing of this case, when the Executive Judge showed it to him. 19 Respondent confirmed such ignorance during his cross-examination: xxx xxx xxx Q Do you know for a fact that it's prohibited to collect commissioner's fees, under the rules? A Unless designated I think it is not authorized. Q Whether authorized or not you are not allowed to collect commissioner's fees, is it not? A I am not aware of that, Your Honor. Q Your not aware that it's prohibited? A Yes, Your Honor, I am not aware that it is prohibited, because that has been the usual practiced of the Court. COURT: Proceed. ATTY. NICOLAS: Q As Branch Clerk of Court in Branch 134 and as present Acting Clerk of Court of RTC Valenzuela, do you have a copy of this manual? (Counsel referring to Manual for Clerks of Court.) A No, I don't have. COURT: How long have you been a Branch Clerk ? A Thirteen (13) I think, Your Honor. ATTY. NICOLAS: Q Even if you don't have a copy of this Manual, are you aware of it's existence?

A No. Q You have not led your eyes on this Manual, you were not informed? A This is the first time I saw this. Q So, as Branch Clerk of Court and as present Clerk of Court, what do you use as your guidelines to perform your duties as Clerk of Court, in knowing what duties and responsibilities and how to go about such duties and responsibilities? A Well, it was the experienced that I have for the past thirteen (13) years and the work description of my appointment. 20 Respondent's ignorance of the existence and contents of the Manual for Clerks of Court clearly demonstrates how grossly remiss he has been in the performance of his duties as Branch Clerk of Court of Branch 134 RTC-Makati. He cannot rely on his thirteen (13) years of experience alone, vast though it may seem, because the law is constantly evolving. As a court officer, he should keep abreast of the various changes and amendments of the law. We view with skepticism the affidavit of Atty. Eugenio Macababayao, Jr., presented by Respondent, recanting his previous testimony that Respondent demanded P1,000.00 from his client in order that his case (LRC Case No. M-2489) can be set for hearing 21 and his present claim that the aforementioned amount is not for Respondent's own benefit but for sheriff's expenses. In his affidavit of 7 September 1994, Atty. Macababayao admitted that Respondent neglected to fully explain the purpose of the aforementioned amount. He stated thus: xxx xxx xxx 2.1. That when I follow up LRC Case No. M-2489 before Atty. Inocencio E. Dumlao to have the same set for hearing he told me to ask my client to prepare P1,000.00, and as explained to me afterwards, the purpose of the P1,000.00 was for the estimated sheriff's expenses. . . 22 (Emphasis supplied) xxx xxx xxx 2.3. That the insinuation and interference that the P1,000.00 to be prepared by my client was for the personal benefit of Atty. Dumlao was only the presumption of my client, because at that time, the purpose of the amount was not thoroughly explained to me. 23 Respondent's failure to explain the purpose for which the money will be used at the time that he solicited the same reflects poorly on his conduct as Branch Clerk of Court and how he carries out the functions of his office. More importantly, it was only two (2) years after the aforementioned case was filed, was it finally set for hearing on January 17, 1994 by Judge Paul T. Arcangel, notably after Respondent left RTC-Makati, Branch 134, 24 and without Atty. Macababayao, Jr. asking or giving anything. 25 Respondent, with his years of experience, ought to know that "the Clerk of Court is the model for the court employees to act speedily and with dispatch on their assigned tasks to avoid the clogging of cases in courts and thereby assist in the administration of justice without undue delay." 26 Anent the second accusation that Respondent allegedly operated a lending business at the RTC of Makati using the facilities and resources of the court and charging the court/government personnel exorbitant or usurious interest, we concur with the findings of Executive Judge Abad Santos. Witness Arthur Blancaflor, an employee of Br. 134, RTC Makati doing clerical work, has exposed in detail, the modus operandi of Respondent's lending activities. Material portions of his testimony are hereunder quoted: xxx xxx xxx ATTY. NICOLAS: Q I will ask you one by one. What is your position in Branch 134 of RTC Makati? A Casual, Ma'am. Q Doing what?

A Clerical work, ma'am. Q You mentioned in number 4 during your assignment in said Branch, you have personal knowledge of the lending activities of Atty. Dumlao? A Yes, ma'am. Q How much is the interest when he lends out money? A Ten percent per month, ma'am. Q What did you do for him regarding this lending activities of his? A He was giving me checks. COURT: What checks? A Salary checks, sir. ATTY. NICOLAS: Q Whose salary checks are these? A The employees who borrowed money from Atty. Dumlao. Q What did you do with these checks? A I asked the said employees to endorse the checks and then I return them to Atty. Dumlao. Q Afterwhich what did Atty. Dumlao do with the checks? A Atty. Dumlao signed all the checks and then asked me to deposit them to the PNB, Makati. Q After you deposited at PNB, you don't do anything else? A I returned the bank book to Atty. Dumlao. Q Does Atty. Dumlao pay you anything for this errand? A No, ma'am. Q Why do you do this for him? A Because he is my superior. Q Where? A At Branch 134. Q So, as Branch 134 Casual doing clerical work, you're under the supervision of Atty. Dumlao? A Yes ma'am. Q In doing this errand, you did not received any other compensation from him? A None, ma'am. 27

xxx xxx xxx The documentary exhibits presented by Complainant leave no doubt as to the existence of Respondent's lending operation, some of which even led to the filing (by Respondent) of criminal charges against borrowers who failed to pay their loans under the so-called trust agreements. 28 Such despicable acts cannot be tolerated by this Court. Respondent's reliance on CB Circular No. 905 implementing Monetary Board Resolution No. 225 which effectively suspended the provisions of the Usury Law is misplaced. Although Respondent may not be criminally or civilly liable, he is still administratively liable under the Civil Service Law where lending money at usurious rates of interests is specifically listed as grounds for disciplinary action. 29 Courts are not lending institutions. By engaging in lending activities, Respondent has caused dishonor to courts of justice. On the final issue of dereliction of duty, we likewise concur with the findings of Executive Judge Abad Santos. One of the duties of a Branch Clerk of Court is to attend all court sessions. 30 In the instant case, however, Respondent has seriously neglected this duty to the prejudice of public interest. Witness Rolando Santos testified thus: xxx xxx xxx Q Can you substantiate that allegation, why do you say that he's not performing his duties? A Well, my duty is inside the Court room; my duty is purely to interpret testimonies and to assist the Clerk of Court during the trial that is mandated by the Supreme Court, but during the course of the hearings it is seldom that I assist Atty. Dumlao, it is almost always me assisting the Judge during the trial. xxx xxx xxx ATTY. NICOLAS: Q In these trials, you are present during the hearing? A Yes, ma'am. Q Was Atty. Dumlao present in these hearings? A Seldom. Q But, generally was he present? A No, ma'am. 31 xxx xxx xxx In Raosa v. Garcia
32

we laid down the rule that:

Respondent's duties and responsibilities as branch clerk of court require that his entire time be at the disposal of the court served by him . . . to assure that full-time officers of the courts render the full-time service required by their office so that there may be no undue delay in the administration of justice and in the disposition of cases as required by the Rules of Court. We find Respondent's failure to prepare proper or correct monthly reports of cases a serious breach of duty. One of the basic responsibilities of a Branch Clerk of Court is the preparation of the monthly report of cases to be submitted to this Court 33 and this time Respondent cannot feign ignorance. In his supplemental affidavit dated 29 July 1994, Respondent reproduced in full his duties as Branch Clerk of Court: Under the direction of the Presiding Judge, he exercises supervision and control over the personnel of a particular branch of the court; performs the duties and functions of a Clerk of Court within the Branch; keeps the record and seal of the Court; examines records of all cases filed and calendared; issues court processes; signs minutes of the Court; administers oath; issues certificates of appearance and clearances; assists the Judge in the preparation of correspondences and endorsements for the signature of the latter; acts as the Administrative Officer of the branch;prepares judicial and administrative reports and signs and submits daily time records of employees;

requisitions equipments, supplies and materials and assumes custody of the same; acts as the Clerk of Court or Assistant Clerk of Court in their absence when so designated; and does related tasks. 34 (Emphasis supplied) And had he familiarized himself with the Manual for Clerks of Courts he would be acquainted with the specific procedure for carrying out this particular function. Reliance on the so-called Clerks-in-charge who prepare the actual reports, or particulary on their initials which allegedly indicate accuracy and veracity 35 is insufficient and is a lazy and sloppy manner of executing one's duties and responsibilities. This practice cannot be considered as proper supervision since Respondent in the above-mentioned procedure practically does next to nothing, his only contribution or input is his signature. Branch clerks of court must realize that their administrative functions are just as vital to the prompt and proper administration of justice. They are charged with the efficient recording, filing and management of court records, besides having administrative supervision over court personnel. They play a key role in the complement of the court and cannot be permitted to slacken on their jobs under one pretext or another. 36 They must be assiduous in performing their official duties and in supervising and managing court dockets and records. 37 Based on the foregoing and in compliance with our duty to help purge the judiciary of undesirable public servants, 38 we find Respondent guilty of grave misconduct and gross ignorance of the duties pertaining to his office and conduct prejudicial to the best interest of the service. We cannot countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and would diminish or even just tend to diminish the faith of the people in the judiciary. 39 WHEREFORE, Respondent ATTY. INOCENCIO E. DUMLAO is hereby DISMISSED from the service with forfeiture of all benefits, if any, and with prejudice to his reinstatement in government service, including government-owned or controlled corporations. SO ORDERED.

A.M. No. P-01-1475

October 17, 2003

JUDGE MANUEL R. AQUINO, complainant, vs. JOCELYN C. FERNANDEZ, Stenographer I, respondent. AUSTRIA-MARTINEZ, J.: Judge Manuel R. Aquino of the Municipal Trial Court of Caba, La Union submitted to the Office of the Court Administrator his "Report/Findings" dated November 16, 1998 recommending that an appropriate disciplinary action be imposed upon Jocelyn Fernandez who holds the position of Stenographer I in his sala. 1 According to complainant Judge, respondent failed to type the draft order in Criminal Case No. 4197, entitled "People of the Philippines vs. Jose Runes, et al." then pending in his court despite the instructions given by him on November 4, 1988. When asked to give a written explanation, respondent admitted her failure to accomplish said task with a promise not to commit the same offense, explaining that she had to prepare 18 copies of her daily time record and leave of absence. Respondent did not file any prior leave of absence for November 4 to 6, 1998 as required by law. Previously, respondent was reprimanded by the Clerk of Court for her absence in October of 1993 and by complainant Judge himself for her absences in October of 1996. Complainant Judge further complains that the stenographic notes of respondent were always submitted late and full of errors which caused her very low performance rating. 2 Complainant Judge attached to his report several annexes, to wit: Annex "A," his letter dated November 5, 1998 addressed to respondent asking her to give an explanation for her failure to type the draft order in "People vs. Runes"; Annexes "B" and "B-1," respondents explanation dated November 9, 1998, promising not to repeat the same offense; Annex "C", a memorandum of Clerk of Court Isabel D. Marquez reprimanding respondent for playing mahjong on November 8, 1993, a day she absented herself from work, and for being remiss in her duties particularly in drafting her stenographic notes; Annex "D", a memorandum dated November 6, 1996 of complainant Judge reprimanding respondent for her unauthorized absences on October 8 to 11, 1996 and October 18, 1996. 3 On April 2, 2001, this Court issued a Resolution treating said "Report/Findings" submitted by Judge Aquino as a regular administrative matter, and referring to the then Acting Executive Judge of the Regional Trial Court of Bauang, La Union for investigation, report and recommendation. 4

After due investigation, Judge Rose Mary R. Molina-Alim of the Regional Trial Court, Bauang La Union (Branch 33) submitted to the Court Administrator her Report and Recommendation, with the following findings: It appears that respondent committed several transgressions, thus: 1) Her failure to comply with the instruction to type the drafted order in Criminal Case No. 41978 entitled, "People of the Philippines vs. Jose Runas" on November 4, 1998; 2) For absenting herself from office for the period November 4,5,6, 1998 without prior leave of absence as required by law; 3) As early as October, 1993, Ms. Fernandez was again reprimanded by the court for her absence in office for allegedly playing "mahjong" particularly on October 8, 1993, and other transgressions; 4) For absenting herself from October 8 to 11, 1996 and October 18, 1996 without filing prior leave of absence, she was again reprimanded on November 6, 1996; 5) The stenographic notes transcribed by Ms. Fernandez are always full of errors and not transcribed on time despite constant reminders by the clerk of court. 5 and conclusion: To our mind, respondent is guilty of simple neglect of duty in failing to type the drafted order; gross dishonesty in being absent without any application for leave; serious misconduct in being absent just to play "mahjong". However, considering the prevailing circumstances of this case the respondents absences, although unauthorized for not filing the required prior leave of absence, were not "habitual" and "frequent", that her failure to type the drafted order, was committed only once, her absence just to play "mahjong", an isolated case, this investigating Judge finds respondent nevertheless administratively guilty of the above-mentioned infractions. Taking into consideration her plea for understanding and compassion, respondent having practically admitted all her shortcomings, with the promise not to do similar acts again in the future, it is respectfully recommended that respondent be meted out a penalty of suspension for one (1) month without pay, with a stern warning that commission of similar conduct in the future shall be dealt with, more severely.6 (Emphasis supplied) In a Resolution dated May 27, 2002, the Court referred the Report and Recommendation of Judge Alim to the Office of the Court Administrator for evaluation, report and recommendation. 7 In his Memorandum dated October 8, 2002, Deputy Court Administrator Jose P. Perez concurred in the report of the investigating judge, recommending the approval of the findings and recommendation of Judge Alim. We do not entirely agree with the findings and recommendation of the Deputy Court Administrator. 1a\^/phi1.net Respondent had been reprimanded on two occasions. First, she was reprimanded by Clerk of Court Isabel D. Marquez on October 13, 1993 for playing mahjong on a day she absented herself and for submitting her work late and full of errors.8 Second, respondent was reprimanded two years later or on November 6, 1996 by herein complainant Judge for her absences on October 8 to 11, 1996 and October 18, 1996. She failed to present a medical certificate attesting to her alleged sore eyes on October 8 to 11 and also failed to present a certificate of appearance from the court where she was allegedly required to appear on October 18, 1996.9 Circular No. 30-91 which quotes the Resolution of the Court En Banc dated February 26, 1991, provides that: (1) Disciplinary matters involving light offenses as defined under the Civil Service Law (Administrative Code of 1987, and the Code of Conduct and Ethical Standards for Public Officials and Employees (Rep. Act. 6713) where the penalty is reprimand, suspension for not more than thirty days, or a fine not exceeding thirty days salary, and as classified in Civil Service Resolution No. 30, Series of 1989, shall be acted upon by the appropriate supervisory official of the lower court concerned. (2) The appropriate supervisory officials are the Presiding Justices/Presiding Judge of the lower collegiate courts and the Executive Judges of the trial courts with respect to the personnel of their respective courts, except those directly under the individual Justices and Judges, in which case, the latter shall be their appropriate supervisory officials. (Emphasis supplied). Section A, Chapter VII of the 1991 Manual for Clerks of Court, which was in effect when said reprimands on respondent were meted out, provides:

"5. xxx The Clerk of Court initiates investigations of erring personnel and recommends appropriate action to the Executive Judge. (Emphasis supplied). Thus, while it is clear that presiding judges have the authority to act upon disciplinary matters involving light offenses, clerks of court only have the duty to initiate investigations of erring personnel and to recommend appropriate action to the Executive Judge. For this reason, we find the reprimand meted out by Clerk of Court Isabel Marquez dated October 13, 1993 to be improper for lack of authority. This notwithstanding, we find that there is no more need to punish respondent for her misconduct committed ten years ago, in the absence of a showing that she has committed similar offenses after she was given a reprimand by the Clerk of Court, albeit erroneously, for said act. As to the reprimand imposed by complainant Judge on respondent for her absences in 1996, we find this to be in order only with respect to the October 18, 1996 incident. As to her sick leave of absence on October 8 and 11, 1996 because of sore eyes, a medical certificate is not necessary in case of sick leave of absence for less than five succeeding days. 10 At any rate, considering that respondent had already been reprimanded by complainant Judge, it would not be appropriate that she be penalized anew for the same acts.11 Hence, there are only two charges against respondent left for resolution of the Court: first, respondents failure to type a draft order she was tasked by complainant Judge to accomplish on November 4, 1998 and second, her alleged unauthorized absences from November 4 to 6, 1998. As correctly observed by the investigating judge and the Court Administrator, respondent committed a simple neglect of duty in failing to type a draft order which Judge Aquino asked her to finish. We have stated that simple neglect of duty signifies a disregard of a duty resulting from carelessness or indifference. 12 It is considered a less grave offense under Sec. 23 of the Omnibus Civil Service Rules and Regulations Implementing Book V of Executive Order No. 292 for which a penalty of suspension for one month and one day to six months shall be imposed for the first offense and dismissal for the second offense. Considering, however, her admission and plea for compassion with a promise not to commit the same acts in the future, a lighter penalty than suspension for one month and one day on respondent would suffice in this case. Judge Aquino in his complaint, avers: "Per verification from the Courts Clerk of Court, Ms. Fernandez did not file any prior leave of absence for November 4 to 6, 1998 as required by law."13 (Emphasis supplied) We note that the complaint does not indicate whether the absence of respondent on said dates was meant to be a vacation or due to illness. In either case, the governing rules are found in Rule XVI of the Omnibus Civil Service Rules and Regulations, to wit: Sec. 49. Period within which to act on leave application. - Whenever the application for leave of absence, including terminal leave, is not acted upon by the head of agency or his duly authorized representative within five (5) working days after receipt thereof, the application for leave of absence shall be deemed approved. Sec. 50. Effect of unauthorized leave. - An official/employee who is absent without approved leave shall not be entitled to receive his salary corresponding to the period of his unauthorized leave of absence. It is understood, however, that his absence shall no longer be deducted from his accumulated leave credits, if there is any. (Emphasis supplied). Sec. 51. Application for vacation leave. - All applications for vacation leave of absence for one (1) full day or more shall be submitted on the prescribed form for action by the proper head of agency five (5) days in advance, whenever possible, of the effective date of such leave. (Emphasis supplied). Sec. 52. Approval of vacation leave. - Leave of absence for any reason other than illness of an official or employee or of any member of his immediate family must be contigent upon the needs of the service. Hence the grant of vacation leave shall be at the discretion of the head of department/agency. Sec. 53. Application for sick leave. - All application for sick leave of absence for one full day or more shall be made on the prescribed form and shall be filed immediately upon employees return from such leave. Notice of absence, however should be sent to the immediate supervisor and/or to the agency head. Application for sick leave in excess of five (5) successive days shall be accompanied by a proper medical certificate. Sick leave may be applied for in advance in cases where the official or employee will undergo medical examination or operation or advised to rest in view of ill health duly supported by a medical certificate.

An ordinary application for sick leave already taken not exceeding five days, the head of department or agency concerned may duly determine whether or not granting of sick leave is proper under the circumstances. In case of doubt, a medical certificate may be required. Sec. 54. Approval of sick leave. - Sick leave shall be granted only on account of sickness or disability on the part of the employee concerned or of any member of his immediate family. Based on Section 51, as quoted above, whether or not an application for vacation leave is filed five days in advance, the head of the agency, in this case herein complainant Judge, has the discretion to approve or disapprove the application. The reason for the requirement that employees applying for vacation leave, whenever possible, must submit in advance their applications for vacation leave, is to enable heads of offices to make the necessary adjustments in the work assignments among the staff so that work may not be hampered or paralyzed. 14 However, it is clear from the abovequoted rules that mere failure to file a leave of absence in advance does not ipso facto render an employee administratively liable. In case the application for vacation leave of absence is filed after the employee reports back to work but disapproved by the head of the agency, then, under Section 50 as quoted above, the employee shall not be entitled to receive his salary corresponding to the period of his unauthorized leave of absence. The unauthorized leave of absence becomes punishable only if the absence is frequent or habitual under Section 23 (q), Rule XIV of the Omnibus Civil Service Rules and Regulations or detrimental to the service under Section 23 (r) or the official or employee falsified his daily time record under Section 23 (a) or (f) of the same Omnibus Civil Service Rules. In this case, complainant Judge merely alleged that respondent did not file any prior leave of absence. This, we find insufficient to discipline respondent. There is no claim or evidence showing that respondent did not file her leave of absence after reporting for work, or that complainant Judge disapproved her leave of absence, or that her absence was inimical to the interest of public service, or that she falsified her daily time record to cover up her absence. Moreover, the absences of respondent occurred two years apart which can hardly be categorized as frequent or habitual. Sections 53 and 54 provide for the action to be taken by the agency head in case of application for sick leave. In the present case, it does not appear in the complaint that the absence of herein respondent was due to illness. Nonetheless, it is well to remind respondent that public office is a public trust. The conduct and behavior of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, is circumscribed with the heavy burden of responsibility. 15 As a court employee, it is incumbent upon her to dispose of her duties with utmost responsibility and efficiency. 16 Public officers must be accountable to the people at all times and serve them with the utmost degree of responsibility, integrity, loyalty and efficiency. Indeed, any act which falls short of the exacting standards for public office, especially on the part of those expected to preserve the image of the judiciary, or which diminishes or tends to diminish the faith of the people in the Judiciary, shall not be countenanced. 17 This is because the image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to the lowest of its personnel; hence, it becomes the imperative and sacred duty of each and everyone in the court to maintain its good name and standing as a true temple of justice." 18 In sum, we find respondent guilty for simple neglect of duty only for failing to type a draft order. While said offense carries a penalty of one month and one day to six months suspension for the first offense, we take note of her candid admission of her faults and her sincere promise to improve her ways. She explains that she was remiss in her duties because of personal problems that clouded her mind. As aptly observed by DCA Perez, "[h]er admission, repentance and sincere promise to reform her life are good signs that she is indeed remorseful for what she did." 19 These circumstances mitigate respondents liability. While this Court is duty-bound to sternly wield a corrective hand to discipline its errant employees and to weed out those who are undesirable, this Court also has the discretion to temper the harshness of its judgment with mercy.20 Pursuant to Section 19, Rule XIV of the Omnibus Civil Service Rules and Regulations 21 a fine of P2,000.00 in stead of suspension for one month is just and reasonable. WHEREFORE, we find respondent Jocelyn C. Fernandez, Stenographer I, Municipal Trial Court, Caba, La Union GUILTY of simple neglect of duty. She is FINED the amount of Two Thousand Pesos (P2,000.00) with a STERN WARNING that a repetition of the same or similar offenses in the future shall be dealt with more severely. Let a copy of herein Resolution be attached to the 201 file of respondent. SO ORDERED. Footnotes
10

Section 53, Omnibus Civil Service Rules and Regulations, provides:

Sec. 53. Application for sick leave. All applications for sick leave of absence for one full day or more shall be made on the prescribed form and shall be filed immediately upon employees return from such leave. Notice of absence, however should be sent to the immediate supervisor and/or to the agency head. Application for sick leave in excess of five (5) successive days shall be accompanied by a proper medical certificate. (Emphasis supplied).

G.R. No. 147009

March 11, 2004

CIVIL SERVICE COMMISSION, petitioner, vs. COURT OF APPEALS (FORMER SECOND DIVISION) and NEOLITO DUMLAO, respondents.

AZCUNA, J.: The Civil Service Commission (CSC), through the Office of the Solicitor General, brings before the Court the issue of regularity of the CSCs institution of disciplinary administrative proceedings against an erring civil servant on the basis of an anonymous letter-complaint. This is a petition for review on certiorari filed under Rule 45 of the Rules of Court which seeks a reversal of the Court of Appeals Decision1 dated October 30, 2000 and Resolution2 dated February 6, 2001 in CA G.R. SP No. 56098. The facts of the case are as follows:3 On February 4, 1997, the CSC received an anonymous letter-complaint against Neolito Dumlao (Dumlao), a Department of Education Culture and Sports Supervisor of Binalonan, Pangasinan. The letter-complaint contained allegations that Dumlao: 1) never received a college degree; 2) never received a Master of Arts degree in English; and 3) has many pending criminal cases. On March 13, 1997, the CSC requested Director Antonio R. Madarang to look into these allegations and, if necessary, conduct an investigation. On August 4, 1997, Madarang submitted his Report of Investigation stating that Dumlao failed to finish his four-year Liberal Arts Course. On August 7, 1997, the CSC wrote to the Commission on Higher Education (CHED) to verify the educational attainment of Dumlao. On September 15, 1997, the CHED confirmed that Dumlao did not finish his four-year Liberal Arts Course from the University of Pangasinan. On September 18, 1997, the CSC formally charged Dumlao with Dishonesty and Falsification of Official Document. 4 After receiving Dumlaos Answer, the CSC conducted formal hearings wherein both parties presented testimonial and documentary evidence. On May 21, 1999, the CSC issued Resolution No. 99-1056 finding Dumlao guilty under the administrative charge and ordered his dismissal from the service. 5 Dumlao filed a motion for reconsideration but it was denied on October 27, 1999.6 Dumlao elevated the matter to the Court of Appeals through a petition for review on certiorari. The Court of Appeals rendered a Decision that granted the petition and set aside the resolution dismissing Dumlao from the service. It ruled that the CSC was without jurisdiction to conduct an investigation and file a formal charge on the basis of a mere anonymous letter-complaint. The relevant portion of the Decision is reproduced below, as follows: 7 Section 46, Chapter 6, Subtitle A, Book V, Executive Order No. 292, otherwise known as the "Administrative Code of 1987", provides: "SEC. 46. Discipline: General Provisions. xxx

(c) Except when initiated by the disciplining authority, no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant." (Italics Ours) Section 48 (1) and (2), of the same Subtitle further provides: "SEC. 48. Procedure in Administrative Cases Against Non-Presidential Appointees . (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person. (2) In the case of a complaint filed by any other person, the complainant shall submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. If a prima facie case exists, he shall notify the respondent in writing, of the charges against the latter, to which shall be attached copies of the complaint, sworn statements and other documents submitted, and the respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writing under oath, together with supporting sworn statements and documents, in which he shall indicate whether or not he elects a formal investigation if his answer is not considered satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss the case." (Underscoring Ours). On the other hand, Section 8, Rule II of Resolution No. 99-1936, otherwise known as the "Uniform Rules on Administrative Cases in the Civil Service", provides: "SEC. 8. Complaint. A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complainant need not be under oath. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegations therein or supported by documentary or direct evidence, in which the person complained of may be required to comment. The complaint should be written in a clear, simple and concise language and in a systematic manner as to appraise the civil servant concerned of the nature and cause of the accusation against him and to enable him to intelligently prepare his defense or answer. The complaint shall contain the following: a. full name and address of the complainant; b. full name and address of the person complained of as well as his position and office of employment; c. a narration of the relevant and material facts which shows the acts or omissions allegedly committed by the civil servant; d. certified true copies of documentary evidence and affidavits of his witnesses, if any; and e. certification or statement of non-forum shopping. In the absence of any one of the aforementioned requirements, the complaint shall be dismissed." As may be observed, while E.O. No. 292 is silent as to anonymous complaints, Resolution No. 99-1936 provides for cognizance of such complaints in two (2) instances, to wit: (a) there is obvious truth or merit to the allegations therein, and (b) they are supported by documentary or direct evidence. It may be recalled that E.O. 292 was promulgated by former President Corazon C. Aquino on 25 July 1987, pursuant to Section 6, Article XVII of the 1987 Constitution (Transitory Provisions) which reads: "SEC. 6. The Incumbent President shall continue to exercise legislative powers until the first Congress is convened" On the other hand, resolution No. 99-1936 was promulgated by the Civil Service Commission pursuant to the power vested upon it under Section 12 (2), Chapter 3, title I, Subtitle (A), Book V of E.O. No. 292 which reads:

"SEC. 12. Powers and Functions. The Commission shall have the following powers and functions: xxx (2) Prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws: x x x" May the Civil Service Commission arrogate upon itself to provide something which the Administrative Code of 1987 did not provide for? We rule in the negative. Administrative rules and regulations are intended to carry out, not supplant or modify, the law. With this, We cannot but hold with disapprobation the pertinent provision, viz., the second paragraph of Section 8 of Resolution No. 99-1936. Where the law makes no distinction, one does not distinguish. Does this affect jurisdiction? xxxxxx In Our considered opinion, what is contemplated under Sections 46 and 48 aforecited, is the initiation of a complaint against a civil service official or employee, much like the "institution" of a criminal complaint, by filing a complaint for preliminary investigation by the fiscal, which vests the fiscal with the quasi-judicial discretion to determine whether to file a criminal case in court. In the case at bar, the CSCRO was without jurisdiction to conduct a preliminary investigation on the anonymous complaint. May the CSCRO then file a formal charge against petition? We rule in the negative. The complaint is dismissible at the outset. Section 48 (2), Chapter 6, Subtitle A, Book V of E.O. No. 292 provides: xxx (2) In the case of a complaint filed by any other person, the complainant shall submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case" (Underscoring Ours). Section 8, Rule II of the Uniform Rules on Administrative Cases in the Civil Service, provides: x x x "SEC. 8. Complaint. x x x. xxx The complaint shall contain the following: xxx d. certified true copies of documentary evidence and affidavits of his witnesses, if any; and e. certification or statement of non-forum shopping. In the absence of any one of the aforementioned requirements, the complaint shall be dismissed." (Underscoring Ours) The employment of the word "shall" connotes a mandatory character. A formal charge may only be filed upon establishment of a prima facie case. A prima facie case must be found to exist on the basis of sworn statements of the complaint and his witnesses, and certified true copies of documentary evidence. Absent these, the complaint shall be dismissed. Corollarily, a formal charge is not in order. In short, the Court of Appeals deemed the anonymous letter as a complaint which failed to comply with the formal requirements of the law. The CSC filed a motion for reconsideration but it was subsequently denied in the assailed Resolution. Hence, this petition. The CSC assigns two errors:

1. The Court of Appeals erred in ruling that the CSC Regional Office was without jurisdiction to conduct an investigation on the anonymous complaint. 2. The Court of Appeals erred in ruling that the CSC Regional Office cannot file a formal complaint against Dumlao on the basis of an anonymous complaint. The petition is meritorious. The Court of Appeals gravely erred in considering the letter-complaint as the complaint referred to in Executive Order (E.O.) No. 292 and the Uniform Rules on Administrative Cases in the Civil Service. A plain reading therein readily shows that the "complaint" under said statute and rules both refer to the actual charge to which the person complained of is required to answer and indicate whether or not he elects a formal investigation should his answer be deemed not satisfactory.8 In contrast, the letter-complaint in issue simply contained the following averments: 9 1. A department of Education Culture and Sports, Supervisor based in Binalonan is an undergraduate. He never had a college degree. His name is Neolito Dumlao, presently assigned as supervisor based in Binalonan, Pangasinan. He claims to have finished his college degree in U Pang., short for University of Pangasinan in Dagupan City. xxx. A check with the registrar office will shock you. 2. Dumlao also claims to have taken his M.A. in English at the Zaragoza College of Tayug, Pangasinan. Check that one too and you will be surprised. 3. He also has many pending cases in court; all criminal cases that includes forgery, falsification of public documents, and estafa As can be seen from the bare contents of the anonymous letter, it was not a complaint within the purview Section 8, Rule II of the Uniform Rules on Administrative Cases in the Civil Service which requires, among others, the full name and address of the complainant and of the person complained of, a narration of the relevant and material facts, and certification of non-forum shopping. Neither did it, by itself, commence administrative proceedings, requiring an answer from Dumlao described under Section 48 (2) of E.O. No. 292, but merely triggered an investigation by the CSC. Indeed, the letter-complaint is just a plain and simple letter. It was merely a communication sent to the CSC Regional Office to call its attention to the educational background of Dumlao that is not different from an information or tip given by telephone to the Regional Office. To say that the CSC cannot act upon the information because it was from an anonymous caller, or in this case an anonymous writer, would result in an absurd and restrictive interpretation of E.O. 292 and effectively deprive the Government of its disciplining power over people who hold a public trust. In David v. Villegas,10 a case cited by the CSC, private respondent therein Padlan charged petitioner David before the Office of the Mayor with "brazen dishonesty." The Mayor issued a memorandum to David ordering him to explain within seventy-two hours why no administrative action should be taken against him. Not satisfied with the explanation, the Mayor ordered the matter investigated and the case was docketed as an administrative case. Among the issues that reached the Court was Davids argument that Padlans complaint was not subscribed and sworn to in accordance with Republic Act No. 2260, which provides that no complaint against a civil servant shall be given due course unless the same is in writing and subscribed to by the complainant. The Court therein ruled that it was the Mayor who filed the complaint which, consequently, need not be subscribed and sworn to: The petitioner-appellant contends that Administrative Case No. 22, Series of 1970, filed against him is not valid because the letter-complaint of Atty. Jovita Padlan is not sworn to by her. x x x It appears, however, that Mayor Antonio J. Villegas himself filed the administrative charge against the petitioner motu proprio. Hence, the complaint need not be subscribed and sworn to. And even assuming that Mayor Villegas based his memorandum of April 10, 1970 on the letter-complaint of Atty. Padlan, the Mayor as the head or chief of the office may, in his discretion, take action thereon if public interest or the special circumstances of the case warrant. Following this ruling, the Court of Appeals erred in not holding that the complaint against Dumlao was initiated by the CSC itself. Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. As regards the actual guilt of Dumlao, the Court notes that while the petition filed before the Court of Appeals raised both questions of law and fact, the appellate court limited itself to ruling only on the question of law and refrained from making

a ruling on the facts. The Court, not being a trier of facts, is not in a position to determine whether the facts presented warrant a finding of guilt against Dumlao.11 Consequently, this case is remanded to the Court of Appeals for further proceedings solely to determine the sufficiency of the evidence against Dumlao. WHEREFORE, in view of the foregoing, the petition is GRANTED and the assailed Decision and Resolution of the Court of Appeals in CA-G.R. No. 56098 are REVERSED. The case is remanded to the Court of Appeals for further proceedings in consonance with this decision. No pronouncement as to costs. SO ORDERED.

A.M. No. P-05-2069 October 13, 2005 [Formerly OCA I.P.I. No. 03-1734-P] P/CAPT. ROMEO M. DE GUZMAN, Complainant, vs. MARIPI A. APOLONIO, COURT STENOGRAPHER, MTCC-Branch 2, Santiago City, Respondent. Tinga, J.: In a Complaint1 dated 25 July 2003, P/Capt. Romeo M. de Guzman (De Guzman), Chief of Criminal Investigation and Detection Group (CIDG) of Santiago City, Isabela, alleges that a Criminal Complaint2 for violation of Republic Act No. 30193 (R.A. 3019) had been filed against Maripi A. Apolonio (Maripi). In view of this, De Guzman prays that Maripi be placed under preventive suspension. The Criminal Complaint states in part: That on or about 11:00 oclock in the morning of July 17, 2003, at Santiago City, Philippines and within the preliminary jurisdiction of this Honorable Office, said accused being a public official or employee did then and there wilfully, unlawfully and feloneously [sic] demanded a cash amount of One Hundred Twenty Thousand Pesos (Php 120,000.00) however, it was reduced to Sixty Thousand Pesos (Php 60,000.00) which she (respondent) directly accepted/received from the complainant, ESPERANZA SAMONTE-SALANGA the supposed amount in a form of a boodle money with four (4) pieces of genuine marked money bearing serial numbers LN927865, CW459149, GZ675765 & DJ082560 during the entrapment operation conducted by the CIDG Santiago City who made the apprehension of the respondent, MARIFE [sic] APOLONIO to the damage and prejudice of herein complainant in the aformentioned [sic] amount. Contrary to law.4 However, the First Assistant City Prosecutor (the prosecutor), found no sufficient evidence to warrant the indictment of Maripi for violation of R.A. 3019. In a Resolution5 dated 3 September 2003, he downgraded the charge to estafa. Hence, an Information6 for estafa was thereafter filed against Maripi. The CIDG filed an Appeal7 of the prosecutors Resolution with the Regional Prosecution Office of Tuguegarao City. Said appeal which was forwarded to the Department of Justice (DOJ), is still pending disposition before it. 8 In her Comment9 dated 17 October 2003, Maripi vehemently denies the charges against her. She claims that the money she allegedly received during the entrapment operation from her niece Esperanza Samonte-Salanga (Esperanza) was for the payment of the premium for the surety bond of the latters brother, Jomel Samonte (Jomel). Jomel had been detained by the Philippine National Police (PNP) on drug charges. Maripi avers that Esperanza did not know of the plan to raise money for Jomels surety bond and mistakenly believed that the money was to be used for extortion. Earlier, Lucia Samonte (Lucia), Esperanzas mother and Maripis sister-in-law, allegedly approached Maripi for advice on what the former can do to secure the release of Jomel. Maripi initially approached the PNP investigator to ascertain the nature of the charges against her nephew Jomel. Subsequently, she and Lucia went to the Office of the City Prosecutor to inquire about the possibility of posting bail for Jomel. Prosecutor Lucky M. Damasena said that he would recommend P120,000.00 bail bond for each case or a total of P360,000.00. Maripi then recommended that Lucia raise the money needed for the premium of the surety bond.

Thereafter, Maripi and Lucia agreed to meet on a certain day to go to the Office of the City Prosecutor and talk to an insurance agent who will issue the surety bond. On the appointed day, Esperanza came to know about the money because Lucia had asked her to deliver it to respondent. Thinking that the money would be used for extortion, Esperanza went to the CIDG of Santiago City and an entrapment operation was arranged for the arrest of respondent. Forming part of the records of the instant case are: (1) an unsigned letter dated 20 July 2003, of a "Concerned Citizen of Santiago City" providing the Court a copy of the newspaper account of the entrapment operation conducted against respondent;10 (2) an unverified letter-complaint dated 21 July 2003, of Jun Samonte together with "Concerned Citizens" Conching Saggala, Endong Samonte, Maritess Corpuz and Nanette Medina relative to the incident subject of De Guzmans complaint against respondent, expressing their fear of a whitewash considering respondents association with the prosecutors and the judge handling the criminal case against her; 11and (3) a letter dated 31 July 2003, of Jun Samonte informing the Court of the alleged involvement of the Office of the City Prosecutor of Santiago City in the pay-off/fiasco and expressing his fears that respondent will not be criminally charged due to the prosecutors involvement in the incident.12 It is likewise worth noting that: (1) In Judge Albano-Madrid v. Maripi Apolonio et al.,13 respondent Maripi was found guilty of gambling during office hours and was suspended from office for one month and one day without pay with a stern warning that a repetition of the same or similar act of misconduct will be dealt with more severely; (2) OCA IPI No. 031722 entitled Paul Duque v. Maripi Apolonio et al., has been referred for Investigation, Report and Recommendation to Executive Judge Fe Madrid per Resolution dated 11 October 2004 of the Second Division of the Court; and (3) A.M. No. P05-1958 (formerly OCA IPI No. P-04-1771/OCA IPI No. 03-1618-P) entitled Atty. Pacifico Capuchino v. Maripi Apolonio, et al., for "Grave Misconduct and Violation of R.A. 4200 Anti-Wiretapping Law, " is pending resolution before the Court. The Office of the Court Administrator (OCA) in its report 14 dated 29 July 2005, held that the information at hand is sufficient to hold respondent liable for gross misconduct. It found that there is strong and incontrovertible evidence of Maripis active involvement in procuring the release of her nephew who was detained on drug charges. The OCA thought it improper for Maripi to make personal inquiries with the PNP and the Office of the City Prosecutor regarding her nephews cases. The OCA also observed it highly irregular for Maripi to make arrangements for securing a surety bond in the city prosecutors office. Likewise reprehensible is the fact that all this was done on official time. The OCA declared that respondents actuations compromised the integrity of the judiciary in the eyes of the public. Hence, the OCA recommended that Maripi be placed under preventive suspension pending the final outcome of the resolution of the criminal case against her or until further orders from the Court. It also recommended that the instant administrative proceedings be held in abeyance to await the outcome of said criminal case. The OCAs recommendation is well-taken. Section 19, Rule II of the Uniform Rules on Administrative Cases in the Civil Service 15 empowers the proper disciplining authority to issue upon petition of the complainant or motu proprio, an order of preventive suspension to any subordinate officer or employee pending investigation if the charge involves, among others, grave misconduct. Said provision reads in full, to wit: SEC. 19. Preventive Suspension.- Upon petition of the complainant or motu proprio, the proper disciplining authority may issue an order of preventive suspension upon service of the Formal Charge, or immediately thereafter to any subordinate officer or employee under his authority pending investigation, if the charge involves: a. dishonesty; b. oppression; c. grave misconduct; d. neglect in the performance of duty; or e. if there are reasons to believe that the respondent is guilty of the charges which would warrant his removal from the service. An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his misfeasance or malfeasance and to preclude the possibility of exerting undue influence or pressure on the witnesses against him or tampering of documentary evidence on file with his Office. In lieu of preventive suspension, for the same purpose, the proper disciplining authority or head of office, may reassign respondent to other unit of the agency during the formal hearings.

The Supreme Court is given by the Constitution the exclusive power over the discipline of lower court judges and court personnel.16 As the charge embodied in the Complaint constitutes either dishonesty or grave misconduct, the Supreme Court as the proper disciplining authority may motu proprio or at the complainants behest as in the case at bar, issue an order placing respondent under preventive suspension. Under the circumstances, the Court believes that an order of preventive suspension is warranted. It is worth reiterating that preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. 17 Finally, the Court confirms the need to hold the instant administrative proceedings in abeyance pending the outcome of the criminal case filed against Maripi. The disposition of the criminal case will provide basis for determining the administrative liability of respondent. WHEREFORE, respondent Court Stenographer Maripi A. Apolonio is hereby PREVENTIVELY SUSPENDED for ninety (90) days from notice pursuant to Section 20 of the Uniform Rules on Administrative Cases in the Civil Service. The instant administrative case is HELD IN ABEYANCE to await the outcome of the criminal case. SO ORDERED.

G.R. No. L-22754

December 31, 1965

RUBEN A. VILLALUZ, petitioner, vs. CALIXTO ZALDIVAR, ET AL., respondents. BAUTISTA ANGELO, J.: Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment of back salaries in a petition filed before this Court on April 1, 1964. He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter his nomination was confirmed by the Commission on Appointments; that on May 26, 1958 he took his oath of office as such after having been informed of his nomination by then Acting Assistant Executive Secretary Sofronio C. Quimson; that in a letter dated January 28, 1960 addressed to the President of the Philippines by Congressman Joaquin R. Roces as Chairman of the Committee on Good Government of the House of Representatives, the latter informed the former of the findings made by his Committee concerning alleged gross mismanagement and inefficiency committed by petitioner in the Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice in office resulting in huge losses to the government; (2) failure to correct inadequate controls or intentional toleration of the same, facilitating thereby the commission of graft and corruption; and (3) negligence to remedy unsatisfactory accounting; that as a result of said findings. Congressman Roces recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief who may be appointed thereafter; that having been officially informed of the content of said letter, then Secretary of Public Works and Communications furnished petitioner with a copy thereof requiring him to explain within 72 hours why no administrative action should be taken against him relative to the charges contained in the letter; that petitioner answered the letter as required wherein he explained and refuted in detail each and everyone of the charges contained in the letter of Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an investigating committee with the only purpose of investigating the charges against petitioner and his assistant Aurelio de Leon, and to undertake the investigation a prosecution panel was created headed by Special Prosecutor Emilio A. Gancayco; that after the investigation said committee submitted its report to the President of the Philippines who thereafter issued Administrative Order No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been officially notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement, and when this was denied, he filed the instant petition before this Court. Respondents in their answer denied the claim of petitioner that the charges contained in the letter of Congressman Roces were not directed against him but against his office in general for the truth is that he was, specifically charged with mismanagement, gross inefficiency and negligence in the performance of his duties as Chief of the Motor Vehicles Office, and as a result he was required to the same within 72 hours to explain why no disciplinary action should be taken against him. Respondents also denied that petitioner was investigated without being accorded due process is required by law for in fact he was given every reasonable opportunity to present his defense, to secure the attendance of witnesses, and to produce documents in his behalf in a manner consistent with administrative due process. Respondent also averred that the President of the Philippines, contrary to petitioner's claim, has jurisdiction to investigate and remove him since he is a presidential appointee who belongs to the non-competitive or unclassified service under Section 5 of Republic Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in effect a valid administrative complaint because it contained specific charges which constitute just causes for his suspension and removal; that said charges need not be sworn to for the Chief Executive, as administrative head of petitioner, is empowered to commence

administrative proceedings motu proprio pursuant to Executive Order No. 370, series of 1941, without need of any previous verified complaint. And as special defense respondents averred that petitioner is guilty of laches for having allowed almost four years before instituting the present action. There is merit in the claim that petitioner, being a presidential appointee, belongs to the non-competitive or unclassified service of the government and is such he can only be investigated and removed from office after due hearing the President of the Philippines under the principle that "the power to remove is inherent in the power to appoint" as can be clearly implied from Section 5 of Republic Act No. 2260. Such is what we ruled in the recent case of Ang-Angco wherein on this point we said: There is some point in the argument that the power of control of the President may extend to the power to investigate, suspend or remove officers and employees who belong to the executive department if they are presidential appointees or do not belong to the classified service for such can be justified under the principle that the power to remove is inherent in the power to appoint (Lacson v. Romero, supra), but not with regard to those officers or employees who belong, to the classified service for as to them that inherent power cannot be exercised. This is in line with the provision of our Constitution which says that the "Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the head of departments" (Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo, et al., L-17169, November 30, 1963). Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of Civil Service is without jurisdiction to hear and decide the administrative charges filed against petitioner because the authority of said Commissioner to pass upon questions of suspension, separation, or removal can only be exercised with reference to permanent officials and employees in the classified service to which classification petitioner does not belong. This is also what we said in the Ang-Angco case when, in interpreting Section 16 (i) of Republic Act No. 2260, we emphasized that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service. There is, therefore, no error of procedure committed by respondents insofar as the investigation and disciplinary action taken against petitioner is concerned, even if he is under the control and supervision of the Department of Public Works, in view of the reason we have already stated that he is a presidential appointee who comes exclusively under the jurisdiction of the President. The following rationale supports this view: Let us now take up the power of control given to the President by the Constitution over all officers and employees in the executive departments which is now involved by respondent as justification to override the specific provisions of the Civil Service Act. This power of control is couched in general terms for it does not set in specific manner its extent and scope. Yes, this Court in the case of Hebron v. Reyes, supra, occasion to interpret the extent of such power to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter," to distinguish it from the power of general supervision over municipal government, but the decision does not go to the extent of including the power to remove an officer or employee in the executive department. Apparently, the power merely applies to the exercise of control over the acts of the subordinate and not over the actor or agent himself of the act. It only means that the President may set aside the judgment or action taken by a subordinate in the performance of his duties. That meaning is also the meaning given to the word "control" as used in administrative law. Thus, the Department Head pursuant to Section 79 (c) is given direct control of all bureaus and offices under his department by virtue of which he may "repeal or modify decisions of the chiefs of said bureaus or offices," and under Section 74 of the same Code, the President's control over the executive department only refers to matters of general policy. The term "policy" means a settled or definite course or method adopted and followed by a government, body or individual, and it cannot be said that the removal of an inferior officer comes within the meaning of control over a specific policy of government. (Ang-Angco v. Castillo, et al., supra) With regard to the claim that the administrative proceedings conducted against petitioner which led to his separation are illegal simply because the charges preferred against him by Congressman Roces were not sworn to as required by Section 72 of Republic Act No. 2260, this much we can say: said proceedings having been commenced against petitioner upon the authority of the Chief Executive who was his immediate administrative head, the same may be commenced by him motu proprio without previous verified complaint pursuant to Executive Order No. 370, series of 1941, the pertinent provisions of which are is follows: (1) Administrative proceedings may be commenced a government officer or employee by the head or chief of the bureau or office concerned motu proprio or upon complaint of any person which shall be subscribed under oath by the complainant: Provided, That if a complaint is not or cannot be sworn to by the complainant, the head or chief of the bureau or office concerned may in his discretion, take action thereon if the public interest or the special circumstances of the case, so warrant.1

Finally, on the theory that the instant petition partakes of the nature of quo warranto which seeks petitioners reinstatement to his former position as Administrator of the Motor Vehicles Office, we are of the opinion that it has now no legal raison d'etre for having been filed more than one year after its cause of action had accrued. As this Court has aptly said: "a delay of slightly over one (1) year was considered sufficient ... to be an action for mandamus, by reason of laches or abandonment of office. We see no reason to depart from said view in the present case, petitioner herein having allowed about a year and a half to elapse before seeking reinstatement." (Jose V. Lacson, et al., L-10177, May 17, 1957). WHEREFORE, petition is denied. No costs.

G.R. No. 155620. August 9, 2005 PRUDENCIO QUIMBO, Petitioners, vs. ACTING OMBUDSMAN MARGARITO GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE OMBUDSMAN OFFICE, Respondent. CARPIO-MORALES, J.: Culled from the records of the case are the following facts: Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May 21, 1995 administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by November 28, 1997 Order of the Ombudsman 1 placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, by Order of April 27, 1998,2 lifted petitioners preventive suspension. He was thus thereupon ordered, by Memorandum of June 3, 1998 issued by the OIC Provincial Governor, to resume performing his duties as Provincial Engineer. 3 By Decision of April 5, 2000,4 the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be "suspended from office for a period of eight (8) months without pay, this case being the second commission by him of the same offense."5 The Deputy Ombudsmans recommendation was approved by the Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The appellate court, by Decision of March 1, 2001, 6 modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay. Following the finality of the appellate courts decision, the Office of the Ombudsman, by Order dated June 24, 2002,7 directed the Provincial Governor to implement its decision, as modified by the appellate court. Petitioner filed, however, before the Office of the Ombudsman a Motion for Modification/Reconsideration 8 of its June 24, 2002 Order, calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified "to take into account the period of [his] PREVENTIVE SUSPENSION of TWO (2) MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final penalty imposed." 9 In a similar move, Provincial Governor Milagrosa Tan sent a letter 10 also dated July 23, 2002 to the Ombudsman seeking clarification on the merits of petitioners contention that he should no longer be required to serve the penalty of Two (2) Months suspension without pay, he having priorly served preventive suspension for more than Two (2) Months. By letter dated August 21, 200211 addressed to the Provincial Governor, the Office of the Ombudsman clarified that "preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized." The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter.

Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. By Resolution dated October 2, 2002,12 the Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preventive suspension pending investigation is not a penalty. Hence, the present petition for review on certiorari raising as sole issue whether the appellate court committed reversible error when it dismissed his petition. Petitioner contends in the affirmative, he arguing that the dismissal of his petition is "in violation of the doctrine enunciated in Gloria v. Court of Appeals13 and the rule on equity that a person should not be punished twice nor be made to suffer the suspension penalty after [he] had [served] the same (although in a preventive suspension)."14 The petition fails. Jurisprudential law15 establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. 16 If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. 17 That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied). Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides: SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied). Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law). 18 The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held: Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent "shall be considered as under preventive suspension during the pendency of the appeal in the event he wins." On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. 19 (Emphasis and underscoring supplied). In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension.

En passant, neither may the concept of crediting, in criminal law, preventive imprisonment in the service of a convicts term of imprisonment20 be applied to preventive suspension during investigation in administrative law in the service of a respondents final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. Finally, as shown above, since the law explicitly prescribes the rules on crediting of preventive suspension to the final penalty of suspension, petitioners invocation of equity may not lie. WHEREFORE, the petition is hereby DENIED. SO ORDERED. Footnotes
20

Article 29 of the Revised Penal Code provides:

ART. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders or accused who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: (1) When they are recidivists, or have been convicted previously twice or more times of any crime; and (2) When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (Emphasis supplied).

G.R. No. 140359

June 19, 2000

HERMAN CANIETE and WILFREDO ROSARIO, petitioners, vs. THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondent. KAPUNAN, J.: Petitioners Herman Caniete and Wilfredo Rosario seek the reversal of the Decision, dated 17 June 1999, of the Court of Appeals in CA-G.R. SP No. 46835 and its Resolution, dated 6 October 1999, denying petitioners' motion for reconsideration. Petitioners are public school teachers at the Juan Sumulong High School in Quezon City. For being absent on 20 and 21 September 1990, they were charged by Secretary Isidro Cario, then Secretary of the Department of Education, Culture and Sports, with alleged participation in the mass actions/strikes on said dates. Petitioners were placed under preventive suspension on 21 September 1990. In his decisions, dated 28 May 1991 and 9 July 1992, Secretary Cario found petitioners "guilty as charged" and dismissed them from the service "effective immediately." The said decisions of Secretary Cario, however, were set aside by the Merit Systems Protection Board (MSPB) when the case was brought to it on appeal. The MSPB found that petitioners were guilty only of Gross Violation of Existing Civil Service Law and Rules and suspended them for three (3) months without pay. In its Resolution No. 94-4670, dated 30 August 1994, the Civil Service Commission (CSC) modified the decision of the MSPB. The CSC found that petitioners were only guilty of being absent on 20 and 21 September 1990 without the necessary leave of absence, and not as charged by Secretary Cario of participating in the mass actions/strikes on said

dates. Accordingly, petitioners were meted out the penalty of reprimand. The dispositive portion of the CSC resolution reads: WHEREFORE, foregoing premises considered, the Commission resolves to find Herman P. Caniete and Wilfredo A. Rosario guilty of Violation of Reasonable Office Rules and Regulations. The assailed decision is thus modified as they are hereby meted out the penalty of reprimand. They are automatically reinstated in the service without payment of back salaries. 1 Petitioners moved for a reconsideration of the CSC resolution insofar as it disallowed the payment of their back salaries. The CSC denied their motion for reconsideration. Petitioners then elevated the case to the CA but the latter affirmed the decision of the CSC. In denying petitioners claim for back salaries, the CA cited City Mayor of Zamboanga vs. CA, 2 where this Court held: . . . back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In Sales vs. Mathay, Sr., 129 SCRA 321, this Court held that a postal clerk suspended for six months for gross neglect of duty is not entitled to back salary if he cannot show that his suspension was unjustified or that he is innocent of the charge. Thus, the order of payment of full backwages in this case is without lawful basis. Indeed, to allow private respondent to receive full back salaries would amount to rewarding him for his misdeeds and compensating him for services that were never rendered. 3 Petitioners filed a motion for reconsideration of the above decision but the CA denied the same in its Resolution, dated 6 October 1999. Hence, this appeal. The singular issue that needs to be resolved in this case is whether petitioners, who were earlier dismissed for allegedly participating in mass actions/strikes, are entitled to their back salaries upon their reinstatement after they were found guilty only of violating reasonable office rules and regulations and penalized only with reprimand. The Court finds for the petitioners. As correctly pointed out by petitioners, the ruling in Gloria vs. Court of Appeals 4 is squarely applicable in this case as the facts are substantially the same. In Gloria, the public school teachers therein were either suspended or dismissed for allegedly participating in the strikes sometime in September and October 1990. They were eventually exonerated of said charge and found guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence. Thus, the penalty of dismissal earlier imposed on them was reduced to reprimand and their reinstatement was ordered. Moreover, this Court affirmed the payment of back salaries of said teachers explaining that although "employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent." 5 The pertinent provisions of the Civil Service Law (Book V, Title I, Subtitle A of the Administrative Code) on preventive suspension are as follows: Sec. 47. Disciplinary Jurisdiction. xxx xxx xxx

(2) 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. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. xxx xxx xxx

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. Sec. 51. Preventive Suspension. The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee

involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation . When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. Thus, there are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47[4]). 6 We held in Gloria that the employee who is placed under preventive suspension pending investigation is not entitled to compensation because such suspension "is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation." 7 Upon the other hand, there is right to compensation for preventive suspension pending appeal if the employee is eventually exonerated. This is because "preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. 1awphil Hence, he should be reinstated with full pay for the period of the suspension." 8 The public school teachers in Gloria who were exonerated of the charge against them, i.e., participating in the strike, and found guilty only of violating reasonable office rules and regulations and reprimanded, were held to be entitled to back salaries. We ruled: Private respondents were exonerated of all charges against them for acts connected with the teachers' strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated: With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences. Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. In Jacinto v. Court of Appeals, a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes. 9 Given the substantial factual similarities of this case to Gloria, there is clearly no reason for this Court to rule against the payment of back salaries to herein petitioners. WHEREFORE, the petition is given DUE COURSE. The Decision, dated 7 June 1999, and Resolution, dated 6 October 1999, of the Court of Appeals are REVERSED and SET ASIDE. Respondent DECS is ORDERED to pay petitioners Herman Caniete and Wilfredo Rosario their salaries from the time of their dismissal by the Department of Education, Culture and Sports until their actual reinstatement, for a period not exceeding five years.

SO ORDERED.

ADM. MATTER NO. P-01-1497 (Formerly AM-OCA-IPI-00-837-P)

May 28, 2004

HORACIO B. APUYAN, JR. and ALEXANDER O. EUGENIO, complainants, vs. ALFREDO G. STA. ISABEL, Sheriff IV, Regional Trial Court (Branch 161), Pasig City, respondent. RESOLUTION AUSTRIA-MARTINEZ, J.: Before us is a complaint for Gross Misconduct, Conduct Unbecoming of a Public Official and Graft and Corruption filed by Horacio B. Apuyan, Jr. and Alexander O. Eugenio against Alfredo Sta. Isabel, Sheriff IV, Regional Trial Court, Branch 161, Pasig City (RTC for brevity). The complaint against Sheriff Sta. Isabel was filed before the Office of the Court Administrator (OCA) on February 22, 2000. In compliance with the 1st Indorsement dated March 29, 2000 of the OCA, the respondent filed his Comment on May 4, 2000. Complainants filed their Reply Affidavit on October 27, 2000. Respondent submitted a Rejoinder dated December 3, 2000 denying complainants allegations in the Reply-Affidavit. In our Resolution dated August 20, 2001, 1 we referred the administrative matter to Executive Judge Edwin A. Villasor of the Regional Trial Court, Pasig City, for investigation, report and recommendation. The Executive Judge then conducted several hearings where both parties presented their respective evidence. Witnesses for the complainants were Horacio B. Apuyan, Jr., Alexander O. Eugenio, Atty. Norberto Ortiz Perez, Mario Pangilinan; and Court Stenographer Ramona Teresita Vega, as rebuttal witness. At the hearing held on January 3, 2002, complainant Apuyan, Jr., through counsel, manifested that he is adopting the Joint-Affidavit Complaint2 as his direct testimony wherein it is averred that: complainants are employees of plaintiff corporation in a civil case3 pending before the RTC, docketed as Civil Case No. 67654; that in connection with said case, a writ of attachment was issued by the RTC against the monies and properties of defendants; on February 8, 2000, complainants fetched respondent in his office and together with Process Server Julio Bautista and a certain Rey de Leon, they proceeded to the Western Police District to fetch some police officers to assist them in the implementation of the writ of attachment; respondent started to dictate to complainants that the police officers should receive no less than P1,000.00 each and another P1,000.00 for each mobile car used; they proceeded to the office of defendant corporation and while in said office, respondent told them that he was able to gather information relative to defendants bank account that can be the subject of garnishment; respondent started hinting that the ongoing sheriffs rate in Manila is 5% while it is 3% in Pasig but he is willing to settle for a 0.05% share based on the total amount of P10,000,000.00, that was the subject of attachment; complainant Apuyan called their counsel, Atty. Norberto Ortiz Perez, who requested respondent to immediately garnish said account; respondent replied that he could not do so for he failed to bring with him the necessary papers; Atty. Perez then told respondent to effect garnishment the following morning and assured respondent that he will instruct his client to prepare monetary goodwill for respondent; after levying some properties of defendant, they and the group of respondent proceeded to their (complainants) office where complainant Apuyan handed respondent an envelope containing P2,000.00; when respondent saw the amount, he threw the envelope and cursed them, saying that the amount of P2,000.00 is a big insult to his person; complainant Eugenio tried to pacify respondent who then demanded to see the company president; complainants told respondent that their president is out of the country and explained to him that Atty. Perez promised to give respondent some goodwill money when the garnishment is effected the next day; respondent blurted out that from then on, he would no longer effect the garnishment; the next day, or on February 9, 2000, while complainant Apuyan was waiting for their case to be called in court relative to a hearing of a Motion to Discharge Attachment filed by the defendant, respondent grabbed his collar, uttering, "O, ano ang gusto mong mangyari ngayon? ";4 respondents officemates intervened to avoid further harm and embarrassment to complainant Apuyan; on February 10 and 11, 2000, respondent did not report for work to avoid proceeding with the garnishment; on February 14, 2000, complainant Apuyan and Atty. Perez went to court to file a Motion to Assign a Special Sheriff; while they were waiting along the courts corridor, respondent came out of the staff room and started cursing them and vehemently denying the allegations in their motion; respondent uttered to Atty. Perez, "Ikaw, abogado ka lang, baka hindi mo ako kakilala, hindi ako basta bastang sheriff. Ididimanda kita ng libel, gago. Puwede ako sa physical, puwede ako sa mental. Hindi ko palalagpasin and ginawa ninyo sa aking ito; " thereafter, complainant Apuyan and Atty. Perez obtained a copy of the courts Order granting the assignment of a special sheriff, and pursuant thereto, Sheriff Mario Pangilinan was assigned to their case; on February 15, 2000, however, respondent submitted his Sheriffs Report stating that the writ of attachment was duly satisfied. During cross-examination, complainant Apuyan further testified thus:

Q: After surrendering the equipment here in the Justice Hall in Kapitolyo, where did you go if any? A: Sheriff Sta. Isabel demanded for Fifty Thousand (P50,000.00) Pesos service fee and I told Sheriff Sta. Isabel that we have no money but since you are very persistent on that may we just go to our Office and have a snack and then we could endorse the same with the former Chief Operating Officer. Q: Can you tell this Honorable Court if this demand is made in writing? A: It was not actually made in writing because I think nobody will do it in writing. Actually the very first time that he insisted for Fifty Thousand (P50,000.00) Pesos was before our lunch during the time that the process of attachment was made where Alex approached me together with Sheriff Sta. Isabel informing me that Sheriff Sta. Isabel was able to chance upon an account number, Metro Bank account number of Peoples Trans-East Asia Insurance, Corp. and the money worth Fifty Thousand (P50,000.00) Pesos so while inside the lobby they approached me and so I asked him if it is really true and he said yes, "hawak ko na ang alas alam ko na and bank account number ng Peoples Trans-East but first you have to give me at least .5% of the Ten Million (P10,000,000.00) Pesos so I told him "siguro igarnish muna natin" in a dialect. ......... Q: And is it also true that one of the reasons as stated to you by the Respondent for refusing to issue a notice of garnishment is the possibility of over levy? A: No sir. Q: He did not tell you that? A: No, the very word that he told us is that he will not push through with the garnishment if we will not able to bring out the Fifty Thousand (P50,000.00) Pesos that he demanded from us. Q: Did you pay the Respondent any amount for his services? A: He demanded for the amount and we gave him Two Thousand (P2,000.00) Pesos to make his initial demand from us but instead of taking it, I was insulted, berated and he threw the money on my face. 5 Complainant Alexander Eugenio also adopted the aforementioned Joint Affidavit-Complaint as his direct testimony. On cross-examination, he further testified as follows: A: Actually when this particular incident happened I was standing outside the building when Sheriff Sta. Isabel approached me and told me that he has chanced to see the account no. of Peoples Trans-East Asia Insurance Corporation with the Metrobank. As a matter of fact, he showed me the inside cover of the folder he was holding and he told me this is the account number and he told me in vernacular that "hawak ko na and alas, alam ko na and account number ng Peoples Trans-East Asia sa Metro Bank" and we can garnish the account of Metro Bank with the condition that we should give him the half percent (1/2%) of what we have (sic) claiming after Peoples Trans-East Asia Insurance Corporation which is equivalent to Fifty Thousand (P50,000.00) Pesos and then I told him that I am not in a position to decide on that matter and I suggested to open this up to Mr. Apuyan who is incharge of that activity as far as our companys concerned. ......... Q: Who handed the envelope to Sheriff Sta. Isabel pursuant to this statement? A: It was Mr. Horacio Apuyan who handed the envelope. Q: And it also states here that he threw the envelope, where did he throw the envelope? A: He threw it to Mr. Apuyan, to his face.6 Another witness for complainants, Atty. Norberto Perez, testified as follows: He first came to know respondent when they talked over the phone on February 8, 2000 during the time that the writ of preliminary attachment was being implemented. He had to talk to respondent over the phone because the latter was insinuating that he would not serve the notice of garnishment if he is not paid P50,000.00. He was only able to talk personally to respondent on February 14, 2000 when he was at the corridor in front of Branch 161, RTC, Pasig City and respondent confronted him, shouting at the top of his voice cursing him (Atty. Perez) and complainant Apuyan. Respondent only stopped shouting and cursing when

he was pacified by some BJMP people, police officers and other court personnel who told him to keep quiet because there was a hearing going on.7 Sheriff Mario Pangilinan testified that he was appointed as the special sheriff and proceeded to serve the notice of garnishment of the accounts of defendant corporation on several banks. For his efforts, he received P5,000.00 goodwill money from plaintiff corporation.8 For respondents defense, the testimonies of respondent Alfredo Sta. Isabel himself, Process Server Julio S. Bautista and Atty. Emmanuel R. Jabla were presented. Respondent adopted his Comment dated May 2, 2000 as part of his direct testimony. In his Comment, he contends as follows: The complaint was brought about by a personal grudge between him and complainant Apuyan. He implemented the writ of attachment on February 8, 2000. While in the course of effecting the writ, he talked to Atty. Perez on the phone because the latter wanted him to garnish defendants bank account. He made the excuse that he was not prepared to do so for he did not have a notice of garnishment. He never made mention of any monetary consideration during their phone conversation. He believes that Atty. Perez was not pleased with his response. Thereafter, he and his co-employees proceeded to complainants office upon the latters invitation for snacks. At said office, no snacks were offered, but complainant Apuyan handed him an envelope. His co-employee opened the envelope and showed him that it contained two pieces of P1,000.00 bills. He refused to take the envelope and complainant Apuyan made an outburst, saying "Why do you have to ask me to give you so much money? That is illegal. I know the same fact (sic) because I am a law student! You are very corrupt!".9 The next day, February 9, 2000, he prepared a notice of garnishment but complainants did not come to see him or even call him. On February 10, 2000, complainants went to court but he was then on sick leave. On February 14, 2000, when complainants went to court for the hearing of their Motion for Appointment of Special Sheriff, he confronted Atty. Perez regarding the allegations made in said motion. Atty. Perez said, " Hoy, huwag mo akong questionin, sheriff ka lang at malapit na ang katapusan mo!"10 and a verbal tussle ensued between him and Atty. Perez. At the hearing held on January 18, 2002 before the Executive Judge, respondent denied that he ever touched any of the complainants or their counsel. He insists that only a verbal altercation transpired between them. On cross-examination, however, respondent admitted that on February 9, 2000, complainant Apuyan was there at the staff room of Branch 161, RTC Pasig City, and he even told said complainant to get out of the staff room, contradicting his statement in his Comment that on said date of February 9, 2000, he prepared a notice of garnishment but complainants did not come to see him or even call him.11 Respondent also recounted that at the time they went to complainants office, there was already animosity between him and Mr. Apuyan, but he still acceded to the latters invitation for snacks at their office, with the intention to see Dr. Cenon Alfonso, the company president, supposedly to complain about Apuyans arrogant demeanor. Respondent also admitted that there is a contradiction between his statement in paragraph 22 of his Rejoinder that he was not able to memorize the numerals contained in the account number of defendant corporation and his testimony where he stated that he did, in fact, see and note down the account number and told complainants about it. 12 The next witness for respondent, Process Server Bautista, adopted his Joint Affidavit 13 dated May 3, 2000 as his direct testimony wherein he stated that: he proceeded with respondent and complainants to the office of defendant corporation to effect the writ of attachment; respondent was able to see some checks issued by defendant corporation but respondent stated that he was not able to memorize the account number; complainants wanted respondent to immediately garnish said bank account, and Atty. Norberto Perez even talked to respondent over the phone, but respondent said he could not proceed with the garnishment as he did not have the necessary papers with him; they went to complainants office for snacks and there, complainant Apuyan placed an envelope on top of the table; thereafter, Apuyan returned to where he, respondent, and a certain de Leon were seated and Apuyan started yelling at respondent, calling the latter corrupt; respondent was angered by the accusation; Apuyan then told respondent that if the latter did not want to take it, "Thank You, anyway," then placed the envelope into the pocket of his polo-shirt; respondent never made any demand for money from complainants; that when complainants and Atty. Norberto Perez filed a Motion for the Appointment of Special Sheriff, a verbal tussle occurred between Atty. Perez and respondent; and when they learned that an administrative case had been filed against respondent, he executed the affidavit of his own free will to help respondent. On cross-examination, Process Server Bautista stated that they went to complainants office not mainly because they were invited for snacks but rather, "Hindi ko alam kung kasama na ang snack pero ang alam ko doon mayroong ibang trabahong pag-uusapan kaya nagyaya sila."14 With regard to the confrontation between complainant Apuyan and Atty. Perez on the one hand and respondent on the other, witness Bautista testified thus: Q: Were you present during the altercation between Atty. Perez, Mr. Apuyan and Sheriff Sta. Isabel? A: I was not there sir. .........

Q: You did not see any of the events where there was an altercation among them? A: I was at the Office sir at the session hall because we were having a hearing sir. ......... Q: If you were inside the courtroom at the time that there was an altercation among Sheriff Sta. Isabel, Atty. Perez and Horacio Apuyan how would you able to quote and unquote what was uttered by Atty. Perez? A: "Kasi nasa may pintuan lang ako ng session hall sa tabi ng staff room narinig ko lang parang may malakas na nag-uusap kaya sumilip ako, narinig ko na ung pag-uusap nila yung pangyayari na yun." ......... Q: How long were you peeping at the corridor at the time that there was an altercation among them? A: Noong narinig ko na may malakas na nag-uusap sumilip lang ako tapos pumasok na ako sa staffroom hindi na maganda yung tono ng pag-uusap nila sabi ko tama na yan, alam nyo naman yan Atty. Q: What do you mean by "alam nyo naman yan Atty."? A: "Nandoon po kayo nandoon din po ako sabi ko tama na yan para lang tumigil na dahil naghehearing si Judge Alicia Mario-Co."15 The last witness for respondent, Atty. Emmanuel Jabla, merely stated that he is a retained lawyer of defendant corporation and he knows for a fact that respondent sheriff was actually able to levy on the building and land and some equipment of said defendant; that he warned respondent to refrain from further levying on other properties of defendant because it would be a case of over-levy.16 On rebuttal, complainants presented Court Stenographer Vega who testified that she remembers an incident when respondent grabbed complainant Apuyan, holding the latter by the collar. 17 After the parties presented their respective evidence, Executive Judge Villasor submitted his Report dated March 13, 2002, finding that the details of what transpired at the complainants office on February 8, 2000 and of the incident that happened in the court premises on February 14, 2000 are only based on the self-serving versions of the complainants and respondent sheriff;18 that only the reprehensible conduct of respondent in collaring complainant Apuyan had been established; and recommending that respondent sheriff be fined the amount ofP10,000.00 therefor. The Office of the Court Administrator (OCA) disagrees with the findings and recommendation of Executive Judge Villasor. Based on the evidence presented, it found that respondent really made the demand of 0.05% of the amount to be garnished from the bank account of defendant corporation; that there was a verbal altercation that transpired between respondent and Atty. Perez within the court premises; and that respondent collared complainant Apuyan, on which bases, it recommends the suspension of respondent for one year without pay. After a careful examination of the records, we agree with the findings and recommendation of the OCA, the same being in accord with the evidence presented and the law. We find no cogent reason to disregard the same, except that what is clear on the basis of the testimonies of complainants are that respondent demanded for the payment of P50,000.00, not 0.05% of the P10,000,000.00, subject of the writ of preliminary attachment, or P500,000.00 mentioned by the OCA. We agree with the finding of the OCA that respondents explanations do not inspire belief due to the inconsistencies in his allegations in his pleadings and his testimony and that of his witness, Court Process Server Bautista. We quote and adopt the OCAs dissertation on this matter, to wit: On the other hand, respondent testified that after effecting the writ on February 8, 2002 19 (sic), they went to complainants office upon the latters invitation to have some snacks. However, upon arrival at the office premises, complainant Apuyan left them at the garden and went inside the office. No snacks were offered. Apuyan later came out of the office and placed an envelope on top of a garden table in front of respondent sheriff and went back inside the office. Respondent never touched the envelope. About 20 minutes later, Process Server Bautista opened the envelope despite respondents warning not to touch it, and showed the latter its contents of two P1,000.00 bills then returned it back on the table. Fifteen (15) minutes thereafter, Apuyan came out of the office, went straight at him, hurling invectives and blurting out, " Why do you have to ask me to give you so much money? That is illegal. I know the same act (sic) because I am a law student! You are very corrupt."

However, in the Manifestation with Motion dated 1420 (sic) February 2000 (marked as Exh. A for complainants and Exh. 1 for respondent) filed by respondent, he stated therein: .... 6. That there was no occasion that he had thrown the envelope containing the P2,000.00 as the undersigned place (sic) the same neatly on top of the table and gently pushed it with his fingers towards Mr. Apuyan who in turn placed the same envelope towards the pocket of his polo shirt and said, "THANK YOU, ANYWAY." It is also worthy to note that upon further cross examination, respondent mentioned, for the first time, that when Apuyan laid down the P2,000.00, he conveyed that said amount was for respondent to defray the expenses on the garnishment of Peoples account to be effected the following day (tsn, p. 22, 01 February 2002). However, upon cross-examination, Court Process Server Bautista testified, thus: Q: So it was you who opened the envelope? A: "Noong initcha ni Mr. Apuyan ang envelope sabi niya, Ito para sa inyo ni Sheriff, tapos tumalikod na si Mr. Apuyan sabi ni Sheriff, "Huwag ninyong gagalawin yan hindi natin alam kung ano yan". Ngayon ang ginawa ko sa envelope sinilip ko lang ang laman kung may laman ba o kung anuman yun nakita ko may pera tapos nalingunan ako ni Sheriff Sta. Isabel sabi niya, Sinabi ng huwag ninyong gagalawin yan eh! kaya nilapag ko na po yung envelope". (Underscoring supplied) tsn, p. 50, 06 February 2002 Respondents conflicting versions, thus appear too contrived to inspire belief. The tenor of his allegation sought to establish that Apuyan was angered when respondent refused to accept the offer of P2,000.00. We, however, cannot believe that complainant would strongly react and make such an outburst because of a mere refusal of respondent to accept the goodwill money. Human nature dictates that a person would not be easily infuriated unless provoked. Complainant may have been angered not by the refusal of respondent to accept the envelope but by respondents own outburst upon discovering that the envelope contained only P2,000.00 and his subsequent act of throwing it back at him. At any rate, what is clearly established is the fact that respondent flared up and felt insulted when given the measly sum of P2,000.00 as monetary consideration for the implementation of the writ of attachment on 08 February 2000.21 (Emphasis ours) Respondents claim that complainant Apuyan suddenly made a hostile outburst, accusing him of corruption for expecting more monetary consideration only because he (respondent) refused to accept the goodwill money ofP2,000.00, defies all logical explanation. Human experience tells us that if respondents version of what transpired were correct, then the reaction of the person making such monetary offer to a public official who refused the same would be respect for the latter, instead of derision. We just could not summon ourselves to believe that a sane person would be driven to anger and to making accusations of corruption had there not been any provocation or actuation from respondent that made complainants believe that he is demanding a bigger amount of money. Respondents testimony that his relations with complainant Apuyan had already been strained earlier when they were at defendant corporations office, makes us wonder why respondent still agreed to proceed to complainants office, allegedly for snacks, after having served the writ on defendant. It also puzzles us why respondent and his companions did not just leave complainants office when they were just left by complainants waiting in a garden and no snacks were ever served. In the first place, it is not proper for court employees to go to the office of a litigant to have snacks, even if invited. Respondent testified that after complainant Apuyan presented the envelope to him, some twenty minutes have elapsed before Process Server Bautista peeked into the envelope and only sometime thereafter did complainant Apuyan emerge from the office angrily asking him why he refused to take the money. 22 Such scenario immediately presents to us the nagging questions: why did respondent and his co-employees continue to wait at said office, if indeed they were only invited for a snack? Was respondent expecting something more than the promised snacks from complainants? Why would complainant Apuyan go back to respondent after several minutes asking him angrily why he refused to take the money? All these remained unexplained by respondent. His evidence failed to support his defense of denial. Evidently, respondent went to complainants office expecting remuneration for the implementation of the writ of attachment as he demanded from them. The fact that respondent made demands upon complainants to pay him P50,000.00 on subject of the writ of preliminary attachment, remained unrefuted. In addition to the foregoing, respondent himself admitted his propensity to be inaccurate with his statements. He testified, thus: ATTY. PEREZ:

Mr. witness I just would like to inquire from you whether your Comment that you submitted in this case which is now marked as Exhibit "N" is the factual statements of all that had transpired relative to the accusations filed against you by the Complainants? WITNESS: Some were true facts, however, some sort of my answer I was forming a defense so some may not be that accurate.23 (Emphasis supplied) Thus, the OCA did not commit any error in not giving credence to his testimony. Respondents bare denials of complainants claim that he was demanding P50,000.00 for the implementation of the writ of attachment is insufficient to overcome complainants straightforward, positive and unwavering testimony against him. Moreover, respondent subjected complainant Apuyan and Atty. Perez to physical and verbal abuse in the courtroom premises. Respondents denial in grabbing the collar of complainant Apuyan and in the occurrence of the verbal altercation between him and Atty. Perez are implausible. The evidence on record, especially the testimony of respondents own officemate, Court Stenographer Vega, confirms the fact that indeed, respondent collared complainant Apuyan while the latter was inside the court staffroom on February 9, 2000.24 The fact that respondent engaged in a heated verbal altercation with Atty. Perez on February 14, 2000 is also established by complainants testimonial evidence and the testimony of respondents own witness, Court Process Server Bautista, who said that he had to caution respondent and Atty. Perez against talking in a loud voice because the court was then in session.25 Such actuation, even assuming that complainant Apuyan and Atty. Perez did something to anger respondent, is highly unbecoming of a public servant who is called upon to demonstrate courtesy, civility and self-restraint in their official actuations to the public at all times even when confronted with rudeness and insulting behavior. 26 We definitely cannot tolerate respondents misconduct. We have consistently emphasized that: Time and again, this Court has pointed out the heavy burden and responsibility which court personnel are saddled with in view of their exalted positions as keepers of the public faith. They should therefore be constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. Those who work in the judiciary must adhere to high ethical standards to preserve the courts good name and standing. They should be examples of responsibility, competence and efficiency, and they must discharge their duties with due care and utmost diligence since they are officers of the court and agents of the law. Indeed, any conduct, act or omission on the part of those who would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary shall not be countenanced. 27 In Alvarez, Jr. vs. Martin,28 which is analogous to the present case, we laid out the conduct demanded from a sheriff, thus: Respondent sheriff should have exerted every effort and indeed considered it his bounden duty to see to it that the final stage in the litigation process, i.e., the execution of the judgment is carried out in order to ensure a speedy and efficient administration of justice. . . Furthermore, respondents act of demanding money and receiving P1,500.00 from the complainant for the lunch and merienda of the policemen who will accompany him in executing the decision of the Court is a clear violation of section 9, Rule 141. The Rules require the sheriff to estimate his expenses in the execution of the decision. The prevailing party will then deposit the said amount to the Clerk of Court who will disburse the amount to the sheriff, subject to liquidation. Any unspent amount will have to be returned to the prevailing party. In this case, no estimate of sheriffs expenses was submitted to the court by respondent. In fact, the money which respondent deputy sheriff had demanded and received from complainant was not among those prescribed and authorized by the Rules of Court. This Court has ruled that any amount received by the sheriff in excess of the lawful fees allowed by the Rules of Court is an unlawful exaction and renders him liable for grave misconduct and gross dishonesty. (Emphasis supplied). Finally, the procedure for execution of a final judgment is the same as that in carrying out a writ of preliminary attachment, as set forth in Rule 141 of the Rules of Court, the pertinent provisions of which are as follows: Section 3. Persons authorized to collect legal fees . Except as otherwise provided in this rule, the officers and persons hereinafter mentioned, together with their assistants and deputies, may demand, receive, and take the several fees hereinafter mentioned and allowed for any business by them respectively done by virtue of their

several offices, and no more. All fees so collected shall be forthwith remitted to the Supreme Court. The fees collected shall accrue to the general fund. ... Section 9. Sheriff, and other persons serving processes . ... (l) For money collected by him by order, execution, attachment, or any other processes, judicial or extrajudicial, the following sums, to wit: 1. On the first four thousand (P4,000.00) pesos, five (5%) per centum. 2. On all sums in excess of four thousand (P4,000.00) pesos, two and one-half (2.5%) per centum. In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriffs expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage, for each kilometer of travel, guards fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-officio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriffs expenses shall be taxed as costs against the judgment debtor. (Emphasis supplied) Clearly, in this case, respondent not only utterly failed to live up to the high ethical standards required of a sheriff, but also, he totally ignored Section 9, Rule 141 of the Rules of Court. Respondent failed to demonstrate that he followed the procedure laid down by Rule 141. The OCAs recommendation that respondent be found guilty of grave misconduct, dishonesty and conduct grossly prejudicial to the best interest of the service is firmly supported by the records of this case. Section 23 (a), (c), & (t), Rule XIV of the Omnibus Rules implementing Book V of Executive Order No. 292, provides: Sec. 23. Administrative offenses with its corresponding penalties are classified into grave, less grave, and light, depending on the gravity of its nature and effects of said acts on the government service. The following are grave offenses with its corresponding penalties: (a) Dishonesty 1st offense Dismissal ... (c ) Grave Misconduct 1st offense Dismissal ... (t) Conduct grossly prejudicial to the best interest of the service 1st offense Suspension for six (6) months and one day to one (1) year. 2nd offense Dismissal ...

However, as correctly recommended by the OCA, we shall apply Section 53 of the Revised Uniform Rules on Administrative Cases in the Civil Service which provides that in the determination of the penalties to be imposed, the extenuating, mitigating, aggravating or alternative circumstances may be considered. Per report of the OCA, this is the first time that respondent has ever been charged administratively. Thus, instead of imposing the penalty of dismissal which is the imposable penalty for commission of the first offense of grave misconduct and dishonesty, respondent, as appropriately recommended by the OCA, should be suspended for a period of one year without pay with a stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. WHEREFORE, respondent is found GUILTY of Grave Misconduct, Dishonesty and Conduct Grossly Prejudicial to the Best Interest of the Service. He is SUSPENDED for a period of one (1) year without pay with a STERN WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. Let copy of herein Resolution be attached to the personal records of respondent in the Office of the Administrative Services, Office of the Court Administrator. SO ORDERED.

[G.R. No. L-56028 : July 30, 1981.] NILO A. MALANYAON, Petitioner-Appellant, vs. HON. ESTEBAN M. LISING, as Judge of the CFI of Camarines Sur, Br. VI, and CESARIO GOLETA, as Municipal Treasurer of Bula, Camarines Sur , Respondents-Appellees.

ABAD SANTOS, J.:

The question which is presented to Us for resolution in this petition for review concerns the interpretation of Section 13 of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act which stipulates: Sec. 13. Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. The facts are stated in the Order dated October 3, 1980, of the respondent judge: The late Mayor S.B. Pontanal is one of the accused in Criminal Case No. P-339 for Violation of the Anti-Graft and Corrupt Practices Act. Upon the filing of the case against him in court and after hearing, he was suspended from office and during his incumbency he died. Due to his death the charge against him in Criminal Case No. P-339 was dismissed. Petitioner now contends that any disbursement of funds by the respondent, Cesario Goleta, in his capacity as Municipal Treasurer in favor of the heirs of the late Mayor for salaries corresponding to the period he was under suspension and other benefits will be illegal and contrary to the provisions of Section 13 because said late Mayor S.B. Pontanal was not acquitted of the charge against him. Nilo A. Malanyaon, the petitioner, was formerly a member of the Sangguniang Bayan of Bula, Camarines Sur. He filed an action to declare illegal the disbursement made by Cesario Goleta as Municipal Treasurer of the Municipality of Bula, Camarines Sur, to Venancia Pontanal, widow of the late Mayor S.B. Pontanal, in the amount of P5,000.00 representing a portion of the salary of the late Mayor as such mayor of said municipality during the period of his suspension from August 16, 1977 up to November 28, 1979, and to restrain or prevent respondent Cesario Goleta as such Municipal Treasurer of the aforementioned municipality from further paying or disbursing the balance of the claim. chanroblesvirtualawlibrary(Par. 1 of the Order, supra.) However, the respondent judge dismissed the action on the ground that the criminal case against the late Mayor S.B. Pontanal due to his death amounted to acquittal. We grant the petition and set aside the Order of the court a quo. It is obvious that when the statute speaks of the suspended officer being acquitted it means that after due hearing and consideration of the evidence against him the court is of the opinion that his guilt has not been proved beyond reasonable doubt. Dismissal of the case against the suspended officer will not suffice because dismissal does not amount to acquittal. As aptly stated in People v. Salico, 84 Phil. 722, 732-733[1949]: Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendants guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the proceeding, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court

dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction. Respondents invoke Art. 81, No. 1 of the Revised Penal Code which provides that Death of the accused pending appeal extinguishes his criminal and civil liability. We do not see the relevance of this provision to the case at bar. For one thing the case against Mayor Pontanal was not on appeal but on trial. For another thing the claim for back salaries is neither a criminal nor a civil liability. It is in fact a right provided the conditions of the law are present.:onad WHEREFORE, finding the petition to be well-taken, the same is hereby granted, the order of the court a quo is hereby set aside and another one is entered declaring illegal the payment of municipal funds for the salaries of the late Mayor S.B. Pontanal during his suspension from office and ordering the respondent treasurer to retrieve payments so far disbursed. No pronouncement as to costs. SO ORDERED.

G.R. No. 88177 : December 4, 1990.] 192 SCRA 84 DOLORES A. PAREDES, Petitioner, vs. CIVIL SERVICE COMMISSION AND REMEDIOS A. AMOR, Respondents. [G.R. No. 89530 : December 4, 1990.] 192 SCRA 84 DOLORES A. PAREDES, Petitioner, vs. CIVIL SERVICE COMMISSION, MERIT SYSTEMS PROTECTION BOARD AND REMEDIOS A. AMOR, Respondents.

PARAS, J.:

Submitted for decision are the separate petitions for Certiorari questioning the following resolutions 1 of the public respondent Civil Service Commission, viz: In G.R. No. 88177, petitioner Dolores Paredes assails resolution No. 89-072 dated February 6, 1989, sustaining the decision of the Merit Systems Protection Board (MSPB) directing the revocation of her appointment as HS Project Coordinator in the Housing and Land Use Regulatory Board and declaring the said position vacant. In G.R. No. 89530, petitioner Paredes assails resolution No. 89-276 dated April 27, 1989, affirming the decision of the Merit Systems Protection Board dated April 22, 1988, dismissing all charges against Atty. Remedios A. Amor except habitual tardiness for which the latter was reprimanded and warned that a repetition of the same in the future would be dealt with more severely.:-cralaw The antecedent facts of the case are as follows: Petitioner Paredes entered the government service in July 1950 as a public school teacher. Later she transferred to the General Auditing Office as Auditing Clerk detailed at the Philippine Tobacco Administration. On November 16, 1977, she joined the then Human Settlements Regulatory Commission 2 (HSRC for brevity) as Project Officer II. She was promoted to H.S. Project Officer III on July 1980 then to H.S. Project Officer II on December 1, 1981. On October 1, 1985 she was extended a promotional appointment as H.S. Project Supervisor. On December 30, 1985, private respondent Atty. Remedios A. Amor, H.S. Project Officer IV, contested the promotional appointment of petitioner Paredes as H.S. Project Supervisor, on the ground that she is the qualified next-in-rank pursuant to Section 9 (16) and (20) of P.D. 807 and the Qualification Standards of the HSRC. The case was docketed as HSRC Protest Case No. 86-01. On January 14, 1986, HSRC Commissioner and Chief Executive Officer Ernesto C. Mendiola, rendered a decision dismissing private respondent Amor's protest as it was filed five days beyond the fifteen (15) day reglementary period provided under Section 10 of Rule IV of the Civil Service Rules and Regulations. Commissioner Mendiola stated that (1) the contested appointment dated October 1, 1985 was issued and posted on the Commission's Bulletin Board on November 13, 1985, but private respondent Amor filed her protest only on December 3, 1985; (2) private respondent Amor is not among the top six next-in-rank candidates recommended by the Selection and Promotion Board; and (3) pursuant to Resolution 85-132 dated April 11, 1985 of the Civil Service Commission petitioner Paredes can be extended a promotional appointment as H.S. Project Supervisor because although she is only a holder of a two year Elementary Teachers Certificate her educational deficiency can be substituted with her 31 years of service in the government the greater part of which has been in the supervisory level (Rollo, p. 163).

On January 21, 1986, private respondent appealed the decision of Commissioner Mendiola to the Office of the President. In the First Indorsement dated August 12, 1986, the Office of the President requested public respondent to comment on the appeal pursuant to Section 19(6) of P.D. 807. On September 9, 1987, the MSPB requested the Office of the President to forward the record of the case to the former pursuant to the provisions of Executive Order 135 dated February 27, 1987, which repealed Memorandum Circular dated June 4, 1985 of the Office of the President. On September 21, 1987, by way of comment on the appeal, Commissioner Mendiola in his Second Indorsement reiterated his decision dated January 14, 1986. He also opined that the appeal may be considered moot and academic because petitioner was promoted to the position of HS Program Coordinator effective August 17, 1987 (Rollo, pp. 62-63, Annex G, Petition G.R. No. 88177). In her letter dated October 26, 1987, private respondent Amor again protested the promotional appointment of petitioner Paredes as HS Program Coordinator arguing that the latter is not qualified for the said position.: nad On January 4, 1988, the MSPB rendered its decision, the dispositive portion of which provides, viz: "WHEREFORE, the instant appeal is found meritorious. The decision appealed from is hereby reversed. Protestee-appellee Dolores A. Paredes is found not at all qualified for the contested position of HS Project Supervisor as well as of the higher position of HS Program Coordinator which she presently occupies. Accordingly, the CSC approval on said appointments are hereby revoked and the subject appointment is consequently considered ineffective. She should be reverted to her former position of HS Project Officer IV, the validity of which does not have to be decided here. Protestant-appellant Remedios A. Amor is found to be the competent and qualified next-in-rank not only to the Project Supervisor position which she has originally protested but also to the higher and more responsible position of HS Program Coordinator which she recently protested. It is hereby directed that Atty. Amor be appointed to the position of HS Program Coordinator in the Housing and Land Use Regulatory Board (HLURB), immediately. "Let a copy hereof be furnished the Chief Executive Officer, HLURB, the contending parties, the Commission on Audit (COA), and the CSC Field Office, Malacaang, Manila, for their information." (Rollo, pp. 65-66). In arriving at the above stated decision, the MSPB opined that the contested position specifically requires a lawyer, architect, engineer or a holder of a masteral degree for appointment thereto; that petitioner's length of service in the government cannot be used to make up for her educational deficiency; that even if the two year educational requirement can be substituted, petitioner is only a holder of a two year elementary teachers certificate so that she is still one year short of the minimum educational requirement of the contested position as provided in the HSRC Qualification Standards contained in its Merit Promotion Plan and System of Ranking positions approved by the Commission in its Resolution No. 84-215 dated June 28, 1984; that although the appointing authority has a wide latitude of discretion the same is not absolute; that in the exercise of discretion the appointing authority should be guided by the Civil Service Law and Rules. In her motion for reconsideration dated January 21, 1988, petitioner alleged inter alia, that the HSRC has no approved Qualification Standards; that the CSC Resolution No. 84-215 dated June 28, 1984 approved only the HSRC's Merit Promotion Plan and the System of Ranking Position; that the Qualification Standards is separate from the Merit Promotion Plan and the System of Ranking Position; that the promotional appointments of petitioner are legal. On April 25, 1988, the MSPB denied for lack of merit petitioner's motion for reconsideration. It noted that the Personnel Officer III of HSRC forwarded to the Office of the President a duly certified copy of the HSRC Qualification Standards (Rollo, pp. 80-83, G.R. No. 88177). On appeal the Civil Service Commission ruled that although the HLURB Qualification Standards has not been approved it can be used as a basis for recruitment and promotion in order not to jeopardize the operations of the office. Accordingly, it issued Resolution No. 89-072 dated February 1, 1989, the dispositive portion of which reads, viz: "WHEREFORE, in the light of the foregoing premises, the Commission resolved to set aside, as it hereby sets aside the MSPB decision No. 1529 directing the revocation of the appointment of Mrs. Dolores A. Paredes as H.S. Project Coordinator and the appointment of Atty. Remedios A. Amor to the position of H.S. Program Coordinator. Accordingly, the position of H.S. Program Coordinator in the Housing and Land Use Regulatory Board, is declared vacant. It must be filled in by a qualified applicant subject to the discretion of the proper appointing authority and the requirements of the Civil Service Law and Rules." (Rollo, p. 3). On April 1, 1989, the Civil Service Commission issued Resolution No. 89-265 denying for lack of merit petitioner's motion for reconsideration (Rollo, pp. 161-162, G.R. No. 88177). Hence, the instant petition for Certiorari which was docketed as G.R. No. 88177. Meanwhile, on May 7, 1986, petitioner Paredes filed a sworn complaint against private respondent Amor for falsification of official documents, dishonesty, violation of Civil Service Law and reasonable office Rules and Regulations, habitual tardiness, conduct prejudicial to the best interest of the service and for being notoriously undesirable. In her complaint she alleged, among others, that as Head of the Administrative Services Department of the HSRC it is her duty to monitor observance of Civil Service rules and regulations among the employees of HSRC; that on October 17, 1979 private respondent Amor falsely stated in her application for the issuance of Passport No. A-161889 that she had no occupation when at that she was already employed with the HSRC; that on February 27, 1984, she again misrepresented and/or falsely stated in her application for the issuance of Passport No. A-0640312 that she had no occupation when she was and still is an employee of HSRC; that on July 31, 1984 private respondent Amor secured a medical certificate issued by a government physician that she is suffering from acute pneumonitis requiring complete rest for at least two months; that the medical certificate contained false information as she was not ill, the fact that she reported to work from July 31, 1984 to August 3, 1984 and she travelled to the United States from August 8, 1984 to September 30, 1984; that using the medical certificate she filed on August 3, 1984 an application for sick leave of absence for two months enabling her to

collect her salary for the said period; that private respondent Amor in a pleading she filed with the HSRC attached a certificate of authority to travel to the United States purportedly issued on August 3, 1984 by the then Deputy Presidential Executive Assistant Joaquin Venus, Jr.; that said authority to travel is false because there is no record on file in the Office of the President aside from the fact that she could not have filed an application for such authority to travel as an employee of the government because in her passport application she had no occupation; that an examination of her daily time record will show that she was habitually tardy in reporting to work; that despite her employment as Med-Arbiter in the Ministry of Labor and later as Project Officer II in the HSRC she appeared as counsel de oficio before Branch XXX, RTC, Pasay City, without proper authority, in violation of Civil Service Rules and Regulations. Accordingly, petitioner prayed for an investigation and thereafter the dismissal from the service of private respondent Amor. In her answer dated June 18, 1986, private respondent Amor denied the charges and countered that the same is only a retaliatory measure intended to harass and intimidate her as she protested the promotional appointment of petitioner Paredes. She also pointed out that her passport application which is the basis of the complaint is filed by her in her personal capacity and not in any way related to the performance of her official functions. On the medical certificate and the Malacaang clearance she argued that they were issued by public officials so said documents carry with them the presumption that they were regularly issued. (Rollo, p. 71, G.R. No. 89530). Finding the existence of a prima facie case against private respondent Amor, Jezarene C. Aquino, Legal Officer, HSRC, recommended that to resolve all doubts of partiality the case be forwarded to the Civil Service Commission for trial on the merits. Pursuant to CSC Memorandum Circular No. 6, Series of 1978, implementing PD No. 1409, then Commissioner Mendiola requested in his letter dated June 25, 1986 that the said administrative case be taken cognizance of by the Merit System Protection Board.:- nad After hearing and the submission of the parties' memoranda, the MSPB rendered its decisions dated April 22, 1988, absolving private respondent Amor of all charges except for habitual tardiness. Considering that habitual tardiness is a light offense and the evidence on record does not show that she was previously warned, private respondent Amor was only reprimanded and warned that a repetition would be dealt with more severely (Rollo, pp. 54-59, G.R. No. 89530). In absolving private respondent Amor of the administrative charge of falsification of official document, the MSPB opined that no credible evidence was presented and formally offered to prove the charges. It noted that the person who issued the certification containing the entry in private respondent Amor's passport application that she has no occupation was not presented in the hearing; that the entry on occupation was merely typewritten and the other entries are all printed; that the PR verification slip presented as evidence did not contain information indicating the source thereof and the signature of person issuing it. As to the medical certificate, it noted that the issuing physician was not presented as a witness. Thus, it ruled that the doctor's findings that private respondent Amor is suffering from acute pneumonitis requiring her to rest for at least two months cannot be regarded as false just because she reported to work from August 1 to 3, 1984. As regards the certificate of authority to travel the MSPB found nothing irregular, apart from the fact that Deputy Presidential Executive Assistant Venus was not presented to deny the genuineness of his signature. Not satisfied with the decision of the MSPB, petitioner Paredes interposed an appeal to the Civil Service Commission. In its Resolution No. 89-276 dated April 27, 1989, the Civil Service Commission dismissed the appeal on the ground that petitioner Paredes is not the party adversely affected by the decision. Citing Section 39(a) of Presidential Decree No. 807, it ruled that the parties who can appeal in an administrative case are the government and the respondent. In its Resolution No. 89-534 dated July 28, 1989, denying petitioner Paredes' motion for reconsideration, the Civil Service Commission stressed that the party adversely affected under Section 30(a) of P.D 807 had been consistently interpreted to refer to the respondent against whom an adverse decision had been rendered or the Department or Agency concerned and not the complainant. The complainant after the filing of the complaint is relegated to the status of a complaining witness as the offense is committed against the government (Rollo, pp. 45-53, G.R. 89530). Hence, the instant petition for Certiorari which was docketed as G.R. No. 89530. In its En Banc Resolution dated September 28, 1989, this Court resolved (1) to consolidate the above entitled cases (2) to give due course to the petitions (3) to consider the comment as answer and (4) to require the parties to file their memoranda within twenty days from notice (Rollo, p. 76). In compliance therewith, all the parties filed their respective memoranda. Cited as grounds for the allowance of the petition in G.R. No. 88177 are the following: I A QUALIFICATION STANDARDS NOT BROUGHT INTO EXISTENCE IN ACCORDANCE WITH LAW AS ITS WORDS EXPLICITLY STATE CANNOT BE THE BASIS FOR ANNULLING THE PROMOTIONAL APPOINTMENTS EXTENDED TO THE PETITIONER. II THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AS TO AMOUNT TO LACK OF JURISDICTION IN HOLDING THAT THE APPOINTING AUTHORITY, IN EXERCISING THE WIDE LATITUDE OF DISCRETION ACCORDED TO IT IN APPOINTMENTS, IS BOUND BY A QUALIFICATIONS STANDARD WHICH HAS NOT BEEN BROUGHT INTO EXISTENCE IN ACCORDANCE WITH LAW. III THE PETITIONER IS WELL-QUALIFIED FOR THE PROMOTIONAL APPOINTMENTS AWARDED TO HER CONSIDERING HER LONG YEARS OF PUBLIC SERVICE AND QUALIFICATIONS AS A PUBLIC SERVANT. Likewise, in G.R. No. 89530 petitioner Paredes cited the following grounds for the allowance of her petition, viz:

I THE EVIDENCE PRESENTED IN THE HEARINGS OUGHT TO HAVE OVERWHELMINGLY ESTABLISHED THE GUILT OF THE PRIVATE RESPONDENT FOR THE OFFENSES IMPUTED TO HER. II THE RESPONDENT BOARD RENDERED AN ADMINISTRATIVE DETERMINATION WHICH IS CONTRARY TO THE TENETS OF DUE PROCESS OF LAW.: rd III THE PETITIONER IS NOT PRECLUDED FROM DISPUTING THE TOTALLY BASELESS, UNLAWFUL AND PREJUDICED DECISION RENDERED BY THE RESPONDENT BOARD. IV THE RESPONDENT BOARD AS WELL AS THE RESPONDENT COMMISSION HAD COMMITTED GRAVE ABUSE OF DISCRETION AS TO AMOUNT TO LACK OF JURISDICTION THEREBY WARRANTING THE ISSUANCE OF A WRIT OF CERTIORARI. The primary issue for resolution in G.R. No. 88177 is whether or not the public respondent committed a grave abuse of discretion when it sustained the revocation of petitioner Paredes' appointment as HS Project Coordinator and in declaring the said position vacant. For an act of a court or tribunal to be considered as committed in grave abuse of discretion the same must be performed in a capricious and whimsical manner as tantamount to lack of jurisdiction. The abuse of discretion must be so patent and gross as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by law or to act in contemplation and within the bounds of law (Carson et al. v. Judge Pantamosos, Jr., G.R. No. 75934, December 13, 1989; Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. 72424, February 13, 1989; People v. Manuel, 11 SCRA 618). Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition (Del Rosario v. Subido, 31 SCRA 382). It is not disputed that the Qualification Standards which the HSRC formulated sometime in February 1989 was submitted to the public respondent and returned to the HLURB in June 1984 together with the approved Merit Promotion Plan (Private Respondent's Comment, Rollo, p. 161, G.R. No. 88177). The absence of the approved Qualification Standards was attested to no less by Director Antonio M. Hocan, Office of Career System and Standards, Civil Service Commission, in his letter dated January 13, 1988 addressed to Commissioner Ernesto Mendiola (Rollo, pp. 165, G.R. No. 88177). Section 20 of Article III on Personnel Policies and Standards under Presidential Decree No. 807 dated October 6, 1975, expressly mandates that: "SEC. 20. Qualification Standards. (1) A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position. "Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit for the agencies personnel work programs. "It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service. "(2) The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission and the consultation with the Wage and Position Classification Office.": nad Based on the above provisions of law a Qualification Standard prescribes for the minimum qualification requirement in terms of education, Civil Service eligibility, training, experience, physical fitness and other qualities for appointment to a particular position as determined by the appointing authority. A Qualification Standard is to be established or formulated by the Department or agency concerned but must be approved by the Civil Service Commission. Approval is required by law because the Civil Service Commission is the central personnel agency of the government entrusted with the enforcement of laws relative to the selection, promotion and discipline of civil servants. Once approved, the Qualification Standards shall be used as guides in appointment and in the adjudication of contested appointments. In the case at bar, it may be conceded that in the exercise of its quasi-judicial functions, the public respondent Civil Service Commission committed an error in applying the Qualification Standards which it admitted it has not approved. Exigency of the service does not justify the use of Qualification Standard it has not approved. However, the error is not so grave as would warrant the nullification of its resolution declaring the position of H.S. Project Coordinator vacant. The absence of a Qualification Standard does not justify the appointment of petitioner Paredes or any body for that matter to the contested position. Without a duly approved Qualification Standard it would be extremely difficult if not impossible for the appointing authority to determine the qualification and fitness of the applicant for the particular position. Without an approved Qualification Standard the appointing authority would have no basis or guide in extending a promotional or original appointment in filling up vacant positions in its department or agency. Public interest therefore requires that a Qualification Standard must exist to guide the appointing authority not only in extending an appointment but also in setting contested appointments.

Here the appointing authority erroneously assumed that the Qualification Standard it had formulated in February, 1984, had been approved when it was returned in June, 1984, by public respondent together with the approved Merit Promotion Plan. The unapproved Qualification Standard was apparently used by Commissioner Mendiola in appointing petitioner Paredes as its Project Supervisor effective October 1, 1985, because in dismissing private respondent Amor's protest he ruled, among others, that although petitioner Paredes is only a holder of a two year Elementary Teacher's Certificate, her educational deficiency can be substituted with her 31 years service in the government. His erroneous belief of the existence of an approved Qualification Standard may have prompted him to complicate matters by promoting petitioner Paredes to the position of HS Program Coordinator effective August 17, 1987 which was likewise protested by private respondent Amor. Even the Personnel Officer III of the HSRC entertained said belief as it forwarded to the Office of the President a certified true copy of the so-called HSRC Qualification Standards. In declaring the Position of HS Project Coordinator vacant; the public respondent has therefore not abused its discretion as the Qualification Standards of the HSRC which should be the basis and guide for appointment has not been approved by the Civil Service Commission. As regards G.R. No. 89530, the crucial issue to be resolved is whether or not petitioner Paredes has the legal personality to appeal the decision of the MSPB absolving private respondent Amor of all charges except for habitual tardiness for which the latter was reprimanded. Appeal in judicial proceedings is a statutory right that must be exercised only in the manner and in accordance with the provisions of law (Ozaeta v. Court of Appeals, G.R. 83281, December 4, 1989; Velasco v. Court of Appeals, 51 SCRA 439). This doctrine is also applicable in quasi-judicial proceedings so that one must first ascertain the law applicable to determine whether or not the party can appeal the order or decision.:-cralaw Section 37 of Presidential Decree No. 807 provides, viz: "SEC. 37. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (b) The heads of departments, 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. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head." (c) An investigation may be entrusted to regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department, within the period specified in Paragraph (d) of the following Section." (d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal." Section 39 thereof also provides, viz: "SEC. 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward the records of the case, together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date or receipt thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision. "(b) A petition for reconsideration shall be based only on any of the following grounds: (1) new evidence has been discovered which materially affects the decision rendered; (2) the decision is not supported by the evidence on record; or (3) errors of law or irregularities have been committed prejudicial to the interest of the respondent: Provided, That only one petition for reconsideration shall be entertained." Based on the above provisions of law, appeal to the Civil Service Commission in an administrative case is extended to the party adversely affected by the decision, that is, the person or the respondent employee who has been meted out the penalty of suspension for more than thirty days; or fine in an amount exceeding thirty days salary demotion in rank or salary or transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the decision. Here the MSPB after hearing and the submission of memoranda exonerated private respondent Amor of all charges except for habitual tardiness. The penalty was only a reprimand so that even private respondent Amor, the party

adversely affected by the decision, cannot even interpose an appeal to the Civil Service Commission.chanrobles virtual law library As correctly ruled by private respondent, petitioner Paredes the complainant is not the party adversely affected by the decision so that she has no legal personality to interpose an appeal to the Civil Service Commission. In an administrative case, the complainant is a mere witness (Gonzalo v. D. Roda, 64 SCRA 120). Even if she is the Head of the Administrative Services Department of the HSRC as a complainant she is merely a witness for the government in an administrative case. No private interest is involved in an administrative case as the offense is committed against the government. In view of the foregoing discussion it would be unnecessary to consider the other issues raised in these petitions. PREMISES CONSIDERED, the instant petitions are hereby DISMISSED for lack of merit. SO ORDERED.

G.R. No. 152443

February 14, 2005

ANGELITO HUERTAS, petitioner, vs. ANDREW GONZALEZ, Secretary, Department of Education, Culture and Sports (DECS), and CAROLINA DIZON, respondents. CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Resolution1 of the Court of Appeals (CA) in CA-G.R. SP No. 60086 which reversed its Decision2 in the said case and its resolution denying the motion for reconsideration of the said resolution. The Antecedents An administrative complaint dated July 9, 1996 was filed with the Office of the Regional Director of the then Department of Education, Culture and Sports (DECS), National Capital Region, by Dr. Carolina C. Dizon, the principal of the Bacood Elementary School in Sta. Mesa, Manila, against Angelito M. Huertas, a school teacher in the same school, for grave misconduct, disrespect of authority and violation of the provision of the Magna Carta for Public School Teachers. 3 It appears that shortly after the opening of academic year 1996, the school conducted a regular election of the officers of the faculty club. Huertas was re-elected president, besting for the second time around his co-teacher, Mrs. Catalina Lorenzo. This notwithstanding, a group of teachers circulated a manifesto denouncing Huertas. As a countermove, Huertas launched his own signature campaign to show his clear mandate. 4 Huertas received information that Dizon was preventing the teachers from signing in his favor. 5 He rushed to the office of Dizon and angrily demanded, "Bakit mo pinipigilan ang mga teachers na pumirma?" (Why are you preventing the teachers to sign?)6 Shocked at Huertass accusations and violent gestures, Dizon stood up and retorted: "Anong pinipigilan ang sinasabi mo?" (What are you talking about?)7 to which Huertas riposted, "May mga teachers na nagsasabi na pinipigilan mo silang pumirma sa pinapipirmahan ko." (Some teachers are claiming that you are preventing them from signing in my behalf.)8 Dizon then dared Huertas to show to her the faces of her detractors: "Bakit ko sila pipigilan, hindi ko alam ang sinasabi mo. Sino man ang nagsabi niyan, iharap mo sila sa akin." 9 After the heated exchange of words, Huertas decided to leave, but before doing so, warned Dizon, "Pag hindi ka tumigil, tayo ang magkakasuhan." (If you dont stop, I will sue you.)10 Dizon preempted Huertas and filed an administrative complaint against him. An Investigating Committee (Grievance Committee) was constituted for the purpose, chaired by Atty. Manuel Ano, with Mrs. Purificacion Balingit and an unidentified school official, as members. 11 Aside from her affidavit-complaint, Dizon submitted the affidavits of Amelia del Rosario and Rosario Amarante, the clerk and janitress of the school, respectively. Huertas submitted his counter-affidavit. Dizon submitted her reply-affidavit, to which Huertas submitted his rejoinder-affidavit. The Investigating Committee conducted a preliminary hearing which was held on July 23, 1996. No amicable settlement was forged by the parties. The formal investigation was set on September 10, 1996, during which Huertas appeared without the assistance of counsel. The parties agreed to submit the case for resolution without any formal investigation on the basis of the affidavits on record. In time, the Grievance Committee submitted its investigation report, finding Huertas guilty of gross discourtesy in the course of official duties and recommended the penalty of six (6) months suspension. 12 Huertas appealed the report, claiming that Purificacion Balingit, one of the members of the hearing committee, was partial against him.

In a Resolution dated October 16, 1996, Regional Director Nilo Rosas modified the findings and recommendation of the Grievance Committee. He found Huertas guilty of gross disrespect and imposed on him the penalty of one (1) month suspension from service without pay. The dispositive portion of the resolution reads: WHEREFORE, in view of the foregoing incidents, the instant charge of Grave Misconduct is hereby dropped for lack of substantial evidence. However, respondent is hereby found guilty of the charge of Gross Disrespect. However, to temper the harshness of the law, hereby meted is the penalty of suspension for one (1) month effective upon receipt hereof without pay. Further, respondent is hereby advised to be more circumspect in his actuations to forestall, henceforth, the filing of similar complaints against him in the future. 13 Huertas moved for a reconsideration of the resolution on the alleged ground of lack of due process, both substantive and procedural.14 He claimed that he was not represented by counsel during the investigation on September 10, 1996 and that the Grievance Committee failed to conduct a formal investigation of the case. Director Rosas denied the motion, prompting Huertas to appeal the resolution to the DECS Secretary via a petition for review. On November 20, 1997, then DECS Secretary Ricardo T. Gloria issued a Resolution reversing the resolutions of the Regional Director and dismissing the administrative complaint for want of a formal hearing. The Secretary ruled that Huertas was deprived of his right to due process when the Grievance Committee dispensed with a formal investigation and based its report-recommendation merely on the affidavits of the parties and those of the witnesses of the complainant. The fallo of the resolution reads: WHEREFORE, in view of the foregoing, the decision of the Regional Director, Department of Education, Culture and Sports, National Capital Region, meting the penalty of one month suspension without pay is hereby reversed. Accordingly, the administrative case against the respondent is hereby dismissed for lack of due process. However, respondent is hereby warned to be more circumspect in his actuations to forestall the filing of similar complaint against him in the future. SO ORDERED.15 Dissatisfied, Dizon herself filed a motion for the reconsideration of the resolution. On March 20, 1998, then Acting Secretary Erlinda C. Pefianco reconsidered the ruling of her predecessor and reinstated the resolution of the Regional Director. The fallo of the resolution reads: In view hereof, the Resolution of this Office dated November 20, 1997 is reconsidered. Accordingly, the decision of the DECS Regional Director, National Capital Region, dated October 28, 1996, is hereby restored. 16 Huertas filed a petition for review which was treated as a motion for reconsideration by then DECS Secretary Andrew Gonzalez, FSC.17 On June 10, 1999, Secretary Gonzalez reconsidered and set-aside Secretary Pefiancos March 20, 1998 Resolution and reinstated Secretary Glorias November 20, 1997 Resolution. The dispositive portion reads: The resolution of then Secretary Erlinda C. Pefianco, dated March 20, 1998, is hereby reversed and the Resolution of then Secretary Ricardo T. Gloria dated November 11, 1997 (sic), which dismissed the complaint for lack of due process, is hereby revived. SO ORDERED.18 In reinstating Secretary Glorias November 20, 1997 Resolution, Secretary Gonzalez tersely and succinctly ratiocinated: It is evident that then Secretary Pefianco acted on the motion for Reconsideration of the [complaint] contrary to the rule that only the respondent can file a motion for reconsideration (CSC Resolution No. 94-0512, Sec. 7). 19 Dizon, this time, filed a motion for the reconsideration of the June 10, 1999 Resolution of the Secretary. Acting thereon, the Secretary made a volte face and reinstated Secretary Pefiancos Resolution of March 20, 1998 on July 23, 1999, thus: WHEREFORE, in view of the foregoing, this Office hereby recalls its Resolution dated June 10, 1999 and restores the Resolution of Acting Secretary Erlinda Pefianco, dated March 20, 1998. SO ORDERED.20 Huertas filed a letter-request for the reconsideration thereof, which the Secretary denied. The case was considered closed and terminated: WHEREFORE, this Office hereby denies the said motion and considers the case closed and terminated, insofar as this Department is concerned.21

The Secretary considered the letter-request of Huertas as a second motion for reconsideration which was proscribed by Section 49, Rule XIV of Executive Order (E.O.) No. 292, otherwise known as the 1987 Revised Administrative Code. Aggrieved by the foregoing rulings, Huertas filed a petition for review in the CA wherein he raised the following issues: I WHETHER OR NOT THE COMPOSITION OF THE GRIEVANCE/INVESTIGATION COMMITTEE, DECS-NCR, DIVISION OF CITY SCHOOLS, THAT CONDUCTED THE HEARING IN THE PRESENT CASE WAS IN ACCORDANCE WITH THE MANDATE OF REPUBLIC ACT 4670, OTHERWISE KNOWN AS MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS. II WHETHER OR NOT NON-COMPLIANCE WITH THE REQUIREMENTS OF REPUBLIC ACT NO. 4670 AS REGARDS THE COMPOSITION OF THE GRIEVANCE COMMITTEE IS VIOLATIVE OF THE DUE PROCESS OF LAW. III WHETHER OR NOT PRIVATE RESPONDENT CAROLINA DIZON HAS THE LOCUS STANDI TO FILE A MOTION FOR RECONSIDERATION.22 In its comment on the petition, the Office of the Solicitor General (OSG) averred that Huertas was estopped from assailing the composition of the Grievance Committee, thus: A party cannot invoke the jurisdiction of a court by voluntarily submitting a cause to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. Petitioner cannot renounce the jurisdiction of the court a quo considering that he had earlier submitted to such jurisdiction. Estoppel by laches bars petitioners attack on the jurisdiction of the investigating committee because he never raised the issue when he was being investigated. 23 On July 24, 2001, the CA rendered a decision setting aside Secretary Gonzalezs Resolutions dated July 23, 1999 and July 10, 2000, and reinstating Secretary Glorias November 20, 1997 Resolution. The CA ruled that Dizon herself had the right to appeal or move for a reconsideration of the November 20, 1997 Resolution of Secretary Gloria as held by the Court in gr_ Civil Service Commission v. Dacoycoy.24 It rejected the argument of the OSG that a decision in administrative cases penalized by one month suspension or less shall be final under Section 47(2), Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292. According to the CA, the petitioners case does not fall within the ambit of E.O. No. 292 because "the root of the penalty is an illegally constituted investigating committee. As the old adage tells us it is a fruit of a poisonous tree." 25 The appellate court also ruled that the composition of the committee which investigated the administrative complaint against Huertas was not in accordance with Section 9 of Republic Act No. 4670, otherwise known as the Magna Carta for Public School Teachers; hence, the petitioner was deprived of his right to due process. However, upon motion for reconsideration 26 filed by the OSG, to which Huertas filed his opposition, 27 the CA reconsidered its Decision of July 24, 2001 and dismissed the petition for lack of merit on September 27, 2001. The fallo of the resolution reads: WHEREFORE, the respondents Motion for Reconsideration is hereby GRANTED. The Decision dated July 24, 2001, is hereby RECONSIDERED and SET ASIDE. The petition is hereby DISMISSED for lack of merit. SO ORDERED.28 The CA held that Huertas was barred from assailing the composition of the Grievance Committee and was proscribed from appealing the resolution of Regional Director Rosas to the Secretary of Education, Culture and Sports. Huertas filed a motion for the reconsideration 29 thereof which was denied by the CA. Huertas, now the petitioner, comes to the Court via a petition for review on certiorari against respondents Dizon and the DECS Secretary, contending that: I THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN THE INTERPRETATION/APPLICATION OF THE LAW AND IN THE APPRECIATION OF THE FACTS AND EVIDENCE PRESENTED.

II THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN FAILING TO CONSIDER THE NON-COMPLIANCE OF THE MANDATORY REQUIREMENTS OF REPUBLIC ACT 4670 AS REGARDS THE COMPOSITION OF THE GRIEVANCE COMMITTEE WHICH IS VIOLATIVE OF THE DUE PROCESS LAW. III THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN FAILING TO CONSIDER THAT RESPONDENT CAROLINA DIZON HAS NO PERSONALITY TO FILE A MOTION FOR RECONSIDERATION. 30 As the first two issues are interrelated, the Court shall delve into and resolve them simultaneously. The petitioner avers that an integral component of his right to due process is a tribunal vested with complete jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality. The petitioner asserts that Section 9 of Republic Act No. 4670 enumerates those who should compose an investigating committee, and that under DECS Order No. 34, Series of 1999, noncompliance with the requirements of the said law would amount to a denial of due process. The petitioner avers that Atty. Manuel Ano was not a school superintendent of the division, and that the teachers organization was not represented in the committee. Citing the ruling of this Court in gr_ Fabella v. Court of Appeals,31 the petitioner posits that the proceedings before the committee and its report are null and void. He maintains that since the Grievance Committee failed to conduct a formal investigation prior to the submission of its report to the Regional Director, he was deprived of his right to present his side and adduce evidence in his behalf. In their comment on the petition, the respondents, through the OSG, aver that there exists at the Division of the City Schools, Manila, a specialized section denominated as Legal Affairs and Complaints Service (LACS), which is tasked to investigate complaints for disciplinary actions against the teachers of its division. One of those cases investigated by the LACS was the complaint of respondent Dizon against the petitioner. Besides, the respondents argue that the petitioner is estopped from assailing the composition of the committee because The administrative case against petitioner for Grave Misconduct and Disrespect to Authority, filed by his own lady Principal, is one of these cases belonging to the LACS. From the very start of the investigative proceedings up to its termination, and even after the DECS Grievance Committee submitted its report of findings and recommendation, petitioner never questioned the competence of the hearing officers or the legality of the proceedings. He is now barred effectively by laches and estoppel to question the proceedings conducted and the judgment rendered in the administrative case against him. When petitioner appealed the judgment of Rosas, he did not raise therein the issue of the composition of the investigating committee. Litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice. A question that was never raised in courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process. No question, issue or argument will be entertained on appeal unless it has been raised in the court a quo. Basic is the rule that parties may not bring on appeal issues that were not raised on trial. More importantly, the judgment of conviction with the penalty of one month suspension is final and unappealable. In fact, petitioner had already partially served his penalty of suspension. Consequently, the Court of Appeals did not commit any reversible error in upholding the Pefianco Resolution, thus, reinstating ultimately and correctly the Rosas Resolution in the DECS administrative case.32 We agree with the respondents that the petitioner is estopped from assailing the competence of the Grievance Committee. Section 9 of Rep. Act No. 4670 reads: SECTION 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly-authorized representative who should, at least, have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. In the present action, the members of the Grievance Committee who were tasked to conduct a formal investigation of the complaint of respondent Dizon belonged to the Legal Affairs and Complaints Service of the Manila Division of City Schools; hence, contrary to Section 9 of Rep. Act No. 4670. In fine, the Committee that was tasked to conduct the formal

investigation was not the competent tribunal required by the law. Indeed, we made the following ruling in Fabella v. Court of Appeals:33 In the present case, the various committees formed by the DECS to hear the administrative charges against private respondents did not include "a representative of the local or, in its absence, any existing provincial or national teachers organization" as required by Section 9 of RA 4670. Accordingly, these committees were deemed to have no competent jurisdiction. Thus, all proceedings undertaken by them were necessarily void. They could not provide any basis for the suspension or dismissal of private respondents. The inclusion of a representative of a teachers organization in these committees was indispensable to ensure an impartial tribunal. It was this requirement that would have given substance and meaning to the right to be heard. Indeed, in any proceeding, the essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard.34 However, such ruling is inapplicable in the instant case. As the OSG averred, during the hearings before the Grievance Committee, the petitioner never assailed its composition or its competence to take cognizance of and conduct a formal investigation of respondent Dizons complaint. He, likewise, failed to do so before the Regional Director, and did not even appeal the matter to DECS Secretary Gloria, and his successors Secretary Pefianco and Secretary Gonzalez. The petitioner assailed the committees composition and competence for the first timeonly in his petition before the CA. Moreover, the petitioner submitted his counter-affidavit before the committee, and even agreed to submit the case for report and recommendation without any formal investigation, on the basis of mere affidavits of the parties and those of the witnesses of respondent Dizon. Verily then, the petitioner is estopped from assailing the competence of the committee. As we ruled in Cloma v. Court of Appeals:35 It has been held that a party can not invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of explaining the rule, it was further said that the question whether the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated obviously for reasons of public policy. Furthermore, it has also been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease vs. Rathbun-Jones, etc., 243 U.S. 273, 61 L.Ed. 715, 37 S.Ct. 283; St. Louis, etc. vs. McBride, 141 U.S. 127, 35 L.Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to, afterwards, deny that same jurisdiction to escape a penalty. Upon this same principle is what We said in the three cases mentioned in the resolution of the Court of Appeals of May 20, 1963 (supra) to the effect that we frown upon the "undesirable practice" of a party submitting his case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse as well as Pindagan, etc. vs. Dans, et al., G.R. L-14591, September 26, 1962; Montelibano, et al. vs. Bacolod-Murcia Milling Co., Inc., G.R. L-15092; Young Men Labor Union, etc. vs. The Court of Industrial Relations, et al., G.R. L-20307, Feb. 26, 1965, and Mejia vs. Lucas, 100 Phil., p. 277. (Italics supplied). 36 On the third issue, the petitioner avers that respondent Dizon was barred from filing a motion for the reconsideration of the November 20, 1997 Resolution of Secretary Gloria. This resolution reversed that of Regional Director Rosas and ordered the dismissal of the said complaint, on the ground that the petitioner was deprived of his right to due process when the committee dispensed with a formal investigation and because its report was based merely on the affidavits on record. The petitioner cites Section 39(a) of Presidential Decree No. 805, which provides that appeals where allowable, shall be made by the party adversely affected by the decision. He also cites Del Castillo v. Civil Service Commission,37 where the Court ruled that only the government employee against whom the administrative case is filed is entitled to appeal from a decision adverse to him, and the ruling of this Court in Mendez v. Civil Service Commission38 that the civil service law does not contemplate a review of decisions exonerating officers or employees from administrative charges. The petitioner insists that when Secretary Gloria ordered the dismissal of the complaint against him for lack of due process, he was exonerated of the charge. We do not agree with the petitioner. The Court overturned its ruling in Mendez v. Civil Service Commission39 and in Civil Service Commission v. Dacoycoy ,40 which latter holding, in turn, was reiterated in Philippine National Bank v. Garcia, Jr.41 Thus: In his Concurring Opinion, Justice Reynato S. Puno explained that the Civil Service Law did not categorically sanction the old doctrine barring appeals by parties other than the respondent employee. What the law declared as "final" were only those decisions of heads of agencies involving suspensions of not more than thirty days or fines not exceeding thirty days salary. These decisions, he said, involved minor and petty offenses, and to allow multiple appeals in those instances would overburden the quasi-judicial machinery of our administrative systems. Neither can the old doctrine barring appeal be justified by the provision limiting the jurisdiction of the Civil Service Commission. According to that provision, the CSC was limited to the review of decisions involving: (1) suspension for more

than thirty (30) days; (2) fine in an amount exceeding thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or dismissal from office. Nothing in the provision, however, indicates a legislative intent to bar appeals from decisions exonerating a government official or an employee from an administrative charge. It is a well-entrenched rule that if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verily, the words employed by the legislature in a statute correctly express its intent or will and preclude courts from construing it differently. The legislature is presumed to have known the meanings of the words, to have used those words advisedly, and to have expressed its intent by the use of such words as are found in the statute. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory construction, and this Court has no right to look for or impose another meaning. Indeed, the battles against corruption, malfeasance and misfeasance will be seriously undermined if we bar appeals of exoneration. After all, administrative cases do not partake of the nature of criminal actions, in which acquittals are final and unappealable based on the constitutional proscription of double jeopardy. Furthermore, our new Constitution expressly expanded the range and scope of judicial review. Thus, to prevent appeals of administrative decisions except those initiated by employees will effectively and pervertedly erode this constitutional grant.42 It must be stressed that the petitioner was not exonerated of the charge against him in the November 20, 1997 Resolution of Secretary Gloria; the DECS Secretary merely nullified the proceedings before the committee as well as its report/recommendation. Hence, respondent Dizon was moving for the reconsideration of the November 20, 1997 Resolution of the Secretary, and was not, in effect, appealing from any resolution exonerating the petitioner. We agree with the petitioner that there was no formal or trial-type investigation conducted by the committee, and that it relied solely on the affidavits submitted by the parties when it rendered its report/recommendation. The Court notes, however, that no less than the petitioner agreed to do away with the formal investigation, and to the submission of the case for reporting and recommendation on the basis of the affidavits on record. In fine, the petitioner waived his right to a formal investigation. We thus agree with the following disquisitions of the OSG: The records of the administrative proceedings before the Investigating Committee show that petitioner was accorded all the opportunity to secure the services of a lawyer, to prepare himself with witnesses and evidence to be presented at the next scheduled hearings, but he opted instead to submit the case on the basis of his counter-affidavits. A formal or trialtype hearing is not, at all times, essential to due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side. Due process in an administrative context does not require trial-type proceedings similar to those in the courts. After all, the essence of due process is simply an opportunity to be heard or, as applied in administrative proceedings, an opportunity to explain ones side, or an opportunity to seek a reconsideration of the ruling or action complained of, all of which were amply afforded respondent Huertas. If not availed of, as petitioner is shown to have treated the administrative proceedings lightly before, it is deemed waived or forfeited without violation of the Bill of Rights.43 Besides, as further noted by the OSG, the petitioner had commenced serving the penalty meted on him. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. SO ORDERED.

G.R. No. 152833

May 9, 2005

CIVIL SERVICE COMMISSION, petitioner, vs. JOCELYN S. GENTALLAN, respondent. G.R. No. 154961 May 9, 2005

THE MUNICIPALITY OF JASAAN, Represented by the Municipal Mayor HUBERTO C. PAUROM, petitioner, vs. JOCELYN S. GENTALLAN, respondent.

QUISUMBING, J.: Before us are two consolidated petitions for review on certiorari, i.e., G.R. No. 152833 filed by the Civil Service Commission, and G.R. No. 154961 filed by the Municipality of Jasaan, Misamis Oriental, represented by Mayor Huberto C. Paurom. Both assail the Decision1 dated November 26, 2001 of the Court of Appeals, which has set aside the Resolutions dated May 27, 2000 and October 11, 2000 of the Civil Service Commission (CSC). The CSC had earlier held that the respondent Jocelyn Gentallan was not entitled to back salaries, representation and travel allowance (RATA) and bonuses which she was claiming against the municipality. The facts in the present controversy are undisputed. On December 14, 1994, then Mayor Jose Salcedo appointed Jocelyn Gentallan as local civil registrar of the Municipality of Jasaan, Misamis Oriental. Commissioner Thelma Gaminde of the CSC, when queried about Gentallans qualifications, confirmed that Gentallans work experience was more than enough to meet the minimum requirement of three (3) years experience for the position of local civil registrar. After the lapse of fifteen (15) days without any action rendered by the Sangguniang Bayan of Jasaan, the appointment was eventually deemed approved. On January 5, 1995, the Civil Service Commission Regional Office No. 10 (CSCRO-10) approved her appointment as permanent. However, Rosalina Asis, a research aide in the Office of the Local Civil Registrar, filed a protest. It was dismissed by the CSC in CSC Resolution No. 95-5317 dated August 31, 1995, because the protestant was not a qualified next-in-rank. In the same resolution, however, the CSC reviewed the appointment of respondent Jocelyn Gentallan. It held that Gentallan was not qualified as she failed to fulfill the required three-year experience relevant to the position of local civil registrar. Her motion for reconsideration was denied in CSC Resolution No. 96-0582, dated January 25, 1996. She then filed a petition for review docketed as CA G.R. SP No. 40482 before the Court of Appeals. Meanwhile, Mayor Paurom, pursuant to the CSC resolutions, ordered respondent to vacate the post as Local Civil Registrar and directed her to assume her former position as Assistant Registration Officer. In its Decision2 dated October 22, 1997, the Court of Appeals set aside the questioned resolutions and found respondent qualified to the position. The decision became final and executory on November 15, 1997. 3 On September 2, 1998,4 Regional Director Jose T. Soria of CSCRO-10 informed the Mayor of the appellate courts decision and advised him to implement the same and reinstate respondent to the position of Local Civil Registrar. However, the mayor did not. Respondent, through her counsel, wrote the CSCRO-10 requesting for an order directing the municipality to reinstate her and pay her backwages. 5 Still, respondent was not reinstated. Thus, respondent was constrained to file a case for mandamus with damages, and indirect contempt before the Regional Trial Court of Misamis Oriental. Consequently, the parties reached an agreement. On December 21, 1998, the mayor issued a memorandum,6 directing respondent to assume office as the local civil registrar, and a notice 7 of respondents salary adjustment was issued. Thereafter, respondent asked the CSCRO-10 if she was entitled to back salaries, RATA and bonuses. The CSCRO-10 through Regional Director Annabelle B. Rosell, in an Order 8 dated June 14, 1999, granted the entitlements. When consulted by the mayor, the provincial attorney agreed that respondent was indeed entitled pursuant to the Court of Appeals decision that had already become final. However, the mayor still did not give respondent her back salaries, RATA and bonuses. The Sangguniang Bayan of Jasaan in Resolution No. 302-99 deleted the items of appropriations for her salaries and instead, appropriated the same for the operation of the Active Night Assistance Center (ANAC). 9 Respondent requested the CSC for the execution of the CSCRO10 Order but the CSC reversed it in CSC Resolution No. 001264 dated May 24, 2000. 10It said that respondent was not entitled to back salaries and other emoluments as she was not illegally dismissed from the service. Said the CSC: As culled from the records, Mayor Paurom issued the Memorandum dated March 8, 1996, reverting Gentallan to her former position, Assistant Registration Officer, to execute the CSC Resolution Nos. 95-5317 and 96-0582. Hence, Gentallan cannot be considered to have been illegally dismissed from the service since her reversion to her former position was a result of a lawful order of the Commission. 11 The motion for reconsideration of respondent was denied in CSC Resolution No. 002305 dated October 11, 2000. 12 Gentallan then filed before the Court of Appeals a petition for review assailing the resolutions. The appellate court set aside the CSC Resolutions Nos. 001264 and 002305, and reinstated the Order of CSCRO-10. 13 The Municipality of Jasaan sought reconsideration but it was denied. The CSC likewise filed a motion for reconsideration but the same was denied for lack of standing.

Hence, the instant petitions. Petitioner CSC in G.R. No. 152833, assigns the following errors: I. THE COURT OF APPEALS ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION HAS NO LEGAL STANDING TO QUESTION THE DECISION. II. THE COURT OF APPEALS ERRED IN FINDING THAT REINSTATEMENT NECESSARILY IMPLIES THE GRANT OF BACK SALARIES AND DIFFERENTIAL BONUSES.14 In the second petition, G.R. No. 154961, the Municipality of Jasaan raises the following issues in its memorandum: A. WHETHER OR NOT RESPONDENT GENTALLAN WAS, IN EFFECT, ILLEGALLY REMOVED FROM OFFICE, HENCE ENTITLED TO BACKWAGES? B. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN REVERSING AND SETTING ASIDE RESOLUTIONS NOS. 001264 & 002305 OF THE CSC?15 Simply put, the basic issue in the instant petitions is whether or not respondent Jocelyn Gentallan is entitled to back salaries, RATA and bonuses. In G.R. No. 152833, the CSC contends that the payment of the money claims of Gentallan, whose appointment was previously revoked, would impair the effectiveness of government. The CSC questions whether in cases of reinstatement, the grant of differential backwages, RATA and differential bonuses would necessarily follow. 16 Respondent Gentallan, for herself, claims that CSC has no standing to bring this petition as the CSC could not be a party that would be adversely affected by the review and reversal of its decision. 17 But the CSC citing Civil Service Commission v. Dacoycoy18 insists that it has standing to appeal the case. Petitioner municipality, in G.R. No. 154961, contends that Gentallan was not illegally removed from her position; that the mayor was only following the lawful orders of the CSC when he directed the reversion of respondent to her former position as Assistant Registration Officer; and that the resolutions of the CSC were immediately executory even pending appeal, unless a higher court issues a temporary restraining order or preliminary injunction. Thus, according to the municipality, Gentallan was not improperly denied of her position as local civil registrar, hence there is no basis to claim the award of back salaries, RATA and bonuses. Furthermore, the petitioner municipality maintains that Gentallans appointment as Local Civil Registrar had become ineffective by virtue of the CSC resolutions, at least until the Court of Appeals reversed them. Therefore, her salaries and other emoluments must be reckoned only from the time she actually assumed the said office. Petitioner municipality also insists that respondent did not render service, actual or constructive, as local civil registrar at the time, thus she was not entitled to compensation. She would, however, be compensated properly as Assistant Registration Officer when she re-assumed said position. Respondent, on the other hand, claims that her removal from office as Local Civil Registrar was not only highly irregular but also tainted with malice and bad faith. As she was illegally dismissed, she should be entitled to backwages, RATA, and other bonuses. She said that her removal was the direct consequence of the protest filed by Rosalina Asis, not because of any administrative disciplinary action, such that the immediate execution of the orders to oust her as local civil registrar was unnecessary. Gentallan maintains that it was already late for the petitioner municipality to question the conclusion of the appellate court in CA G.R. SP No. 40482 that she was illegally removed from her position. The municipality did not appeal the said decision, and it had already become final. The finality of said decision was also the basis of the Court of Appeals when it granted her backwages, RATA and other bonuses. At the outset, it should be noted that the Civil Service Commission, under the Constitution, is the central personnel agency of the government charged with the duty of determining questions of qualifications of merit and fitness of those appointed to the civil service.19 Thus, the CSC, as an institution whose primary concern is the effectiveness of the civil service system, has the standing to appeal a decision which adversely affects the civil service. 20 We hold, at this juncture, that CSC has the standing to appeal and/or to file its motion for reconsideration. After a careful review of the circumstances in these consolidated petitions, we are in agreement with the Court of Appeals that respondent was qualified and eligible for the position of local civil registrar, and there was no factual nor legal basis

for her removal from said position. The CA order to reinstate her had become final and executory. The CA decision ought to be upheld. As a permanent appointee to the position, she enjoys security of tenure. She is likewise entitled to all benefits, rights and privileges attached to the position. She cannot be removed or dismissed from the service without just cause and without observing the requirements of due process. 21 An illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and just because an employee who is reinstated after having been illegally dismissed is considered as not having left her office and should be given the corresponding compensation at the time of her reinstatement. 22 In the instant case, we note that there is no finding that malice or bad faith attended the illegal dismissal and refusal to reinstate Gentallan by her superior officers. Thus, they cannot be held personally accountable for her back salaries. The municipal government, therefore, should disburse funds to answer for her claims resulting from dismissal. 23 WHEREFORE, the assailed Decision of the Court of Appeals dated November 26, 2001 is hereby MODIFIED. The Civil Service Commission is declared with legal standing to file its appeal and/or motion for reconsideration in this case. But we hereby sustain the decision of the Court of Appeals insofar as it declares that Jocelyn S. Gentallan should be reinstated to her position with backwages, RATA, and bonuses to be paid by the Municipality of Jasaan, Misamis Oriental. SO ORDERED.

G.R. No. 149999. August 12, 2005 THE NATIONAL APPELLATE BOARD (NAB) OF THE NATIONAL POLICE COMMISSION (NAPOLCOM), Petitioners, vs. P/INSP. JOHN A. MAMAUAG, SPO2 EUGENE ALMARIO, SPO4 ERLINDA GARCIA and SPO1 VIVIAN FELIPE,Respondent. DECISION CARPIO, J.: The Case Before the Court is a petition for review 1 assailing the 6 September 2001 Decision 2 of the Court of Appeals. The Court of Appeals set aside the 3 July 1997 Resolution of Philippine National Police ("PNP") Chief Recaredo Sarmiento II ("PNP Chief Sarmiento"), the 3 March 2000 Decision and the 30 June 2000 Resolution, both of the National Appellate Board ("NAB") of the National Police Commission. The Antecedent Facts Very early in the morning of 2 March 1995, Nancy Gaspar ("Gaspar") and Proclyn Pacay ("Pacay) left the residence of Judge Adoracion G. Angeles ("Judge Angeles") in Quezon City. Gaspar and Pacay were both minors and were later classified as moderate or mild mental retardates by the Department of Social Welfare and Development ("DSWD"). Agnes Lucero ("Lucero") found Gaspar and Pacay wandering around the vicinity of the Philippine Rabbit bus terminal in Cubao. Gaspar and Pacay narrated to Lucero stories of maltreatment and non-payment of salary by Judge Angeles. Around 4:00 a.m., Lucero brought Gaspar and Pacay to the Baler Police Station 2, Central Police District Command ("CPDC"), Quezon City. At the police station, desk officer SPO1 Jaime Billedo ("Billedo") recorded the girls complaint in the police blotter. On Billedos instruction, SPO1 Roberto C. Cario ("Cario") brought Gaspar and Pacay to the East Avenue Medical Center for the requisite medical examination. Later, the two girls were returned to the police station where Cario interviewed them. Carios Initial Investigation Report was reviewed and signed by SPO2 Eugene V. Almario ("Almario") and approved by P/Insp. John A. Mamauag ("Mamauag"). Later, SPO1 Vivian M. Felipe ("Felipe") and SPO4 Erlinda L. Garcia ("Garcia") escorted Gaspar and Pacay to the DSWD. P/Insp. Roberto V. Ganias ("Ganias") signed the Letter of Turnover to the DSWD. The incident drew the attention of the media and spawned several cases. One was a criminal case for child abuse under Republic Act No. 76103 against Judge Angeles. Another was an administrative complaint for Grave Misconduct filed by

Judge Angeles against Ganias, Mamauag, Almario, Cario, Felipe and Garcia. Judge Angeles later impleaded Billedo as additional respondent. In her administrative complaint, Judge Angeles alleged: 1. On March 2, 1995, respondents Ganias, Almario and Mamauag submitted an Initial Investigation Report to the District Director, CPDC, and respondent Ganias turned over a Report to the DSWD merely on the basis of a verbal report of Agnes Lucero on Judge Reyes alleged maltreatment of Nancy Gaspar and Proclyn Pacay "without getting the required sworn statements of the two (2) girls and Agnes Lucero"; 2. While the two girls were under police custody, respondents found in the possession of Pacay several items of jewelry and clothing materials belonging to and stolen from complainant Judge Angeles. Complainants witnesses, Dr. Sagradia Aldova, Oliva Angeles and Mary Ann Agustin requested the respondents to register in the police logbook the discovery of the stolen articles but to no avail; 3. Despite the insistent request of said witnesses and subsequently of the complainant that a report for qualified theft be entered in the police blotter, respondents maliciously refused to act upon the incident and conduct further investigation; 4. Respondents bad faith and highly irregular conduct in handling the maltreatment charge against complainant was also manifested when respondents did not give her a chance to explain her side by not contacting her although her residence is just a few houses away from the police station; 5. Even before she was informed of the accusations against her, the police leaked the baseless maltreatment case against her as shown by the presence of so many people and members of the media as well as the Human Rights Commission personnel at the police station; 6. The fact that no case has yet been filed against her shows that the whole event was maliciously manipulated by her detractors to harass and malign complainant with the willing assistance of men in uniform. 4 The Inspectorate and Legal Affairs Division ("ILAD") of the CPDC investigated the administrative complaint. After its investigation, the ILAD recommended the dismissal of the charges. In a Resolution 5 dated 10 April 1995, the CPDC District Director approved the recommendation and dismissed the complaint. Not satisfied with the outcome of her complaint, Judge Angeles moved for re-investigation of the case before PNP Chief Sarmiento. The Ruling of the PNP Chief In a Decision6 dated 7 June 1996, PNP Chief Sarmiento ruled as follows: WHEREFORE, this Headquarters finds: Respondent[s] P/CINSP. ROBERTO GANIAS, SPO1 Jaime Billedo, and SPO1 Roberto Cario guilty of Serious Neglect of Duty and orders their dismissal from the police service; P/INSP JOHN MAMAUAG and SPO2 Eugene Almario guilty of Less Serious Neglect of Duty and orders that both of them be suspended from the police service for Ninety (90) days with forfeiture of pay; and SPO4 Erlinda Garcia and SPO1 Vivian Felipe exonerated of the charge for insufficiency of evidence. 7 Judge Angeles filed a Motion for Partial Reconsideration. 8 In a Resolution9 dated 3 July 1997, PNP Chief Sarmiento modified his previous ruling and ordered the dismissal from the service of Mamauag, Almario, Garcia and Felipe ("Mamauag, et al."). Mamauag, et al. forthwith filed a petition for certiorari and mandamus against PNP Chief Sarmiento, PNP Inspector General Jovencio Sales and Judge Angeles before the Regional Trial Court of Quezon City, Branch 101. In an Order 10 dated 25 November 1997, the Regional Trial Court dismissed the petition for failure of petitioners to exhaust administrative remedies and for failure to show that respondents abused their discretion. Mamauag, et al. then appealed the PNP Chiefs Resolution before the NAB. The Ruling of the National Appellate Board In a Decision,11 dated 3 March 2000, the NAB dismissed the appeal for late filing and lack of merit. The NAB declared: Appellants Mamauag, Almario, Garcia and Felipe, in seeking immediate judicial remedy by way of a Petition forCertiorari and Prohibition against appellee and the PNP dismissal authority even if they have not yet exhausted all administrative remedies available to them had in fact defaulted in their right to exercise such later option by omission of their own doing. The right to appeal is provided for by law and he who seeks to exercise that right must abide with the rules provided therefor.

The substantive rule regarding appeals from a decision of dismissal from the police service imposed by the Chief, PNP is found in Section 45 of RA 6975, which provides in part, thus: "Section 45. Finality of Disciplinary Decision - Provided, further, that the disciplinary action imposed by the Chief of the PNP involving dismissal may be appealed to the National Appellate Board within ten (10) days from receipt thereof." It was on a day certain between July 3 1997 (the date of the Resolution of dismissal) and July 18, 1997 (date of Petition for Certiorari and Prohibition) that Mamauag, et al. must have received a copy of aforesaid Resolution and from that same day, they had ten (10) days within which to file their appeal before the NAB had they chosen to exhaust administrative remedies. But they chose to avail of another remedy thereby effectively foreclosing their right of appeal to NAB in view of the lapse of the reglementary period for filing the same. WHEREFORE, premises considered, the appeal of P/Insp. John Mamauag, SPO2 Eugene Almario, SPO4 Erlinda Garcia and SPO1 Vivian Felipe is hereby DISMISSED for lack of merit. SO ORDERED.12 Mamauag, et al. filed a motion for reconsideration of the Decision but the NAB denied it in the NAB Resolution 13 of 30 June 2000. Thus, Mamauag, et al. sought relief from the Court of Appeals. The Ruling of the Court of Appeals In its Decision of 6 September 2001, the Court of Appeals ruled: WHEREFORE, in view of the foregoing, the Resolution of the PNP Chief Recaredo Sarmiento II dated 3 July 1997, having been rendered in excess of his jurisdiction is hereby SET ASIDE for being null and void. Accordingly, theDECISION and RESOLUTION made by the National Appellate Board dated 3 March 2000 and 30 June 2000, respectively, are also SET ASIDE for being null and void. SO ORDERED.14 In finding for Mamauag, et al., the Court of Appeals explained: First of all, the said provision expressly states that "the disciplinary action imposed upon a member of the PNP shall be final and executory." Nowhere does the said provision grant any party to move for a reconsideration of any disciplinary action imposed as the remedy provided thereunder is an appeal of either party of the decision to the National Appellate Board, if such involves a demotion or dismissal of a member of the PNP. In fact, since the original decision only suspended petitioners Mamauag and Almario from service and even exonerated Felipe and Garcia, the said decision is not even subject to any appeal. The said decision clearly does not involve any demotion nor dismissal which could properly be appealed to the NAB. Moreover, even under the assumption that a motion for reconsideration is allowed, the one filed by Judge Angeles should not have merited any consideration from the PNP Chief. Judge Angeles did not have the personality to make such a motion. While Sec. 45 of R.A. 6975 does not clearly provide who may appeal (or for that matter make any motion for reconsideration) from the decision of the PNP Chief, the last clause mentions "either partymay appeal with the Secretary" and by the doctrine of necessary implication this extends to said decision of the PNP Chief. It is elementary that in an administrative case, the complainant is a mere witness. No private interest is involved in an administrative case as the offense committed is against the government . As held by the Supreme Court in Paredes vs. Civil Service Commission: "As correctly ruled by private respondent, petitioner Paredes the complainant is not the party adversely affected by the decision so that she has no legal personality to interpose an appeal to the Civil Service Commission. In an administrative case, the complainant is a mere witness (GONZALO VS. D. RODA, 64 SCRA 120). Even if she is the Head of Administrative Services Department of the HSRC as a complainant she is merely a witness for the government in an administrative case. No private interest is involved in an administrative case as the offense is committed against the government." (Emphasis supplied) Obviously, Judge Angeles has no interest which would be directly and materially affected by the decision rendered by the PNP Chief. Not being a proper party to the said case as she is only a mere witness then her motion should not have served as a ground for the re-evaluation of the administrative case against the petitioners which resulted into a modification of the PNP Chiefs earlier decision.

On this score, We find the latest ruling of the Supreme Court on this matter: "Subsequently, the Court of Appeals reversed the decision of the Civil service Commission and held the respondent not guilty of nepotism. Who may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the responden[t] who was declared not guilty of the charge. Nor the complainant George P. Suan who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court ." (Emphasis supplied) Applying this to the present case by analogy, had the original judgment been rendered in favor of the petitioners, it would be the Philippine National Police which would be adversely affected and thus would be the proper party to appeal such a judgment. Corollary to this, where the original judgment is adverse to the petitioners, it is they who could properly appeal the same. In either case, the complainant Judge Angeles certainly has no legal personality to move for a reconsideration of the original decision handed down by the PNP Chief. In view of the foregoing, this Court can only rule, as We do now, that the appealed resolution (dated 3 July 1997) was made in excess of the PNP Chiefs jurisdiction rendering it null and void. Hence, upon the basic legal precept that a void decision or resolution can never attain finality, NAB should have ruled accordingly on the matter. Finding that it did not, the Courts remedial power must perforce be exercised to rectify the matter before Us. 15 Hence, the NABs recourse to this Court. The Issues The Office of the Solicitor General, representing the NAB, raises the following issues: 1. Whether Section 45 of Republic Act No. 6975 16 (RA 6975) allows the filing of a motion for reconsideration; 2. Whether the private complainant in an administrative case has the legal personality to move for reconsideration, or appeal an adverse decision of the disciplining authority. The Ruling of This Court The petition has no merit. Mamauag and Almario argue that the disciplinary action of 90-day suspension imposed on them in the 7 June 1996 Decision of PNP Chief Sarmiento has become final and executory. Mamauag, et al. also argue that private complainant Judge Angeles has no personality to move for partial reconsideration of the 7 June 1996 Decision of PNP Chief Sarmiento. Mamauag, et al. cite Sections 43(e) and 45 of RA 6975 which provide: SEC. 43. Peoples Law Enforcement Board (PLEB). x x x (e) Decisions. The decision of the PLEB shall become final and executory: Provided, That a decision involving demotion or dismissal from the service may be appealed by either party with the regional appellate board within ten (10) days from receipt of the copy of the decision. xxx SEC. 45. Finality of Disciplinary Action. - The disciplinary action imposed upon a member of the PNP shall be final and executory: Provided, That a disciplinary action imposed by the regional director or by the PLEB involving demotion or dismissal from the service may be appealed to the regional appellate board within ten (10) days from receipt of the copy of the notice of decision: Provided, further, That the disciplinary action imposed by the Chief of the PNP involving demotion or dismissal may be appealed to the National Appellate Board within ten (10) days from receipt thereof: Provided, furthermore, The regional or National Appellate Board, as the case may be, shall decide the appeal within sixty (60) days from receipt of the notice of appeal: Provided, finally, That failure of the regional appellate board to act on the appeal within said period shall render the decision final and executory without prejudice, however, to the filing of an appeal by either party with the Secretary. The Court of Appeals sustained Mamauag, et al. Decisions Appealable Under RA 6975

Section 45 of RA 6975 provides that a "disciplinary action imposed upon a member of the PNP shall be final and executory." Under Section 45, a disciplinary action is appealable only if it involves either a "demotion or dismissal from the service." If the disciplinary action is less than a demotion or dismissal from the service, the disciplinary action "shall be final and executory" as Section 45 of RA 6975 expressly mandates. Thus, a decision imposing suspension on a PNP member is not subject to appeal to a higher authority. Administrative disciplinary action connotes administrative penalty. 17 If the decision exonerates the respondents or otherwise dismisses the charges against the respondents, there is no disciplinary action since no penalty is imposed. The provision that a penalty less than demotion or dismissal from service is final and executory does not apply to dismissal of charges or exoneration because they are not disciplinary actions. This gives rise to two crucial questions. First, can a party appeal from a decision of the disciplining authority dismissing the charges against a PNP member? Second, if a decision dismissing the charges against a PNP member is appealable, who can appeal the PNP or the private complainant, or both? Before the case of CSC v. Dacoycoy,18 case law held that dismissal of the charges or exoneration of the respondents in administrative disciplinary proceedings is final and not subject to appeal even by the government. Thus, in Del Castillo v. Civil Service Commission,19 et al., the Court held: Section 37, paragraph (a), of PD 807, the Philippine Civil Service Law, provides: (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office xxx (Italics supplied). Interpreting the above provision, we held in Mendez v. CSC that: xxx xxx xxx It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. (Victorias Milling Co., Inc. vs. Office of the Presidential Assistant for Legal Affairs, 153 SCRA 318). A cursory reading of P.D. 807, otherwise known as The Philippine Civil Service Law shows that said law does not contemplate a review of decisions exonerating officers or employees from administrative charges . Section 37 paragraph (a) thereof, provides: xxx xxx xxx Said provision must be read together with Section 39 paragraph (a) of P.D. 805 which contemplates: Appeals, where allowable, shall be made by the party adversely affected by the decision xxx (italics supplied) (p. 104, Rollo) The phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an aggrieved party because he is not the respondent in the administrative case below. Finally, pursuant to Section 37 paragraph (b) of P.D. 807, the city major, as head of the city government, is empowered to enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent to one month against erring employees. By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges files against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal. (Emphasis supplied) However, in Dacoycoy, the Court modified the rule in Del Castillo and earlier cases by allowing the Civil Service Commission to appeal dismissals of charges or exoneration of respondents in administrative disciplinary proceedings. In Dacoycoy, the Court ruled:

At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court . By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" or "when the respondent is exonerated of the charges, there is no occasion for appeal." In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; Mendez v. Civil Service Commission; Magpale v. Civil Service Commission; Navarro v. Civil Service Commission and Export Processing Zone Authority and more recently Del Castillo v. Civil Service Commission. (Emphasis supplied) Subsequent decisions20 of the Court affirmed Dacoycoy. Dacoycoy allowed the Civil Service Commission to appeal dismissals of charges or exoneration of respondents in administrative disciplinary proceedings. However, Dacoycoy maintained the rule that the private complainant is a mere government witness without a right to appeal. 21 Thus, case law holding that the private complainant has no right to appeal the decision of the disciplining authority remains good law. As explained by Justice Jose Melo in his concurring opinion in Floralde v. Court of Appeals:22 However, in Civil Service Commission v. Dacoycoy (306 SCRA 425 [1999]), which incidentally is another ponencia of Mr. Justice Pardo, the majority, with undersigned ponente dissenting, modified the above doctrine by allowing the CSC to appeal in cases where the respondent is exonerated of the charges. Nevertheless, in both cases, the Court did not deviate from the doctrine that the complainant, being a mere witness for the government, cannot appeal the decision rendered in the administrative case. In Paredes, we declared that the complainant is not the party adversely affected by the decision so that she has no legal personality to interpose an appeal to the CSC. In an administrative case, the complainant is a mere witness. No private interest is involved in an administrative case as the offense is committed against the government. (Emphasis supplied) Section 91 of RA 6975 provides that the "Civil Service Law and its rules and regulations shall apply to all personnel of the Department." Consequently, case law on administrative disciplinary proceedings under the Civil Service Law also applies to administrative disciplinary proceedings against PNP members. Even without Section 91, case law on the civil service necessarily applies to PNP members who are embraced in the phrase "civil service" 23 under Section 2(1), Article IX-B of the 1987 Constitution. RA 6975 itself does not authorize a private complainant to appeal a decision of the disciplining authority. Sections 43 and 45 of RA 6975 authorize "either party" to appeal in the instances that the law allows appeal. One party is the PNP member-respondent when the disciplining authority imposes the penalty of demotion or dismissal from the service. The other party is the government when the disciplining authority imposes the penalty of demotion but the government believes that dismissal from the service is the proper penalty. However, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing must be one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent. Thus, in Mathay, Jr. v. Court of Appeals,24 decided after Dacoycoy, the Court declared: To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review."

In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," not to litigate. In any event, a private complainant like Judge Angeles is not one of "either party" who can appeal under Sections 43 and 45 of RA 6975. The private complainant is a mere witness of the government which is the real party in interest. 25 In short, private complainant Judge Angeles is not a party under Sections 43 and 45 who can appeal the decision of the disciplining authority. Thus, Judge Angeles has no legal personality to appeal the dismissal of the charges against Mamauag, et al. by the CPDC District Director in the Resolution of 10 April 1995. The motion for re-investigation filed by Judge Angeles with the PNP Chief is in substance an appeal from the decision of the CPDC District Director. The PNP Chief had no jurisdiction to entertain Judge Angeles appeal in the guise of a motion for re-investigation. Since the PNP Chief had no jurisdiction, all actions taken by the PNP Chief pursuant to the appeal is void. Thus, the Decision of the CPDC District Director dismissing the charges against Mamauag, et al. stands and is now final and executory. We note that, as found by PNP Chief Sarmiento in his earlier Decision of 7 June 1996, there is no evidence on record to hold Garcia and Felipe liable for any misconduct. The 3 July 1997 Resolution of PNP Chief Sarmiento stated that Garcia and Felipe "were eye-witnesses to the criminal act" of the theft of Judge Angeles jewelry. The same Resolution also held that Garcia and Felipe "were active participants in the cover-up (of the theft) contrary to the assertion that they merely brought minors Pacay and Gaspar to the DSWD upon instructions of their superior." The theft, however, happened at the house of Judge Angeles. Garcia and Felipe were indisputably not eyewitnesses to the crime of theft, contrary to the finding of the PNP Chief. There is also no evidence on record of any act showing that Garcia and Felipe participated in any cover-up of the theft. We quote the NAB Decision of 29 July 1997 explaining why there was no cover-up of the alleged theft: Appellants argue that after minors Pacay and Gaspar narrated and showed signs of their harrowing life under Judge Angeles, and pursuant to standard police practice and the policy of the state to protect children against abuse, exploitation and discrimination committed by persons having care and custody of them, appellant Cario decided with the approval of Chief Insp. Ganias to bring said minors to the hospital for medico-legal examination. Thereafter, the minors were placed under the protective custody of the DSWD in accordance with Executive Order No. 50, Series of 1986. For performing their duties pursuant to law and after tending to the needs of said minors as mandated under Sec. 2 of RA 7610, and for refusing to enter in the police blotter a fictitious crime of Qualified Theft and to turn over said minors to the custody of the complainant, appellants were unceremoniously suspended and subjected to summary dismissal proceedings. It would defy both logic and human nature that a mere SPO1 such as appellant Cario would refuse the rightful demands of respectable emissaries of a well-known and feared RTC Judge whose reputation precedes her. There is no plausible reason, therefore, for appellant to refuse entry of the alleged stolen jewelry in the blotter. They are more than aware that they are facing a lawyer and judge who can make life miserable for them if they refuse to perform their duties enjoined by law. The truth of the matter is that what was discovered was a coin purse/wallet of Nancy Gaspar placed inside the paper bag of Proclyn Pacay and which yielded fancy jewelry items, a P20-peso bill and a wristwatch that according to Gaspar was given her by the private complainant. It was Oliva Angeles and Dra. Sagrada who took with them the coin purse of Pacay. How the private complainant produced the alleged stolen jewelry worth P26,820.25 is a matter which only they can explain.26 PNP Chief Sarmientos Decision of 7 June 1996 dismissed from the service Ganias, Billedo, and Cario, suspended for 90 days Mamauag and Almario, and exonerated Garcia and Felipe. All the respondents initially appealed the Decision to the NAB. The NAB exonerated Ganias, Billedo and Cario and advised the PNP Chief "to take note of our findings in the instant case and to act thereon accordingly" with respect to Judge Angeles pending motion for partial reconsideration involving Mamauag, et al. The PNP Chief, however, issued his Resolution on 3 July 1997 dismissing from the service Mamauag, et al., twenty-six days before the NAB Decision of 29 July 1997. The NAB, which is a higher disciplining authority than the PNP Chief, found that the same grave misconduct charged against all the respondents never happened. Thus, the NAB exonerated and reinstated Ganias, Billedo and Cario, whom the PNP Chief dismissed from the service in his original Decision of 7 June 1996. The NAB decision became final and executory on 28 February 1998. Ironically, Mamauag and Almario, whom the PNP Chief originally meted out a lesser penalty of 90-day suspension but subsequently dismissed on motion for partial reconsideration, have not been reinstated to their positions up to now. Garcia and Felipe, whom the PNP Chief originally exonerated but subsequently dismissed on motion for partial reconsideration, have also not been reinstated to their positions. And yet, as found by the NAB, the appellate disciplining authority superior to the PNP Chief, the same offense of grave misconduct charged against all respondents, including Mamauag, et al., never happened.

WHEREFORE, we DENY the instant petition. We AFFIRM the Decision of the Court of Appeals promulgated on 06 September 2001 in CA-G.R. SP No. 61711 with MODIFICATION. We REVERSE the 3 July 1997 Resolution of PNP Chief Recaredo Sarmiento II and REINSTATE the Resolution of 10 April 1995 of the CPDC District Director dismissing the charges against P/Insp. John A. Mamauag, SPO2 Eugene Almario, SPO4 Erlinda Garcia, and SPO1 Vivian Felipe, who are all entitled to back salaries and other benefits as provided under Section 48 27 of Republic Act No. 6975. SO ORDERED.

G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike. The antecedents are as follows: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241]. The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37]. Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. 151-152]. The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision.

The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute. On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking. In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike. Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike are as follows: 1. Do the employees of the SSS have the right to strike? 2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with the strike and to order them to return to work? These shall be discussed and resolved seriatim I The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, explained: MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for self-organization of government employees, it does not mean that because they have the right to organize, they also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohibit the strikes coming from employees exercising government functions, that could be done because the moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the governmentowned and controlled, are allowed to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problem. We know that this problem exist; that the moment we allow anybody in the government to strike, then what will happen if the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions: .Sec. 11. Prohibition Against Strikes in the Government. The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment. Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike: Provided, however, That this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations. No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all government employees, including employees of government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter. On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue]. But are employees of the SSS covered by the prohibition against strikes? The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees with regard to the right to strike: The general rule in the past and up to the present is that 'the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [At p. 13; Emphasis supplied]. Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179]. E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: .SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees' organizations and appropriate government authorities. The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: .SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees. In case any dispute remains unresolved after exhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." II The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it. It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor Management Council with jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute. This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. III In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents

from withholding payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board. The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final. WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED. SO ORDERED.

G.R. No. L-49677 May 4, 1989 TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, petitioner, vs. NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor Relations, respondents. REGALADO, J.: The employees of the public sector comprise the largest bloc of workers in our national work force. Governmental bureaucracy is continually being reorganized to cope with the growing complexity of the problems and needs of political and administrative governance. As the increase in the number of government employees grows space, the need to enhance their welfare correspondingly becomes more imperative. While it may be assumed that the Government is exerting efforts to advance the interests of its employees, it is quite understandable that the employees themselves should actively seek arrangements where by they can participate more meaningfully in management and employment relationships. There is, thus, a proliferation of unions or employees' organizations, each seeking concomitant representational recognition. The antecedent facts which led to the filing of this special civil action for certiorari are clear and undisputed. The juridical status and relevant circumstances of respondent corporation have been established in a case of illegal dismissal filed against it, as previously decided by the Court and hereinafter discussed. However, submitted this time for Our resolution is a controversy on the propriety of and requirements for certification elections in government-owned or controlled corporations like the respondent. Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation organized in 1959 in accordance with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 459, the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System, the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation and the People's Homesite and Housing Corporation. 1 Petitioner Trade Unions of the Philippines and Allied Services (TUPAS, for brevity) is a legitimate labor organization with a chapter in NHC. On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with Regional Office No. IV of the Department of Labor in order to determine the exclusive bargaining representative of the workers in NHC. It was claimed that its members comprised the majority of the employees of the corporation. 2 The petition was dismissed by medarbiter Eusebio M. Jimenez in an order, dated November 7, 1977, holding that NHC "being a government-owned and/or controlled corporation its employees/workers are prohibited to form, join or assist any labor organization for purposes of collective bargaining pursuant to Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3 From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting thereon in BLR Case No. A984-77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a certification election. 5 This order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978 6 upon a motion for reconsideration of respondent NHC. In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays that a certification election be held among the rank and file employees of NHC.

In retrospect, it will be recalled that in a former case of illegal dismissal involving the same respondent corporation, 7 We had ruled that the employees of NHC and of other government owned or controlled corporations were governed by civil service laws, rules and regulations pursuant to the 1973 Constitution which provided that "the civil service embraces every branch, agency, subdivision and instrumentality of the government, including government-owned or controlled corporations." 8 It was therein stressed that to allow subsidiary corporations to be excluded from the civil service laws would be to permit the circumvention or emasculation of the above-quoted constitutional provision. As perceptively analyzed therein, "(i)t would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidiary corporation rations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subject to the competitive restraints of the open market nor to the terms and conditions of civil service employment." The rule, however, was modified in the 1987 Constitution, the corresponding provision whereof declares that "(t)he civil service embraces all branches, subdivisions, instrumentalities and agencies of the government, including governmentowned or controlled corporations with original charters." 9 Consequently, the civil service now covers only government owned or controlled corporations with original or legislative charters, that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. As We recently held ..., the situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National Housing Corporation case ... appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-owned controlled corporations with original charters and therefore, by clear implication, the Civil Service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law. 10 While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal dismissal, the same lis mota determinative of the present special civil action was involved therein. The workers or employees of NHC undoubtedly have the right to form unions or employees' organizations. The right to unionize or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors. The Bill of Rights provides that "(t)he right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged" 11 This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which mandates that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law ...." Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX B 12 which provides that "(t)he right to self-organization shall not be denied to government employees." The rationale of and justification for this innovation which found expression in the aforesaid provision was explained by its proponents as follows: ... The government is in a sense the repository of the national sovereignty and, in that respect, it must be held in reverence if not in awe. It symbolizes the unity of the nation, but it does perform a mundane task as well. It is an employer in every sense of the word except that terms and conditions of work are set forth through a Civil Service Commission. The government is the biggest employer in the Philippines. There is an employer-employee relationship and we all know that the accumulated grievances of several decades are now beginning to explode in our faces among government workers who feel that the rights afforded by the Labor Code, for example, to workers in the private sector have been effectively denied to workers in government in what looks like a grotesque, (sic) a caricature of the equal protection of the laws. For example, ... there were many occasions under the old government when wages and cost of living allowances were granted to workers in the private sector but denied to workers in the government for some reason or another, and the government did not even state the reasons why. The government employees were being discriminated against. As a general rule, the majority of the world's countries now entertain public service unions. What they really add up to is that the employees of the government form their own association. Generally, they do not bargain for wages because these are fixed in the budget but they do acquire a forum where, among other things, professional and self-development is (sic) promoted and encouraged. They also act as watchdogs of their own bosses so that when graft and corruption is committed, generally, it is the unions who are no longer afraid by virtue of the armor of self-organization that become the public's own allies for detecting graft and corruption and for exposing it.... 13 There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a government-owned and/or controlled corporation without an

original charter. Statutory implementation of the last cited section of the Constitution is found in Article 244 of the Labor Code, as amended by Executive Order No. 111, thus: ... Right of employees in the public service Employees of the government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered academic even the distinction between the two types of government-owned or controlled corporations and the laws governing employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or by the civil service laws, a certification election may be conducted. For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules. With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the government including government-owned or controlled corporations with original charters and who are, therefore, covered by the civil service laws, the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees representative"; Under Section 12, "where there are two or more duly registered employees' organizations in the appropriate organization unit, the Bureau of Labor Relations shall, upon petition order the conduct of certification election and shall certify the winner as the exclusive representative of the rank-and-file employees in said organizational unit." Parenthetically, note should be taken of the specific qualification in the Constitution that the State "shall guarantee the rights of all workers to self-organization, collective bargaining, and peaceful concerted activities, including the right to strike in accordance with law" and that they shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law." 14 (Emphasis supplied.) ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor Relations, dated November 21, 1978, is ANNULLED and SET ASIDE and the conduct of a certification election among the affected employees of respondent National Housing Corporation in accordance with the rules therefor is hereby GRANTED. SO ORDERED.

G.R. No. L-12347

May 30, 1961

HERCULANO GRAPILON, petitioner-appellee, vs. MUNICIPAL COUNCIL OF CARIGARA, LEYTE, ET AL., respondents-appellants. DIZON, J.: In the general elections held on November 8, 1955 in the municipality of Carigara, Leyte, Jose Aguilar and Herculano Grapilon were elected mayor and vice-mayor, respectively. Thereafter, both qualified for and assumed office in accordance with law. On March 6, 1957, in compliance with a resolution duly approved by the municipal council, Mayor Aguilar left Carigara for Manila on official business. On that same date appellee inquired from the municipal secretary if it was true that the mayor had left for Manila, to which the municipal secretary replied in the affirmative, informing him besides that Mayor Aguilar left for Manila on official business, without designating anybody as acting municipal mayor. After receiving the secretary's answer appellee informed him "that I assume office as acting municipal mayor effective today and for the duration of his absence pursuant to the provision of Section 2195 of the Revised Administrative Code" (Exhibit A). He dressed a similar notice to the chief of police of the municipality and to the provincial governor of Leyte. In his notice (by telegram) to the latter, appellee also informed him that the municipal secretary had refused to recognize him as acting mayor and asked for advice. Answering petitioner's telegram, the provincial governor, under date of March 7, 1957, wrote him an official letter in which he said that, in view of the reasons therein stated, "in the absence of the municipal mayor when such absence is for official purpose he may not leave the office to the vice-mayor and there shall not be an acting mayor" (Annex B to Exhibit G, page 10 of the Record of Exhibits).

On March 11, 1957, alleging that the municipal council, the municipal secretary Felipe Lianza and the chief of police Ulpiano Arpon had refused to recognize him as acting mayor and had excluded him from the use and enjoyment of the office of municipal mayor, appellee filed with the lower court a petition for mandamus praying that judgment be rendered requiring the therein respondent to (1) recognize, submit to, and respect his authority as acting municipal mayor; (2) open, unlock and allow his entry into the office of the municipal mayor in the Municipal Hall of Carigara, Leyte; and (3) perform their duties according to law and cooperate with their legitimate superior the acting municipal mayor. He also prayed that the respondents be ordered to pay him P10,000.00 as moral damages, P1,500.00 as attorney's fees, and P100.00 as costs of litigation. Upon denial of their motion to dismiss, appellants filed their answer alleging therein, inter alia, that the municipal council had no juridical personality and therefore could not be sued; that appellee had not been designated as acting municipal mayor, and, therefore, had no right to exercise the rights and prerogatives of said office; that mandamus was not the proper remedy because appellee should have sought relief under the provisions of Sections 2188-2191 of the Revised Administrative Code before resorting to the courts. After trial upon the issues thus raised, the lower court rendered the appealed decision, the dispositive part of which reads as follows: . FOR ALL THE FOREGOING, the Court declares that the Vice Mayor is entitled to assume and discharge the office of Municipal Mayor in accordance with Sec. 2195 of the Rev. Adm. Code in the absence of the latter without having designated anyone to act as such; and considering that there is no other plain, speedy and adequate remedy in the ordinary course of law to which the petitioner may resort, the special remedy of Mandamus is in order and by the present is granted. The respondents Municipal Secretary, Chief of Police and the five members of the Municipal Council, Dr. Benito Go, Mrs. Marpa, Mr. Torrevillas, Mr. Molo and Mr. Badiable are hereby ordered to immediately recognize the authority and personality of the petitioner as acting Municipal Mayor, of the municipality of Carigara and to pay the costs without pronouncement as to moral damages and other incidental expenses alleged in the petition or in the counterclaim. The respondents appealed and now urge us to reverse the decision of the lower court upon the following grounds: firstly, appellee was not entitled to a writ of mandamus because he had a plain, speedy and adequate remedy in the ordinary course of the law to secure the relief sought in his petition; secondly, under the provisions of Section 2195 of the Revised Administrative Code appellee was not entitled to assume the office of municipal mayor of Carigara during the absence of mayor Aguilar on official business in Manila; and thirdly, the lower court erred in not awarding the moral damages, attorney's fees and expenses of litigation claimed in their counterclaim. Inasmuch as the incident involved in this case happened four years ago, the principal legal question involved herein could be considered as moot were it not for the fact that appellants claim that the lower court erred in not awarding them the damages sought in their counterclaim. Their right thereto depends principally if not entirely upon whether appellee's action was justified and, if it was not, whether he filed suit in bad faith. It is not disputed that mayor Aguilar left Carigara for Manila on March 6, 1957 on official business, in compliance with a duly approved resolution of the municipal council. While appellee contends that it was enough for the mayor to be away not present physically from Carigara for him to be entitled to step into his shoes appellants, for their part, contend that the "absence, suspension or other temporary disability of the mayor" mentioned in the legal provision relied upon by appellee refer to disability which temporarily prevents the municipal mayor from performing the duties of his office. Consequently appellants argue, inasmuch as mayor Aguilar was in Manila on official business, he was not disabled at all but was actually performing the duties of his office. To allow the vice-mayor to act as acting mayor under such state of facts would lead to the irregular situation of two mayors for the same municipality acting at the same time. Appellants' contention seems to be logical. Section 2195 of the Revised Administrative Code considers "absence" on the same level as "suspension" and other forms of temporary disability. If a municipal mayor is supended as in the case of Laxamana vs. Baltazar, G.R. No. L-5955, relied upon by appellee obviously he is disabledtemporarily; he can not act as mayor or exercise the powers and prerogatives of his office while under suspension. The "absence" that would authorize the vice-mayor to act as acting mayor should, therefore, be construed in the same manner; it should be such absence as disables the mayor from exercising the powers and prerogatives of his office. Such is not the case in the one before us because mayor Aguilar was in Manila precisely in his capacity as mayor of Carigara transacting official business. Although physically absent from Carigara, he was in the exercise of the powers and prerogatives of his office and was naturally entitled to continue drawing his salary. Furthermore, while the ordinary meaning of "absence" is the state of being away or not present, we believe that an officer's absence is not such as to warrant the placing of another person temporarily in his place unless said officer is absent on an occasion demanding the immediate exercise of the powers of his office. In the case before us there is no satisfactory evidence showing that during the absence of mayor Aguilar on official business in Manila particularly at the time appellee attempted to assume the office of acting mayor of Carigara, an occasion had arisen demanding immediate and peremptory exercise of the powers of that office either for the preservation of public order or for the enforcement of the laws and ordinances. We, therefore, agree with appellants that under the circumstances of the case, appellee had no right to assume the office of acting mayor.

This question has already been decided by the Executive Branch of the government. On November 25, 1948 the then Secretary of the Interior rendered an opinion upon a case on all fours with the present, the pertinent portions of which are as follows: The phrase 'other temporary disability' found in section 2195 of the Code. follows the words 'absence' and 'suspension' and is used as modifier of the two preceding words, under the principle of statutory construction known as ejusdem generis. Under American jurisprudence, 'absence' is construed to mean not merely physical absence, but absence which prevents the mayor from the active performance of his duties. In the case of the mayor of a municipality it is usually provided that the president of the municipal council shall exercise all the powers of the mayor during his absence from the municipality, and under such a provision it has been held that 'absence' must be construed reasonably, and so construed means what may be called 'effective' absence. (37 American Jurisprudence, 893.' In the case of Gelina v. Fugere (R.O.) 180 A. 346, 351, 'effective' absence was given the same interpretation. In the instant case however, Mayor Carlos E. Perez left his office for Manila, for the purpose of transacting official business affecting his municipality . . . . Under this circumstance, his absence can not be called 'effective' to warrant the assumption by the vice-mayor of his position by operation of law, as to all intents Mayor Perez continues in the exercise of his power and prerogatives even while outside the municipality and draws his salary for the period he was out of his official station. (Decision, Secretary of the Interior, dated November 25, 1948, pp. 54-55, The Provincial and Municipal Law, by Cortes). While the above opinion is not necessarily controlling upon the courts, it must be accorded considerable weight giving as it does the interpretation of the Executive Department for a legal provision affecting the rights of subordinate officials. The above notwithstanding, we find appellants' claim for damages to be without merit because there is no evidence of any kind showing that appellee had acted maliciously and in bad faith in bringing this suit for mandamus, nor is there sufficient evidence in the record to prove the damages claimed. WHEREFORE, the decision appealed from is reversed insofar as it grants the writ of mandamus, and is affirmed insofar as it dismisses the counterclaim of appellants. Without costs.

G.R. No. L-58289 July 24, 1982 VALENTINO L. LEGASPI, petitioner, vs. THE HONORABLE MINISTER OF FINANCE and THE HONORABLE COMMISSIONER and/or THE BUREAU OF INTERNAL REVENUE; respondents. BARREDO, J.: Petition filed by the Honorable Valentino L. Legaspi, incumbent member of the interim Batasang Pambansa, praying that this Court declare Presidential Decree 1840 "granting tax amnesty and filing of statement of assets and liabilities and some other purposes" unconstitutional. The petition contains the following allegations: 5. That said decree was issued by the President under supposed legislative powers granted him under Amendment No. 6 of the Constitution proclaimed in full force and effect as of October 27, 1976 pursuant to Proclamation No. 1595 and which is quoted as follows: Whenever in the Judgment of the President, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land. 6. That said decree was promulgated despite the fact that under the Constitution "(T)he legislative power shall be vested in a Batasang Pambansa" (Sec. 1, Article VIII) and the President may grant amnesty only with concurrence of the Batasang Pambansa (Sec. 11, Art. VII);

7. That Amendment No. 6 is not one of the powers granted the President by the Constitution as amended in the plebiscite of April 7, 1981; that while Section 16 of Art. VII of the Constitution provides: All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the land which are not herein provided for on conferred upon any official shall be deemed and are hereby vested in the President unless the Batasang Pambansa provides otherwise. such re-confirmation of existing powers did not mean to include the President's legislative powers under Amendment No. 6: by "the laws of the land which are not herein provided for or conferred upon any official" only those laws that have been passed by the existing and/or prior legislature are intended; 8. That the Respondents are intending and in fact implementing the provisions of the questioned decree and the same tends to affect all taxpayers in the Philippines including herein Petitioner; that he is now in a quandary on whether to take advantage of the benefits of said decree since the same is of doubtful constitutionality leaving him no protection as guaranteed by the decree and thus subject him to prosecution for violation of which otherwise would have held him immune under said decree; 9. That as a member of the Batasang Pambansa he knows that the subject of the questioned decree has not been brought to the attention of the Batasang Pambansa requiring immediate attention, the fact being that the original tax amnesty decree which the questioned decree amended or modified has long been effective and implemented by the Respondents while the Batasang Pambansa was in session; 10. That Presidential Decree No. 1840 is patently null and void having been passed without the concurrence of the Batasang Pambansa and it is likewise of public interest and of the nation that the question of whether the President retained his legislative power after lifting Martial Law and after the Constitution was amended on April 7, 1981 be resolved; 11. That the questioned decree being the first dated after the lifting of Martial Law and the April 7 amendments brings to test the validity of the exercise of standby emergency powers invoked in Amendment No. 6. (Pp. 3-6, record.) As the petitioner himself puts it in his memorandum, the issue is: Whether the 1973 Constitution as amended by Plebiscite-Referendum of 1976, retained the same amendments, more particularly Amendment No. 6, after it was again amended in the Plebiscite held on April 7, 1981? On the issue thus formulated by petitioner, it is maintained that "Amendment No. 6 is rendered inoperable, deleted and/or repealed by the amendments of April 7, 1981". Opening his discussion of this proposition thus: Amendment No. 6 as originally submitted to the people for ratification under Pres. Dec. No. 1033, and thereafter approved reads as follows: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the Interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land. Whether the matter or that there was an exigency which required immediate action let it be conceded that in the judgment of the President such facts do exist. (Emphasis ours) It is to be observed that the original text mentions President (Prime Minister). This is so because under No. 3 of the same amendment, ... The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions, and likewise he shall continue to exercise his powers and prerogatives under the 1935 Constitution and the powers vested in the President and the Prime Minister under this Constitution. Parenthetically, the term "Incumbent President" employed in the transitory provisions could only refer to President Ferdinand E. Marcos (Aquino vs. Commission on Elections, 62 SCRA 275). After the April 7 amendments there exists no longer "a President (Prime Minister)" but "A President"and "A Prime Minister." They are now two different offices which cannot be held by a single person not a transitory one but a regular one provided for and governed by the main provisions of the newly amended Constitution. Subsequent

events accept the reality that we are no longer governed by the transitory provisions of the Constitution. (Pp. 2728, Record.) petitioner rationalizes his affirmative position thereon this wise: Is Amendment No. 6 of the 1973 Constitution as approved in 1976 reproduced or unaffected by the April 7, 1981 amendment? Or, is it considered repealed by Omission? The Constitutional provisions of the Presidency do not restate the provisions of Amendment No. 6 which grants the President (Prime Minister) limited powers to legislate. This is tantamount to a withdrawal or deletion of such grant. There is no way by which the incumbent President be referred to anymore as the "incumbent President" in the amendment of 1976. While it is true that Amendment No. 6 fails to distinguish between "incumbent" and "regular" all provisions with reference to the powers of the Presidency is deemed foreclosed by Article VII of the newly amended Constitution. Article VII enumerates presidential powers. To construe that the 1976 Amendments are still applicable, other than that referring to the Interim Batasang Pambansa would be an incompatibility to the application of the present constitutional provisions. Generally taken, the 1976 amendments are amendments to the transitory provisions of the Constitution. Insofar as the office of the President or the Prime Minister is concerned they have ceased to be governed by the transitory provisions but under the newly amended Constitution. Batas Pambansa Blg. 125 called for the election of a President under the newly amended Constitution. President Marcos ran as candidate and was proclaimed the duly elected President of the Philippines by resolution no. 2 of the Batasang Pambansa dated June 21, 1981. He took his oath of office as the duly elected President. The Prime Minister, the Members of the Cabinet and the Executive Committee took their oaths after having been appointed and are now exercising their functions pursuant to the new provisions. We even consider ourselves the Fourth Republic because of a new system of government. What particular part of the newly amended Constitution would Amendment No. 6 fit in? President Ferdinand E. Marcos ceased to be the incumbent resident referred to in the transitory provisions or in the 1976 amendments. The Solicitor General argued that Amendment No. 6 provided for the contingency that the office would be separated consisting of a ceremonial President and a Prime Minister who will be he executive. Yet, without express constitutional grant the President now assumes a power intended to be that of the Prime Minister. The intent of the 1981 amendments could not be interpreted any other way except that after the amendment it would no longer be proper to exercise those reposed upon the Prime Minister. Powers previously reposed upon the Prime Minister were expressly removed from him and given to the President. Amendment No. 6 is not one of those. The proposed amendments under Batasan . No. 104 became Question No. 1 in the ballot of April 7, 1981 plebiscite to which the voter was asked (B.P. Blg. 122): Do you vote for the approval of an amendment to the Constitution and to Amendment No. 2, as proposed by the Batasang Pambansa in Resolution No. 2, which, in substance, calls for the establishment of a modified parliamentary system, amending for this purpose Articles VII, VIII and IX of the Constitution, with the following principal features: ... Nowhere in feature (1) was it submitted that the President would enjoy conditional or qualified legislative powers as modified parliamentary system. The original intent to set out the original act or section as amended is most commonly indicated by a statement in the amendatory act that the original law is amended to "read as follows." The new statute is a substitute for the original act or section. Only those provisions of the original act or section repeated in the amendment are retained (Paras vs. Land Registration Commission, July 26, 1960, L-16011). That "The Legislative power shall be vested in the Batasang Pambansa" is an old provision which has been retained. This in essence was Question No. 1 in the April 7 Plebiscite as to who exercise legislative powers and who are to execute. Nowhere in the approved Amendment can it be hinted that the hybrid-type of government also includes a one-man legislature. The intent to repose legislation only upon the Batasan is very apparent. The adoption of the new Constitution repeals and supersedes all the provisions of the older one not continued in force by the new instrument (16 C.J.S. 88). (Pp. 30-33, Record.) After mature study and deliberation and considering the peculiar circumstances that dictated the formulation of Amendment No. 6, the Court's conclusion is, that Assemblyman-Petitioners posture lacks, to say the least, sufficient merit.

Constitutional law is not simply the literal application of the words of the Charter. The ancient and familiar rule of constitutional construction that has consistently maintained its intrinsic and transcendental worth is that the meaning and understanding conveyed by the language, albeit plain, of any of its provisions do not only portray the influence of current events and developments but likewise the inescapable imperative considerations rooted in the historical background and environment at the time of its adoption and thereby caused their being written as part and parcel thereof. As long as this Court adheres closest to this perspective in viewing any attack against any part of the Constitution, to the end of determining what it actually encompasses and how it should be understood, no one can say We have misguided Ourselves. None can reasonably contend We are treading the wrong way. True enough Article VIII, Sec. 1 of the Philippine Constitution as amended in 1981 explicitly ordains that "(T)he legislative power shall be vested in a Batasang Pambansa". Section 2, however, readily reveals that the Batasang Pambansa contemplated in that Section 1 is the regular assembly (formerly referred to as National Assembly, now as Batasang Pambansa evidently to indigenize the nomenclature, which, incidentally should have been done also with the Pangulo and Pangunang Ministro), to be elected in May 1984, per Sec. 5(1) of the same Article. Thus, to begin with, in the instant case, We must keep in mind that at least for the present and until 1984, what can be properly discussed here are only the legislative powers of the interim Batasang Pambansa as such. Without intending any reflection on any of those responsible for the Idea, it may be that it is for non-essential reasons that the current legislative assembly is being referred to generally simply as the Batasang Pambansa. For in legal truth and in actual fact, and as expressly admitted by petitioner, it is inherently no more no less than the same interim. Batasang Pambansa created by Amendment No. 2 by virtue of the Referendum-Plebiscite of October 16-17, 1976. And, in this connection, it may be observed that indubitably, and as a necessary and logical consequence, the amendment of Amendment No. 2 in 1981 carried with it the corresponding appropriate adjustments literal and otherwise of Amendment Nos. 3 and 4, although these latter two were not specifically mentioned in the proposal pursuant to BP-CA Resolution No. 4 of the Batasan, acting as a constituent body nor in the Plebiscite Referendum Act itself, much less in the ballots presented to and used by the voters. This is because it cannot be denied that Amendments 3 and 4 are by their very nature inseparable parts of amendment No. 2. But examining closely how the 1981 amendments altered Amendment No. 2, it will be readily seen that the only change consisted of the non-inclusion of the "incumbent President" as member of the assembly in pursuance of the fundamental objective to separate the Presidency from the regular legislative body and thereby establish in our country a modified form of parliamentary government more appropriate for and suitable to the peculiar conditions of our political development and the idiosyncrasies of our people, and at the same time introduce into it features that would strengthen its structure so as to enable the government to cope with emergencies or abnormal situations, not only like those that presently exist but even those that might arise in the future. Thus, it is characterized with a presidency more powerful than the idea of a strong President desired by President Quezon and actually embodied in the 1935 Constitution. It is, therefore, evident that the reference to Amendment No. 2 in the amendments of 1981 was not intended at all to convert or upgrade the present existing assembly into the regular Batasang Pambansa. To repeat, what we have now is still the interim Batasang Pambansa created in 1976. Importantly, it must be said that had the present Batasan, acting as a constituent body, ever thought of making itself the regular National Assembly, the very odious spectacle that the people rejected when in the referendum of January 10-15, 1973 they repulsed and repudiated the interim National Assembly provided for in Sections 1 and 2 of Article XVII (Transitory Provisions) of the 1973 Constitution whereby the members of the old Congress of the Philippines made themselves automatically members of the interim assembly would have resuscitated, and we can readily imagine how the reaction of our people would have been exactly the same as in 1973 and for sure the 1981 proposed constitutional amendment affecting the Batasang would again have been denied sanction by our people. Having arrived at the ineludible that the present Batasan is still interim, it also ineluctably follows that its legislative authority cannot be more exclusive now after 1981 amendments than when it was originally created in 1976. Thus even as the interim Batasan which came into being "in lieu of the Interim National Assembly" by virtue of Amendment No. 2 consequently acquired "the same powers and its Members the same functions, responsibilities, rights and privileges, and disqualifications as the regular National Assembly and the members thereof", there can be no question that coeval with the creation of the interim Batasan, Amendment No. 6 came into force and effect. And Amendment No. 6 mandates in unequivocal and unambiguous terms the grant of concurrent legislative authority to an official (the President [Prime Minister]) who is not in the Batasan itself. In brief, the inexorable logic of the events that brought forth the present Batasan leads to no other conclusion than that the legislative authority vested in it by Amendment No. 2, read together with Section 1, Article XVII and Section 1, of Article VIII of the 1973 Constitution, is subject to the external concurrent legislative prerogative that Amendment No. 6 vests on the "President (Prime Minister)." Actually, the insistence of petitioner that Amendment No. 6 has been repealed by the 1981 amendments springs from another point of view. It is fundamentally based on analysis and ratiocination related to the language and tenor thereof. Petitioner maintains that said amendments vested extraordinary legislative powers on "the President (Prime Minister)" and on nobody else, and since there is no one who is President (Prime Minister) under our present governmental set-up pursuant to 1981 amendments, no one in the existing government can exercise said powers.

The persuasive force of such theory is more apparent than real. As We have said earlier, the Constitution is not merely a literal document to be always read according to the plain and ordinary signification of its words. Beneath and beyond the literal terms of the Charter, like a mine of incalculably immense treasures, are elements and factors radiating from political and economic developments of the situation prevailing at the time of the inclusion of any particular provision thereof or amendment thereto. It is only from the light of the implications of such elements and factors that the real essence and significance of the words of the constitutional provision under scrutiny can be properly and adequately seen and comprehended. With reference to Amendment No. 6, it is of decisive importance that anyone who would try to decipher its true import should be acquainted with its ration d'tre, i.e., the whys and the wherefores thereof. Contrary to the imputations of petitioner, this amendment is not rooted in the authoritarian, much less dictatorial tendencies or inclinations of anyone. Any tinge or tint of authoritarianism in it is not there for the sake of the Ideology of dictatorship or authoritarian itself. Such hue of a one-man authoritarianism it somehow connotes is there only because it is so dictated by paramount considerations that are needed in order to safeguard the very existence and integrity of the nation and all that it stands for. Perhaps the truismalmost a dogmawell recognized by constitutionalists and political scientists of all persuasions as a convenient pragmatic rule for survival of nations, namely, that in an emergency, the best form of government is a dictatorship, might have been in the mind of those who formulated it, but it is quite obvious, as will be explained anon, that other fundamental factors must have been taken into account in order precisely to minimize the rigors and generally feared oppressiveness of a dictatorship in an unrestricted martial regime, its being dubbed as martial law "Philippine style" notwithstanding. At this juncture, it must be emphatically made clear that explicitly the power that Amendment No. 6 vests upon the "President (Prime Minister)" are to be exercised only on two specified occasions, namely, (1) "when in (his judgment) a grave emergency exists or there is a threat or imminence thereof" and (2) "whenever the interim Batasang Pambansa or the regular National Assembly (now regular Batasang Pambansa) fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action." The power is to "issue necessary decrees, orders, or letters of instruction which shall form part of the law of the land." As the tenor of the amendment readily imparts, such power may be exercised even when the Batasan is in session. Obviously, therefore, it is a power that is in the nature of the other Powers which the Constitution directly confers upon the President or allows to be delegated to him by the Batasan in times of crises and emergencies. Indeed, it is but fitting and proper that in framing the fundamental law of the land which sets up a form of government and defines and delimits the powers thereof and its officers, reserving as they must plenary sovereignty to themselves, the people should prudently provide what powers may and should be exercised by the government and/or its officials in times of crises and emergencies that could jeopardize the very life and/or territorial integrity of the country. Even as individual rights and liberties are valued and enshrined as inviolable, the people, as they write their Charter thru a convention or other legitimate means, cannot ignore that in the event of war, insurrection, rebellion or invasion, including any other critical situation, any one of which cannot but affect the regular course of normal constitutional processes and institutions as well as the prerogatives and freedoms of individual citizens of and inhabitants within the country, appropriate protective, defensive and rehabilitative measures must be provided therein and may be made to function or operate. Accordingly, both in the 1935 Constitution of the Philippines and in that of 1973, the following provisions were precisely intended to operate during such perilous situations: 1. In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment. The 1935 version of this provision differs from it in that what was granted to the President was not the broad authority "to exercise such powers necessary and proper" but only to issue rules and regulations purported to accomplish the same objective. 2. Section 10(2) of Article VII of the 1935 Constitution provided thus: ... (2) The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under the martial law... Under Section 12 of Article IX of the 1973 Constitution, exactly the same powers were conferred on the Prime Minister. However, what is now Section 9 of Article VIII under the 1981 amendments transferred all said powers to the President. As can be seen, as authorized by the Commander-in-Chief clause of all our Constitutions, there have been as there still are three other measures that may be resorted to during an emergency, namely:

(1) Call out such armed forces to prevent or suppress lawless violence, invasion, insurrection or rebellion or imminent danger thereof, when public safety requires it; (2) Suspend the privilege of the writ of habeas corpus, and (3) Place the Philippines or any part thereof under martial law. It appears, therefore, that within the four corners of the Constitution itself, whether that of 1935 or that of 1973, there were four constitutionally designed ways of coping with abnormal situations in the country, namely: (1) the so-called emergency powers delegated by the assembly to the President; (2) the calling of the armed forces; (3) the suspension of the privilege of the writ of habeas corpus and (4) the placing of the country or any part thereof under martial law. Understandably, it is to be supposed that these measures are to be resorted to one after the other according to the degree of gravity of the situation. A backward glance at our past experiences since the implantation of American sovereignty in our country at the turn of the century should remind us that at one time or another all of these four measures have been resorted to, albeit martial law proclamations in the long past were limited in area and duration because of the localized nature of the disturbances they were meant to remedy. Bearing all the foregoing considerations in mind, the question that naturally arises at this juncture is what need is there for the power contemplated in Amendment No. 6? Why does the country have to have a one-man legislating authority concurrent with the Batasang Pambansa? Are the above-discussed safeguards not enough? At this point, it must be noted that Amendment No. 6 does not refer only to the interim Batasang Pambansa but also to the regular "National Assembly" (now Batasang Pambansa), a consideration which lends force to the conclusion that the 1981 amendments could not have been intended nor understood to do away with it. What, indeed, is the fundamental ration d'tre of Amendment No. 6? It is to be recalled that the said amendment was formulated in October 1976, more than fully four years after the whole Philippines was first placed under martial law pursuant to Proclamation 1081 dated September 21, 1972. True, without loss of time, President Marcos made it clear that there was no military take-over of the government, and that much less was there being established a revolutionary government, even as he declared that said martial law was of a doublebarrelled typed, unfamiliar to traditional constitutionalists and political scientists for two basic and transcendental objectives were intended by it: (1) the quelling of nationwide subversive activities characteristic not only of a rebellion but of a state of war fanned by a foreign power of a different Ideology from ours, and not excluding the stopping effectively of a brewing, if not a strong separatist movement in Mindanao, and (2) the establishment of a New Society by the institution of disciplinary measures designed to eradicate the deep-rooted causes of the rebellion and elevate the standards of living education and culture of our people, and most of an the social amelioration of the poor and underprivileged in the farms and in the barrios, to the end that hopefully insurgency may not rear its head in this country again. The immediate reaction of some sectors of the nation was of astonishment and dismay, for even if everyone knew that the gravity of the disorder, lawlessness, social injustice, youth and student activism and other disturbing movements had reached a point of peril, they felt that martial law over the whole country was not yet warranted. Worse, political motivations were ascribed to be behind the proclamation, what with the then constitutionally unextendible term of President Marcos about to expire, and this suspicion became more credible when opposition leaders and outspoken antiadministration media people who did not hesitate to resort even to libel were immediately placed under indefinite detention in military camps and other unusual restrictions were imposed on travel, communication, freedom of speech and of the press, etc. In a word, the martial law regime was anathema to no small portion of the populace. Criticisms or objections thereto were, of course, mostly covert, but there were even instances of open resistance. Truth to tell, martial law is generally unwelcome anywhere in the world. And when it is prolonged without anyone knowing when it would be lifted, the feeling of discontent grows and spreads. Indeed, it is difficult to describe fully in an opinion like this all that many consider obnoxious in martial law. Suffice it to say that the New Society that came out of it did have its laudatory features appreciated by large segments of the people, but with many cases of abuses of the military marring such receptive attitude, the clamor for the early lifting of martial law became more and more audible. We can definitely say that no one more than President Marcos was aware of those feelings and sentiments and, in fact, even of the undercurrents of resistance. And as We visualize the situation he found himself in, he was faced with no less than a dilemma. He was convinced of the advantages, not personally to him, but to general welfare of martial law, but at the same time he was also conscious that martial law, in any form call it Philippine style, smiling, benign or with any other euphemistic adjective was growing to be more and more distasteful. Even the New Society it was supposed to bring about was slowly losing its splendor. Backsliding was creeping in some ways, discipline was loosening. But over and above all such adverse developments, the perils to national security and public order still remained, if in a slightly lesser degree.

It was in the light of the above circumstances and as a means of solving the dilemma aforementioned that the concept embodied in Amendment No. 6 was born. In brief, the central Idea that emerged was that martial law may be earlier lifted, but to safeguard our country and people against any abrupt dangerous situation which would warrant the exercise of some authoritarian powers, the latter must be constitutionally allowed, thereby to obviate the need to proclaim martial law and its concomitants, principally the assertion by the military of prerogatives that made them appear superior to the civilian authorities below the President. In other words, the problem was what may be needed for national survival or the restoration of normalcy in the face of a crisis or an emergency should be reconciled with the popular mentality and attitude of the people against martial law. We have said earlier that the Constitution has four built-in measures to cope with crises and emergencies. To reiterate, they are: (a) emergency powers expressly delegated by the Batasan; (b) call of the armed forces, who otherwise are supposed to be in the barracks; (c) suspension of the privilege of the writ of habeas corpus; and (d) martial law. Of these four, the people dislike martial law most and would, if possible, do away with it in the Constitution. And the President who first conceived of what is now Amendment No. 6 knew this. Thus, Our understanding of the development of events and attitudes that led to the adoption of Amendment No. 6 is that in addition to the four measures authorized in the body of the charter, this amendment is supposed to be a fifth one purportedly designed to make it practically unnecessary to proclaim martial law, except in instances of actual surface warfare or rebellious activities or very sophisticated subversive actions that cannot be adequately met without martial law itself. Very evidently, the purpose of Amendment No. 6 is that the Philippines be henceforth spared of martial law unless manifest extreme situations should ever demand it. To recapitulate, the amendments of October 1976 were deliberately designed against martial law. The creation thereby of the interim Batasang Pambansa in lieu of the interim National Assembly which never came into being because of vehement and justified popular repudiation thereof was definitely an indispensable step towards the lifting of martial law. Everyone can understand that martial law could not be lifted without a legislative body to make the laws. The legislative authority could not be left in the hands of the President (Prime Minister). It would have been anachronistic to lift martial law and still leave the law-making authority with the President (Prime Minister) alone. Relatedly but more importantly, the vesting of the legislative authority to the interim Batasang Pambansa, without more or exclusively, would have maintained the safeguards of national security only to the four traditional constitutional measures repeatedly discussed above, including martial law. The framers of the amendment realized only too well they had to look for a remedy thereto, the dislike of the people, justified or not, of martial law. And so, to make the proclamation of martial law remotest, but nevertheless enable the government to meet emergencies effectively, they conceived the Idea of granting to the President (Prime Minister) the power endowed to him by Amendment No. 6. Skeptics and hardcore critics of the administration there must be who would sarcastically allude to Amendment No. 6 as martial law just the same but only like a dog with merely another collar. A word of explanation is thus called for of the vital differences between one and the other. The attitude of those who are opposed to Amendment No. 6 must be due to lack of sufficient acquaintance with the real essence of the various constitutionally authorized emergency measures imperatively needed to safeguard the national security and integrity already discussed above. The delegation of legislative power thru the issuance of rules and regulations to carry out a national policy declared by the Batasan has its own virtues as a restrained way of conferring law-making authority to the Executive during an emergency. It is limited, restricted, subject to conditions and temporary. It is obviously the simplest remedy to cope with an abnormal situation resulting in the least violence to revered democratic republican processes constitutionally established. But being purely a political and legislative remedy, it cannot be adequate when lawless violence becomes generalized and public safety is in jeopardy, hence the need to call out the armed forces. And when such situation still aggravates to the point of requiring the preventive incarceration or detention of certain leaders or over active elements, it becomes inevitable to suspend the privilege of the writ of habeas corpus. Should matters really go out of hand even after the putting into effect of the measures aforementioned, under the constitution. without Amendment No. 6, the only recourse would be to proclaim martial law. But inasmuch as martial law is an extreme measure that carries with it repressive and restrictive elements unpopular to liberty loving and democratically minded sectors of the country, it is but natural to think of it only as a very last resort. Well, it is to avoid the necessity of resorting to the proclamation of martial law that Amendment No. 6 was conceived. Paraphrasing President Marcos himself, martial law is the law of the gun, that implies coercion and an active and direct role in the government by the military. Thus, the virtue of Amendment No. 6 is that such undesirable features of martial law do not have to accompany the exercise of the power thereby conferred on the Executive. To be sure, the calling out of the armed forces and the suspension of the privilege of the writ of habeas corpus, which are concomitants of martial law, may be left out or need not be resorted to when the President acts by virtue of such power. It is, therefore, evident that it is grossly erroneous to say that Amendment No. 6 is in reality no less than disguised martial law. Apparently conceding, at least in gratia argumenti, the truth and the logic of all the foregoing discussion and conclusions, petitioner raises the question of how can Amendment No. 6 fit into the new set up under the 1981 amendments, which

abolished the dual position of President Marcos of President-Prime Minister mandated by the 1976 Amendment No. 3. According to petitioner, President Marcos is President now (no longer President-Prime Minister) pursuant to the 1981 amendments and by virtue of his election as such as proclaimed by the Batasan on June 21, 1981. Not without a bit of sarcasm, petitioner even refers to the reference to the status of our government after the inauguration of President Marcos as the Fourth Republic. How then, petitioner asks, can the President of the Fourth Philippine Republic exercise powers granted to the President-Prime Minister of the provisional government established by the Transitory Provisions and conferred upon him only by Amendment No. 6 of October 1976? If We go solely by the rules of literature, a considerable degree of plausibility, as We have intimated earlier in this opinion, may be conceded to the pose of petitioner. It indeed seems that since the positions of President and Prime Minister have been separated by the 1981 amendments and the same do not state to whom the power under Amendment No. 6 would appertain, neither the present President nor the present Prime Minister can exercise such power. But again, We hold that petitioner is laboring under a misconception of facts and of the principles of constitutional construction. Earlier hereinabove, We discoursed on the inevitability of the conclusion that the current Batasan, being merely interim "in lieu of the interim National Assembly" established under Section 1 of the Transitory Provisions, it is subject to the provisions of Amendment No. 6 which was approved and ratified together with the creation of the Batasan. We have also made a rather extensive exposition of the whys and wherefores behind Amendment No. 6. As may be noted, the ultimate thrust of Our discussion is to establish as a legal proposition that behind and beneath the words of the amendment, the literal reference to "the President (Prime Minister)" in Amendment No. 6 was the intention to make such reference descriptive of the person on whom is vested the totality of the executive power under the system of government established thereby. For as a matter of general principle in constitutional law, belonging as he does to the political department of the government, it is only with such official that, the high prerogative of policy determination can be shared. And in this connection, it is very important to note that the amendment does not speak of the "incumbent President" only, as in the other amendments, like Nos. 1, 3 and 5, but of the President, meaning to include all future presidents. More, Amendment No. 6 makes mention not only of the interim Batasan but also of the regular one. All these unmistakably imply that the power conferred upon the President thereby was not for President Marcos alone but for whoever might be President of the Philippines in the future. As to the parenthetical mention therein of the Prime Minister, We are of the considered view that it was necessary to do so because under the governmental system then, which was markedly Prime Ministerial, the substantive executive powers were vested in the Prime Minister, the President being merely the symbolical and ceremonial head of state, and the two positions were being held by one and the same person. In other words, the power was contemplated to be conferred upon whomsoever was vested the executive power, and that is as it should be, for, to reiterate, from the very nature of the power itself, the authority to legislate should be allowed, if at all, to be shared only with one in the political department, directly deriving power from the vote of the people. Withal, as the Solicitor General aptly posits, it is neither sound nor in consonance with well and long settled principles of constitutional construction to recognize amendments or repeals of constitutional provisions by implications, specially in regard to a transcendental matter as that herein under discussion. Indeed, the fact that Amendment No. 6 was not in any way or sense mentioned in the amendments submitted to the people for ratification in 1981 and there being nothing in the latter intrinsically inconsistent with the former, it is safe to conclude that it would be deceiving the people themselves and depriving them of something they had decided in 1976 to be part of the fundamental law of the land to now eliminate the power conferred by them upon the Executive of sharing legislative authority with the Batasan on appropriate occasions of emergency and urgency. Anent petitioner's claim that the President may not constitutionally grant the amnesty provided for in P.D. 1840, to Our mind, the following well taken brief answer of the Solicitor General, with whom We fully agree, is more than sufficient to dispose of the same adversely to petitioner's stance: Petitioner argues that Presidential Decree 1840 is likewise invalid for it did not enjoy the concurrence of the Batasan. He relies on Article VII, Section 11 of the Constitution which provides that The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and with the concurrence of the Batasang Pambansa, grant amnesty. Again, we beg to disagree. Article VII, sec. 11, applies only when the President is exercising his power of executive clemency. In the case at bar, Presidential Decree 1840 was issued pursuant to his power to legislate under Amendment No. 6. It ought to be indubitable that when the President acts as legislator as in the case at bar, he does not need the concurrence of the Batasan. Rather, he exercises concurrent authority vested by the Constitution. We cannot close this opinion without underscoring the patent tendency and unrelenting effort of the leadership of the country to make our government and our way of life indigenously Filipino as much as it is possible to make them so. It has, of course, tried its utmost to see what is good in other lands, but it has chosen generally to bring out what is best in our own traditions, usages, customs and systems that have proven efficacious and beneficial during the times of our

forebears. The sanggunians and barangays, which have inherited from the Filipinos of the past and that have been institutionalized in Constitutional Amendment No. 7 of 1976 have, as everyone can see, proven to be unshakable bedrocks for the foundation of duly constituted governmental authority with firm nationwide mass base. Our present government, if in some ways similar to any foreign one, is in truth a product of our own genius in political science and matters of government. Nowhere else in the world but in the Philippines are martial law decrees and acts subject to the judicial scrutiny of the Supreme Court. Amendment No. 6 is of the same strain. It is our native and indigenous way of coping with crucial situations. We are Filipinos, so much so that the writer of this opinion has purposely avoided reference to, much less lifted quotations from alien jurisprudence and authorities. If only in this particular case, it is but appropriate to use language and style of our own. All the above premises taken into account. Our considered conclusion and judgment is that Amendment No. 6 of October 1976 of the Constitution of 1973 has not been in anyway altered or modified, much less repealed by the constitutional amendments of 1981. WHEREFORE, the petition is dismissed. No costs. Separate Opinions AQUINO, J., concurring: I concur. Amendment No. 6 qualifies or limits Amendment No. 5, which provides that "the incumbent President shall continue to exercise legislative powers until martial law shall have been lifted". Hence, Amendment No. 6 should be read as if it begins with the clause: "However, despite the lifting of martial law, ..." ABAD SANTOS, J., concurring: I concur in the result. I should state that as Secretary of Justice I participated in the drafting of the 1976 Amendment to the Constitution; that Amendment No. 6 was intended to give to the President (Prime Minister) the power to issue decrees, etc. subject to the conditions specified therein even after the lifting of martial law as shown by the fact that it is not only the interim Batasang Pambansa which is mentioned but also the regular National Assembly; that the words President (Prime Minister) were used in Amendment No. 6 (and also in Amendment No. 4) simply because at that time both positions were occupied by the incumbent President; that the fact that at present one person is President and another person is Prime Minister does not mean the President has lost his power under Amendment No. 6 for that power was intended to be used by the head of government; and that what has to be borne in mind is that the structure of the government at Present is essentially that of the presidential type for the President is both head of state and head of government while the Prime Minister, despite his lofty title, is but an alter ego of the President. DE CASTRO, J.: concurring: The only issue raised by petitioner to which I wish to address myself in this separate opinion, being in full concurrence with how the other issues are disposed of in the majority opinion, is whether Amendment No. 6 (1976) is still in force after the 1981 Amendments to the 1973 Constitution. Amendment No. 6 reads: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the Interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land. What should be emphatically pointed out is that the effectiveness of this provision is intended to continue into the future, even beyond the regime of the interim national assembly (Batasan Pambansa), as a wise and permanent feature of Our constitutional system. This is clear from the reference made therein of the regular National Assembly, the lifetime of which is without a pre-fixed limit, as is the very existence of the Republic itself. If for this reason alone, its abrogation or elimination from the Constitution of which the original intention was to make it a part and parcel, may be effected only by no less than a clear and express repeal. No such mode of repeal is discoverable from the 1981 amendments of the Constitution. Petitioner would, however, see a repeal by "omission." I fail to see such kind of repeal. The power granted by Amendment No. 6 is, by its language, to be exercised by the "President (Prime Minister)." These words are interpreted by petitioner as meaning that only when the President is at the same time the Prime Minister, which can only refer to President Ferdinand E. Marcos, may the power granted by Amendment No. 6 be deemed to remain effective. But when, as it happened after the 1981 amendments and the last presidential elections, the two offices had ceased to be combined or unite in the person, of President Marcos, the office of Prime Minister being now held by another official, Prime Minister Cesar Virata, the power conferred by Amendment No. 6

may no longer be exercised by any official and therefore the amendment is deemed erased from the Constitution. This is a most simplistic interpretation that does not do justice to the transcendentally important objectives of the amendment. It is here where I would wish to express my view that in using the words "President (Prime Minister)" in Amendment No. 6, the intent is for the President to exercise the power while he is in possession of the high executive prerogatives, but when there shall be a regular Prime Minister, it is to the latter that the power would pertain not to the President anymore, because under the Constitution at the time the 1976 Amendments were adopted it was envisioned that the President would be vested only with essentially ceremonial powers, the highest executive powers to be then exercised by the Prime Minister. The word "Prime Minister" immediately following the word "President", but enclosed in parenthesis was therefore, meant to indicate that when the change will take place whereby the Prime Minister takes over the executive powers from the President, then it is the former, not the latter, who would exercise the power defined in Amendment No. 6, to obviate thereby the need of a new amendment. The word "President" would automatically be replaced by the word "Prime Minister", thus continuing in force the provision of Amendment No. 6. To my mind, this is the more reasonable interpretation than to say that the aforementioned words were merely descriptive of the actual nature of the position held by the "incumbent President" as, indeed only the incumbent President could possibly combine the two positions in his single personality. If this were the intention, there would have been no need to enclose the word "Prime Minister" in parenthesis. In doing so, the intention is made clear that it is the Prime Minister who automatically takes over the exercise of the power when the President is stripped of real executive power and vested with mainly ceremonial powers, as obtains in most parliamentary governments. With the intent as above indicated thus so clearly manifested the 1981 amendment, far from repealing Amendment No. 6 by omission as petitioner contends, should be construed as having the effect of vesting the power defined therein in the Chief Executive as now provided in the 1981 amendments. This official is none other than the President to whom were transferred the powers originally intended to be vested in the Prime Minister as the chief executive official in a parliamentary system that the 1973 Constitution, at the beginning, intended to establish for our government. The President would accordingly be the proper official to exercise the power granted by Amendment No. 6 which, by its intrinsic provision, should be maintained in effect by all reasonable intendment rather than deemed repealed only by implication which is never favored. The view herein expressed would, in my humble opinion, accord more to how the people voted for the amendments of 1981 who, it may be safe to assert, never had the least intent, to erase Amendment No. 6 from the Constitution which in 1976, they solemnly resolved to permanently enshrine as a new but wise and transcendentally desirable concept of constitutional power of legislation, dictated by the highest interest of national welfare and security. Much less had they any awareness that by voting for the amendments, they would be voting for the elimination of Amendment No. 6 from the Constitution, for such a result was never given to their conscious understanding. It is fundamental in the interpretation of statutes and Constitutions that what is controlling is the legislative intent, or the intent of those who enact the law or the Constitution, who, in the case of the latter, are mainly the people without whose ratification any amendment proposed by the constituent body would be of no effect. The petitioner himself seems ready to be counted among those who would not question the wisdom and urgent need of Amendment No. 6, reason for which the majority opinion may have been needlessly over-burdened with a lengthy discourse over the reasons behind, and justification for, the adoption of Amendment No. 6 which were supposed to have been known by all before the people went to the polls to vote for its ratification. This I say, with apologies to the learned ponente, and hasten to admit that the disquisition is delectably erudite and scholarly. For the petitioner himself said: "Whether the matter or that there was an emergency which required immediate action, let it be conceded that in the judgment of the President such facts do exists." If he now questions the constitutionality of Amendment No. 6, it is more on ground of form rather than of substance, based merely on his feeling of skepticism that it no longer fits into the pattern or format of the 1973 Constitution as amended on April 7, 1981. Fernando, C.J., concurs and reserves the right to file a brief statement of his views.

Separate Opinions AQUINO, J., concurring: Amendment No. 6 qualifies or limits Amendment No. 5, which provides that "the incumbent President shall continue to exercise legislative powers until martial law shall have been lifted". Hence, Amendment No. 6 should be read as if it begins with the clause: "However, despite the lifting of martial law, ..." ABAD SANTOS, J., concurring: I concur in the result. I should state that as Secretary of Justice I participated in the drafting of the 1976 Amendment to the Constitution; that Amendment No. 6 was intended to give to the President (Prime Minister) the power to issue decrees, etc. subject to the conditions specified therein even after the lifting of martial law as shown by the fact that it is

not only the interim Batasang Pambansa which is mentioned but also the regular National Assembly; that the words President (Prime Minister) were used in Amendment No. 6 (and also in Amendment No. 4) simply because at that time both positions were occupied by the incumbent President; that the fact that at present one person is President and another person is Prime Minister does not mean the President has lost his power under Amendment No. 6 for that power was intended to be used by the head of government; and that what has to be borne in mind is that the structure of the government at Present is essentially that of the presidential type for the President is both head of state and head of government while the Prime Minister, despite his lofty title, is but an alter ego of the President. DE CASTRO, J.: concurring: The only issue raised by petitioner to which I wish to address myself in this separate opinion, being in full concurrence with how the other issues are disposed of in the majority opinion, is whether Amendment No. 6 (1976) is still in force after the 1981 Amendments to the 1973 Constitution. Amendment No. 6 reads: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the Interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land. What should be emphatically pointed out is that the effectiveness of this provision is intended to continue into the future, even beyond the regime of the interim national assembly (Batasan Pambansa), as a wise and permanent feature of Our constitutional system. This is clear from the reference made therein of the regular National Assembly, the lifetime of which is without a pre-fixed limit, as is the very existence of the Republic itself. If for this reason alone, its abrogation or elimination from the Constitution of which the original intention was to make it a part and parcel, may be effected only by no less than a clear and express repeal. No such mode of repeal is discoverable from the 1981 amendments of the Constitution. Petitioner would, however, see a repeal by "omission." I fail to see such kind of repeal. The power granted by Amendment No. 6 is, by its language, to be exercised by the "President (Prime Minister)." These words are interpreted by petitioner as meaning that only when the President is at the same time the Prime Minister, which can only refer to President Ferdinand E. Marcos, may the power granted by Amendment No. 6 be deemed to remain effective. But when, as it happened after the 1981 amendments and the last presidential elections, the two offices had ceased to be combined or unite in the person, of President Marcos, the office of Prime Minister being now held by another official, Prime Minister Cesar Virata, the power conferred by Amendment No. 6 may no longer be exercised by any official and therefore the amendment is deemed erased from the Constitution. This is a most simplistic interpretation that does not do justice to the transcendentally important objectives of the amendment. It is here where I would wish to express my view that in using the words "President (Prime Minister)" in Amendment No. 6, the intent is for the President to exercise the power while he is in possession of the high executive prerogatives, but when there shall be a regular Prime Minister, it is to the latter that the power would pertain not to the President anymore, because under the Constitution at the time the 1976 Amendments were adopted it was envisioned that the President would be vested only with essentially ceremonial powers, the highest executive powers to be then exercised by the Prime Minister. The word "Prime Minister" immediately following the word "President", but enclosed in parenthesis was therefore, meant to indicate that when the change will take place whereby the Prime Minister takes over the executive powers from the President, then it is the former, not the latter, who would exercise the power defined in Amendment No. 6, to obviate thereby the need of a new amendment. The word "President" would automatically be replaced by the word "Prime Minister", thus continuing in force the provision of Amendment No. 6. To my mind, this is the more reasonable interpretation than to say that the aforementioned words were merely descriptive of the actual nature of the position held by the "incumbent President" as, indeed only the incumbent President could possibly combine the two positions in his single personality. If this were the intention, there would have been no need to enclose the word "Prime Minister" in parenthesis. In doing so, the intention is made clear that it is the Prime Minister who automatically takes over the exercise of the power when the President is stripped of real executive power and vested with mainly ceremonial powers, as obtains in most parliamentary governments. With the intent as above indicated thus so clearly manifested the 1981 amendment, far from repealing Amendment No. 6 by omission as petitioner contends, should be construed as having the effect of vesting the power defined therein in the Chief Executive as now provided in the 1981 amendments. This official is none other than the President to whom were transferred the powers originally intended to be vested in the Prime Minister as the chief executive official in a parliamentary system that the 1973 Constitution, at the beginning, intended to establish for our government. The President would accordingly be the proper official to exercise the power granted by Amendment No. 6 which, by its intrinsic provision, should be maintained in effect by all reasonable intendment rather than deemed repealed only by implication which is never favored. The view herein expressed would, in my humble opinion, accord more to how the people voted for the amendments of 1981 who, it may be safe to assert, never had the least intent, to erase Amendment No. 6 from the Constitution which in

1976, they solemnly resolved to permanently enshrine as a new but wise and transcendentally desirable concept of constitutional power of legislation, dictated by the highest interest of national welfare and security. Much less had they any awareness that by voting for the amendments, they would be voting for the elimination of Amendment No. 6 from the Constitution, for such a result was never given to their conscious understanding. It is fundamental in the interpretation of statutes and Constitutions that what is controlling is the legislative intent, or the intent of those who enact the law or the Constitution, who, in the case of the latter, are mainly the people without whose ratification any amendment proposed by the constituent body would be of no effect. The petitioner himself seems ready to be counted among those who would not question the wisdom and urgent need of Amendment No. 6, reason for which the majority opinion may have been needlessly over-burdened with a lengthy discourse over the reasons behind, and justification for, the adoption of Amendment No. 6 which were supposed to have been known by all before the people went to the polls to vote for its ratification. This I say, with apologies to the learned ponente, and hasten to admit that the disquisition is delectably erudite and scholarly. For the petitioner himself said: "Whether the matter or that there was an emergency which required immediate action, let it be conceded that in the judgment of the President such facts do exists." If he now questions the constitutionality of Amendment No. 6, it is more on ground of form rather than of substance, based merely on his feeling of skepticism that it no longer fits into the pattern or format of the 1973 Constitution as amended on April 7, 1981.

G.R. No. 148445

February 16, 2004

ABELARDO V. SEVILLA, petitioner, vs. LORMA F. GOCON, respondent. PANGANIBAN, J.: For his failure to observe and promote a high standard of ethics, petitioner may be held liable for violation of the Ethical Standards Law and administratively sanctioned therefor. The Case Before the Court is a Petition for Review 1 under Rule 45 of the Rules of Court, seeking to set aside the November 17, 2000 Decision2 of the Court of Appeals (CA) in CA-GR SP No. 57369. The dispositive part of the Decision reads: "WHEREFORE, the petition is DENIED for lack of merit. We affirm the Resolutions of the Civil Service Commission. Costs against petitioners." 3 The Civil Service Commission Resolution,4 upheld by the CA, had disposed as follows: "WHEREFORE, Abelardo V. Sevilla and Godofredo M. Limbo are hereby found guilty of Dishonesty. Accordingly, they are meted out the penalty of dismissal from the service with all its accessory penalties. "Let a copy of this Resolution be furnished the Office of the Ombudsman for whatever criminal action it may take under the premises."5 The Facts The CA summarized the facts in this manner: "The present controversy has its origin in the complaint filed by Lorma F. Gocon on October 14, 1997 with the Civil Service Commission (CSC) charging Abelardo V. Sevilla and Godofredo M. Limbo of falsification of official document, dishonesty and conduct prejudicial to the best interest of the service. "Limbo filed his Comments on the complaint on November 17, 1997. Sevilla filed his Answer on December 4, 1997. "The facts as found by the CSC are as follows: As appearing from the records, Gocon, Guidance Counselor III, was designated as Chairman of the Values Education Department in 1989. On the other hand, Limbo was a former Head Teacher III in the Practical Arts Department [of the Quezon National High School in Lucena City].

Records reveal that Respondent Sevilla, in a letter dated December 9, 1993 to the Regional Director, Department of Budget and Management, requested for the reclassification of eight (8) items of Secondary Head Teacher III to Secondary Head Teacher VI. Apparently, said request contains super impositions/erasures, specifically item 7, wherein the Practical Arts Department was replaced to Values Department with Godofredo Limbo as the alleged Secondary Head Teacher (Head Teacher III) thereof with 28 teachers under his supervision when in truth he was the Head Teacher of the Practical Arts Department which was later merged with the Home Economics Department. By virtue of this representation, Limbo was issued an appointment as Head Teacher VI for Values Education on November 16, 1994. On October 25, 1996, Respondent Sevilla, in his capacity as Principal IV, requested the Office of the Regional Director, DECS Region IV, for the upgrading of Gocons position of Guidance Counselor III to Head Teacher VI for Values Education. In said request, Sevilla represented as follows: This request is being made so that the Values Education Department of Quezon National High School will have its own Head Teacher. This Department has been supervised for almost eight (8) years since the implementation of the New Secondary Education Curriculum by the incumbent Chairman. In this connection, the undersigned would like to strongly recommend that Values Education Department be given a regular Head Teacher Position for the following reasons: x x x x x x x x x On March 25, 1997, Assistant Secretary Josefina Nisperos of the Department of Education, Culture and Sports denied the aforesaid request. Sometime in May, 1997, Gocon discovered that Limbo was appointed as Head Teacher VI for Values Education on November 16, 1994. When asked about said appointment, Sevilla explained to Gocon that Limbo was temporarily designated as Head Teacher for Values Education so that all Head Teacher items would be reclassified by DECS Regional Office IV. Dissatisfied with the explanation of Sevilla, Gocon filed a complaint and requested the intercession of the then DECS Secretary Ricardo T. Gloria regarding the matter. In a letter dated June 20, 1997 to the Regional Director, DECS Region IV, Sevilla explained as follows: Mr. Godofredo Limbo the Vocational Dept. Head III was one of those Head Teacher III whose item was upgraded to Head Teacher VI in 1994. The undersigned acceded to the suggestion of Mr. Leovigildo Arellano, Chief, Management Division, DECS to temporarily designate Mr. Limbos item as Values item for purposes of upgrading the item or else the upgrading of all the Head Teacher III item to Head Teacher VI could not be favorably acted upon and approved. However, in a First Indorsement dated July 15, 1997 to the Director IV, DECS Region IV, Leovigildo Arellano, Chief, Management Division, DECS claimed among others, as follows: I strongly deny the allegation of Mr. Sevilla that I suggested to him to temporarily designate Mr. Limbos appointment item as Values item" I do not know personally Mr. Sevilla, hence, I have no reason to make such suggestion to him knowing that such act is a clear falsification of public documents. And I do not remember having met him. In their Memorandum, Limbo acknowledged that he was the one who made alterations in the December 9, 1993 request for reclassification. He stressed, however, that he initialed all the corrections he made to show that he was in good faith in doing so and that he acted upon the suggestion of Monina Belen, as staff of Leovigildo Arellano at the DECS Management Division. "In her complaint with the CSC, complainant imputes upon Sevilla: 1) the act of misrepresentation amounting to dishonesty and falsification of official document for representing to the DECS in the letter dated December 9, 1993 that Limbo was Head Teacher III for the Values Education Department and was supervising 28 Values Education teachers when in fact he was appointed Head Teacher for Practical Arts (Boys) and was performing the function of such position; 2) grave misconduct for allowing Limbo to use the item for Head Teacher VI and claiming that he acceded to the suggestion of Mr. Arellano for the temporary use of the said item who denied having done so; and 3) conduct grossly prejudicial to the best interest of the service for concealing Limbos appointment deceiving complainant into thinking that she was being recommended for Head Teacher VI and causing resentment to faculty members of QNHS; and upon Limbo the act of dishonesty and grave misconduct for conniving with Sevilla in representing himself as Head Teacher for Values Education and knowingly and deliberately accepting his appointment as Head Teacher VI knowing that he was not qualified for the position and for allowing complainant to continue acting as Chairman of the Values Education Department despite his appointment. "Complainant likewise filed a complaint with the Office of the Deputy Ombudsman for Luzon for violation of the Anti-Graft Law and Article 171 of the Revised Penal Code for falsification of official documents. Criminal Case No. 98-757 for

falsification of official documents was filed against Sevilla and Limbo with the Regional Trial Court, Branch 53, Lucena City which however dismissed the case for lack of jurisdiction on October 20, 1999. "In the CSC case, respondents Sevilla and Limbo were formally charged on February 11, 1998 by the Civil Service Commission Regional Office No. IV of falsification of official documents, dishonesty and conduct prejudicial to the best interest of the service. "Hearings were conducted and the parties presented their respective evidence. Thereafter, complainant and respondents filed their respective memoranda on December 16, 1998 and December 15, 1998. "Meanwhile, in his letter to Gocon dated May 12, 1998, Sevilla relieved Gocon as Chairman of the Values Education Department. "On November 17, 1999, the CSC issued Resolution No. 992559, to wit: WHEREFORE, Abelardo V. Sevilla and Godofredo M. Limbo are hereby found guilty of Dishonesty. Accordingly, they are meted out the penalty of dismissal from the service with all its accessory penalties. concluding that Sevillas knowledge of the alterations in the December 9, 1993 request for reclassification of eight (8) Head Teacher III positions to Head Teacher VI can be inferred from his letter dated June 20, 1997 and hence, Sevilla made a misrepresentation of fact in his letter dated October 25, 1996 when he requested for the upgrading of complainants position to Head Teacher VI."6 Ruling of the Court of Appeals The CA found that Godofredo Limbo himself had made the alterations in the letter-request dated December 9, 1993, specifying that he was Head Teacher III of the Values Department. It also found that petitioner had "agreed to the idea of letting x x x Limbo use the item for values education in order to facilitate the approval of the upgrading of Head Teacher III items to Head Teacher VI. Petitioner Sevilla allowed x x x Limbo to misrepresent himself to be qualified to head the Values Department." Hence, the appellate court faulted petitioner for having committed an act of dishonesty. The CA also found that the appointment of Limbo as Head Teacher VI for values education had been concealed by him and petitioner from respondent and the rest of the Quezon National High School (QNHS) faculty members. It thus ruled that "[n]o logical conclusion can be deduced from the above circumstances other than that they were part of the dishonesty committed by [petitioner]." Hence, this Petition.7 Issues In his appeal, petitioner raises the following issues: "May Petitioner Abelardo V. Sevilla who reached the compulsory age of retirement on December 31, 1999 be legally deprived of his retirement benefits, pensions and gratuities as a consequence of the CSC Resolution, affirmed by the decision of the Court of Appeals promulgated about one year after such compulsory retirement, more particularly on November 17, 2000? "May a person be denied his retirement benefits, pensions and gratuities under the phrase accessory penalty in an administrative hearing by the Civil Service Commission as the central personnel agency of the government, in the absence of a criminal conviction of any crime under the [R]evised Penal Code [or] a Special Law?" 8 In the main, these are the issues: (1) whether the acts/omissions of petitioner amounted to dishonesty; and (2) whether the penalty of dismissal from the service with all its accessory penalties was properly imposed on him. The Courts Ruling The Petition is partly meritorious. First Issue: Dishonesty

Up front, petitioner questions the penalty of dismissal imposed on him, considering that he had already reached the compulsory retirement age of 65 before the finality of the judgment. In any event, he also questions the bases for finding him guilty of dishonesty. The facts of this case are settled. Petitioner was the principal of QNHS. He sent a letter dated December 9, 1993 9to the regional director of the Department of Budget and Management, requesting the reclassification of the following eight (8) items -- from Secondary School Head Teacher III (SSHT III) to Secondary School Head Teacher VI (SSHT VI): Department SSHT III 1. Social Studies Dept. - Rosalinda de Mesa 2. PHEM Dept. - Concepcion Alcantara 3. Science Dept. - Lourdes Rondilla 4. English Dept. - Leonida Mascardo 5. Filipino Dept. - Portal Rivera 6. Home Economics Dept. - Lourdes Norada 7. Practical Arts Dept. - Godofredo Limbo 8. Mathematics Dept. - Angelita Paleracio This request could not be acted upon immediately, because the new secondary school curriculum had merged the Practical Arts Department with the Home Economics Department and created a new Values Education Department.10 When informed of this matter, Limbo altered petitioners December 9, 1993 letter by, among others, crossing out "Practical Arts" and intercalating in its place "Values Education." Such alteration resulted in the reclassification of the eight items, with Limbo issued an appointment as "Head Teacher VI (Values Education)." Having seen the appointment papers,11 petitioner knew of the reclassification. Yet he allowed the former to continue performing the functions of head teacher for the Practical Arts Department. Since no one informed respondent of the matter, she unsuspectingly continued the functions she was already performing as chairman of the Values Education Department. Do these facts constitute sufficient basis to find petitioner guilty of dishonesty? Dishonesty is "[i]ntentionally making a false statement in any material fact, or practicing or attempting to practice any deception or fraud in securing his examination, registration, appointment or promotion." 12 In Philippine Amusement and Gaming Corporation v. Rilloraza,13 dishonesty was understood to imply a "[d]isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity." As found by the CA, it was Limbo who had made the alterations in the December 9, 1993 letter of petitioner, who never represented him to anyone as the head teacher of the Values Education Department. The records show that the item of Limbo was reclassified from Head Teacher III (Practical Arts) to Head Teacher VI (Values Education), without petitioner misrepresenting the former as the one performing the functions of head teacher of the Values Education Department. Although Limbo was appointed as Head Teacher VI (Values Education), after his previous item had been reclassified as such, he continued performing the functions of head teacher of the Practical Arts Department. Hence, there was no misrepresentation of him as the head teacher of Practical Arts (Boys). The above circumstances, however do not totally absolve petitioner from liability. The meat of the anguished Complaint of respondent was the concealment from her and the entire school of Limbos appointment as Head Teacher VI for Values Education, while she continued performing the functions of that position. The fact of his appointment was relevant to the performance, not only of his duties and those of petitioner, but also of her own. Ordinarily, no one would assume the heavy duties and responsibilities of a position without receiving, or at least expecting to receive in the future, the corresponding compensation therefor. Good faith demanded that petitioner should have revealed Limbos appointment to respondent. It was improper for him to expect her to continue performing the functions of a values education head teacher, when someone else had already been appointed to that position and was receiving the corresponding salary.

Being the principal, petitioner may be faulted for having failed to act promptly to change the unfair situation. Thus, he is administratively liable for his omission which, however, did not amount to dishonesty, as he had made no false statement. On his part, no deliberate intent to mislead, deceive or defraud can be read from the circumstances of this case. As a public school principal, petitioner is bound by a high standard of work ethic. "The Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713), enunciates inter alia, the State policy of promoting a high standard of ethics and utmost responsibility in the public service. Section 4 of the Code commands that (p)ublic officials and employees at all times respect the rights of others, and refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest." 14 By his omissions, petitioner failed to live up to such standard. His failure to inform respondent of Limbos appointment and to promptly remedy the resulting prejudice against her may be characterized as conduct grossly prejudicial to the best interest of the service, since such conduct affected not only her but also all the other faculty members of QNHS. Penalty Conduct grossly prejudicial to the best interest of the service is penalized under Section 22(t) of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws by suspension for six (6) months and one (1) day to one (1) year for the first offense. Having reached the compulsory age of retirement during the pendency of this case, petitioner is no longer in the government service. Thus, it would be more appropriate to impose on him a fine equivalent to his salary for six (6) months, instead of a suspension. This penalty is allowed under Section 1915 of the same Rules. Considering that the Court does not find petitioner guilty of dishonesty, further discussion of its corresponding penalty of dismissal becomes moot. With the foregoing ruling, which reduced his penalty from dismissal from service to a fine, it would no longer be necessary to pass upon the second issue. WHEREFORE, the Petition is hereby partly GRANTED, and the assailed Decision MODIFIED. Petitioner is found guilty of conduct grossly prejudicial to the best interest of the service and is FINED in an amount equivalent to his salary for six (6) months, to be deducted from his retirement benefits. No pronouncement as to costs. SO ORDERED.

A.M. No. P-96-1203 February 6, 1997 JUDGE ERNESTO A. REYES, complainant, vs. NORBERTO R. ANOSA, respondent. PER CURIAM: In a letter dated February 21, 1996, Judge Ernesto A. Reyes * (Branch 19, Metropolitan Trial Court of Manila), recommended the dismissal from the service of respondent Norberto R. Anosa, Utility Worker assigned in his court, for grave misconduct, dereliction of duty and conduct unbecoming a public officer. On April 23, 1996, we treated the letter as an administrative complaint and referred it to Executive Judge Thelma C. Ponferrada (Metropolitan Trial Court, Manila) for investigation. On September 5, 1996, Judge Ponferrada submitted her Investigation Report, which was concurred in by Acting Court Administrator Reynaldo Suarez, recommending the dismissal of respondent Anosa. We uphold the recommendation. It appears that on February 7, 1996, Judge Reyes received a copy of an Information 1 charging the respondent with the crime of falsification of public document in that the latter delivered a falsified release order of a certain Gregorio Sanchez who was under detention at the National Bilibid Prisons (NBP) for the offense of Illegal Possession of Firearm and Ammunition. It was not his duty to deliver release orders coming from Branch 32 of the Regional Trial Court presided by Judge Juan C. Nabong, Jr. Prior to this, Ms. Rosario de Guzman, the Branch Clerk of Court of Branch 2, Metropolitan Trial Court of Manila found bundles of mail (Exhibits E, E-1 to E-7) belonging to Branch 19 (complainant Judge's sala) on top of the cabinet inside the staff room of Branch 2. When the bundles of mail were returned to Mr. Conrado Evangelista, the Clerk of Court of Branch 19, Judge Reyes discovered that the envelopes contained notices and subpoenas to parties and counsels for hearings scheduled way back in 1993, 1994 and 1995. Upon confrontation, the respondent admitted that he forgot to deliver the mail matters but he did not receive any warning or admonition for failure to do his job. 2

Judge Reyes also observed that there were times when respondent would report late for work and leave before the official time. 3 The records show that from February 1 to 13, 1996 and from February 22 to March 5, 1996, except on March 1, 1996 respondent failed to report for work. Since then, until the date when Judge Ponferrada conducted her investigation, respondent had been absent from the office. 4 On February 9, 1996, Judge Reyes issued a Memorandum requiring respondent to explain in writing why he should not be dismissed from service. 5 In response to the Memorandum, respondent made the following explanation, viz: Ito po ay patungkol sa memorandum na natanggap ko noong Martes. "Inaamin ko po ang naging kapabayaan ko sa hindi pagkahulog sa post office ng mga notices. Ito po ay buong awa kong inihihingi ng tawad sa inyong mabuting kalooban. Nangyayari po lamang madalas akong mahuli umaga ay sa dahilang naghahatid pa po ako sa eskwelahan sa anak kong Grade III. Hindi po ako umaalis ng opisina sa oras ng trabaho. Kadalasan po ay nasa ibaba lamang ako. Paminsan-minsan naman po ay may mga taong nagpapatulong sa akin mag-ayos ng kanilang mga papeles. Sila po ay aking tinutulungan ng lubos sa aking kalooban at hindi po ako humihingi ng kabayaran o anumang kapalit. Kung sa aking pagtulong sa kanila ay inaabutan ako ng kaunting halaga ito po ay kusang-loob sa kanila. Pangdagdag na rin po ito sa mga araw-araw na gastusin ng aking pamilya na hindi makakaya kung tanging sahod ko lamang ang aking aasahan. Tungkol naman sa demanda sa akin ay maipagmamalaki ko pong sabihin na ako'y INOSENTE sa bagay na ito. Bilang isang empleyado ng korte ay napakiusapan po akong maghatid ng release order. Nang mapasakamay ko po ang nasabing release order ay may pirma na ito ng judge. Kung ang pirma pong iyon ay totoo o peke ay hindi ko na po alam. Judge, nagmamakaawa po ako sa inyo na sana ay bigyan pa ninyo ako ng pagkakataon na maglingkod sa inyo at sa taumbayan at aking ipinangangako na gagampanan ko na po ang aking tungkulin bilang isang empleyado ng gobyerno. Hindi na rin po ako tutulong sa mga taong hindi ko lubos na kilala para hindi na ako mapahamak. Kung ako po ay matatanggal sa kasalukuyan kong trabaho, ang isang taong katulad ko ay kawawa po naman ang mga anak ko na sa akin lamang umaasa. Sana po ay maunawaan ninyo ang aking kalagayan. 6 Respondent's explanation is far from satisfactory. His failure to deliver the notices of hearing and subpoenas to litigants and witnesses amounts to an utter disregard of the duty as a court employee. As a Utility Worker, respondent has the following duties: 9. Court Aide/Utility Worker. The Court Aide/Utility Worker (whenever provided for) acts as courier of the Court, keeps in custody and maintains a record book on matters dispatched by the Court; monitors messages and/or delivers mail matters received to Court employees; sews originals of records, pleadings/documents as directed by the Clerk of Court, docket clerk and clerks-in-charge in the strict order of the dates in which received and in the correct expediente, seeing to it that they are sewn straight, and that no letterings or parts thereof are stitched; maintains cleanliness in and around the Court premises; and performs such other functions as may be assign by the Presiding Judge/Clerk of court. 7 (Emphasis provided.) As a utility worker respondent performs vital work which has a material bearing on the fast and efficient administration of justice. The disposition of cases suffered undue delay because there were no returns on the subpoenas or notices which should have been mailed by the respondent. 8 As well-observed by the Investigating Judge, ". . . the life of a case is dependent upon the effective service of notices, and respondent's failure to deliver the mail matter as courier of the court somehow resulted in the delay in the administration of justice." 9 To be sure, the wheels of justice will not run without the cooperation of the staff of judges composed of clerks of court, staff assistants, legal researchers, sheriffs, process servers, court stenographers, interpreters, bailiffs and, as in this case, court aides or utility workers. Thus, for better delivery of judicial services to our people, we stressed the need for synchronistic action of judges and their staff in RTC Makati Movement Against Graft and Corruption v. Dumlao 10 viz: Public service requires utmost integrity and strictest discipline. A public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task. By the very nature of their duties and responsibilities, all those involved in it, must faithfully adhere to, hold inviolate, and invigorate the principle solemnly enshrined in the 1987 Constitution that a public office is a public trust; and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. The conduct and behavior of everyone connected with the office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of responsibility. . . .

Equally disappointing is respondent's explanation that he reports for work but stays downstairs and sometimes helps, whether for a fee or not, people who need to follow-up papers in court. Allegedly, he does so to augment his income from the government which, according to him, is not adequate to support his family. We have dismissed this excuse in Biyaheros Mart Livelihood Association, Inc. v. Cabusao, Jr. 11 where we held that "(g)overnment service demands great sacrifice. One who cannot live with the modest salary of a public office has no business staying in the service. He is free to seek greener pastures. The public trust character of the office prescribes him from employing its facilities or using official time for private business or purposes." Our ruling is aligned with the Code of Conduct and Ethical Standards for Public Officials and Employees which demands that every public servant shall at all times uphold public interest over his personal interest. Anent the charge of falsification, respondent's guilt is yet to be determined pending the resolution of Criminal Case No. 302709. Its pendency, however, is not a hindrance to his dismissal considering that the other charges are serious and sufficient in themselves. IN VIEW WHEREOF, respondent Utility Worker Roberto Anosa is dismissed from the service with forfeiture of all benefits, if any, and with prejudice to his subsequent employment in any other government agency. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Footnotes * Now Presiding Judge, Br. III, Regional Trial Court, Pasay City. 1 The Information read as follows, "That on or about 31st day of January, 1996, and for sometime prior thereto, in the City of Manila, Philippines, the said accused conspiring, and confederating together and helping each other being then Bondsman and Court employee respectively, did then and there wilfully, unlawfully and feloniously commit acts of falsification of public document in the following manner, to wit: the said accused, with intent to cause damage, prepared executed and falsified or caused to be forged, executed and falsified an ORDER OF RELEASE for the release from detention at Camp Ricardo R. Papa of one Gregorio Sanchez y Ombrog, who had been charged and detained for the offense of Illegal Possession of Firearm and Ammunition, by then and there stating therein, among others, that said Gregorio Sanchez y Ombrog, thru his wife Shirley Sanchez, had filed a Personal bailbond in the amount of P15,000.00, and then signing the name Juan C. Nabong, Jr., Judge Regional Trial Court Manila, Branch 32 appearing on the right hand portion of said document, thereby making it appear, as it did, appear, that said Hon. Judge Juan C. Nabong, Jr. had participated in the signing of the said document when in truth and in fact, as the accused well knew, such was not the case in that the said Hon. Judge Nabong, Jr. did not participate and/or intervene in the signing of the said document, much less did he authorize the said accused or anybody else to sign hisname or affix his signature thereon; that once the said document had been forged and falsified in the manner above set forth, the same was presented to the Jail Officer of the Camp Ricardo R. Papa for the release of said Gregorio Sanchez, to the damage and prejudice of said Shirley Sanchez and/or public interest."

G.R. Nos. 147248-49

January 23, 2002

BAYBAY WATER DISTRICT, represented by ERNESTO D. FERNANDEZ, General Manager; ERLINDA MENDEZ, SAMUEL O. CANETE, NILO RAMADA, DOMINGO COTIAMCO, BWD Board of Directors, and other similarly situated Officers and Board Members of BWD, petitioners, vs. COMMISSION ON AUDIT, respondent. MENDOZA, J.: This is a special civil action for certiorari under Rule 64 of the 1997 Revised Rules of Court for annulment of the decision, dated September 21, 2000, of the Commission on Audit1 and its resolution, dated January 30, 2001, affirming the disallowance by the Director, COA Regional Office No. VIII, of the payment of various benefits to members of the board of directors and officers of petitioner Baybay Water District (BWD) in Baybay, Leyte. The facts are as follows:

In 1996, the Resident Auditor of the BWD conducted an audit of its 1994 accounts. In the course of the audit, the auditor disallowed payments of per diems in excess of those authorized by the Local Water Utilities Administration (LWUA) and P. D. No. 198, RATA (representation and transportation allowance) and rice allowances granted to the members of the board of directors of the BWD, as well as duplication of claims for cash gifts as part of the Christmas bonus of the general manager and traveling allowance of the officers of the BWD. The members of the board, namely, petitioners Domingo V. Cotiamco, Apolonio G. Medina, Nilo T. Ramada, Virginia P. Espinosa, Ernesto L. Gorre, Antonio R. C. Palencia, Love Joy A. Fernandez, and Frank Bula, Administrative Division Chief Erlinda A. Mendez, and then General Manager Francis H. P. Militante, the officers who had approved the release of these benefits, were served with notices of disallowance. Ma. Josette B. Astorga, to whom rice allowances had been given, and the other petitioners in this case were also served with similar notices. On May 30, 1997, petitioners asked for a reconsideration, but the Resident Auditor denied their request on the ground that the disallowance had become final and executory. Instead, she advised them to make their appeal to the Commission on Audit. The BWD at first appealed to the COA Regional Office No. VIII at Tacloban City, which affirmed the findings of the Resident Auditor of Baybay, Leyte, and then to the Commission on Audit. On September 21, 2000, the Commission rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, it is regretted that the instant appeal cannot be given due course for lack of merit. Accordingly, the decision of the Director COA Regional Office No. VIII is hereby affirmed and the following persons cited in the various Notices of Disallowances, namely: Erlinda A. Mendez, for approving the questioned payment and at the same time being payee; - do as payee - do - do - do - do - do - do - do - do -

Francis H. P. Militante Domingo V. Cotiamco Apolonio G. Medina Nilo T. Ramada Virginia P. Espinosa Ernesto L. Gorre Antonio R. C. Palencia Ma. Josette B. Astorga Love Joy A. Fernandez Frank Bula are held liable.2

Petitioners filed a motion for reconsideration. As their motion was denied by the Commission on January 30, 2001, they filed the present petition, alleging that the Commission erred in: I. NOT HOLDING THAT THE GRANT OF THE SUBJECT BENEFITS TO THE DIRECTORS, OFFICERS AND EMPLOYEES OF BWD, HAS LEGAL BASIS, AND IS GUARANTEED BY THE CONSTITUTION. II. HOLDING THAT PETITIONERS ARE NOT ENTITLED TO RECEIVE OTHER BENEFITS PURSUANT TO SECTION 13 OF PD 198, AS AMENDED. III. NOT HOLDING THAT SECTION 13 OF P. D. 198, AS AMENDED, WAS ALREADY REPEALED AND/OR SUPERSEDED BY REPUBLIC ACT 6758, OTHERWISE KNOWN AS THE SALARY STANDARDIZATION LAW, WHICH TOOK EFFECT IN JULY, 1989. IV. HOLDING THAT THE CONTINUED DISALLOWANCE OF THESE BENEFITS WOULD NOT VIOLATE THE POLICY OR RULE ON NON-DIMINUTION OF BENEFITS AND THE EQUITY RULE. V. NOT HOLDING THAT THE BENEFITS GRANTED TO BWD OFFICERS AND EMPLOYEES IS A MANAGEMENT PREROGATIVE WHICH ACT OR PRIVILEGE SHOULD ENJOY THE PRESUMPTION OF LEGALITY UNTIL OTHERWISE DECLARED BY THE COURTS AND THAT THE GRANT OF THESE BENEFITS NOT ONLY APPLIES TO THE PERMANENT EMPLOYEES BUT ALSO TO THE OFFICERS AND MEMBERS OF THE BOARD OF BWD. 3 The issues raised in this case are as follows: (1) whether members of the board of directors of water districts are entitled to receive benefits in addition to those authorized to be paid pursuant to their charter and the guidelines of the LWUA after the effectivity of R. A. No. 6758; (2) whether the disallowance of duplication of claims of transportation

allowance of various BWD employees, as well as the grant of RATA, rice allowance, and excessive per diems to members of the board of directors of BWD, would impair vested rights, violate any rule against diminution of benefits, and undermine the management prerogative of water districts; and (3) whether the BWD officers and employees are entitled to receive benefits in excess of that authorized by law. For the reasons hereafter given, we hold that petitioners are not entitled to receive benefits and allowances in excess of those allowed by P.D. No. 198, the guidelines of the LWUA, and other applicable laws. First. As far as the directors of the BWD are concerned, P. D. No. 198, 13, as amended by P. D. No. 768 and P. D. No. 1479, reads: Compensation. Each director shall receive a per diem, to be determined by the board, for each meeting of the board actually attended by him, but no director shall receive per diems in any given month in excess of the equivalent of the total per diems of four meetings in any given month. No director shall receive other compensation for services to the district. Any per diem in excess of P50 shall be subject to approval of the Administration. (emphasis added) Petitioners argue that the term "compensation" in the above provision does not include the allowances and per diems which had been disallowed in this case. They cite P. D. No. 1146, 4 2(i), as amended by R.A. No. 8291, which provides that "compensation" means "the basic pay or salary by an employee, pursuant to his employment/appointment, excluding per diems, bonuses, overtime pay, allowances and any other emoluments received in addition to the basic pay which are not integrated into the basic pay under existing laws." The contention is untenable. The statutory provision invoked refers to the basis for the computation of employer and employee contributions to the GSIS as well as the benefits to which such employees are entitled. In the same manner, under 32 of the National Internal Revenue Code, "compensation" includes fees, salaries, wages, commissions, and similar items for purposes of recognizing taxable income. The definitions of the term "compensation" in these statutes are for limited purposes only and cannot be deemed to comprehend such other purposes not specifically included in the provisions thereof. Petitioners, also invoke the rulings of this Court in Kneebone v. NLRC,5 Vengco v. Trajano,6 and Philippine Duplicators, Inc. v. NLRC,7 to support their contention that the prohibition against the payment of compensation other than per diems does not include the payment of allowances and other benefits. These cases do not apply to this case. They refer to the exclusion made by this Court of allowances and other benefits from the salaries of employees in the private sector, not to the compensation of members of the board of directors of water districts, whose rights to compensation, as already stated, are governed by P. D. No. 198. Under 13 of this Decree, per diem is precisely intended to be the compensation of members of board of directors of water districts. Indeed, words and phrases in a statute must be given their natural, ordinary, and commonly-accepted meaning, 8 due regard being given to the context in which the words and phrases are used. 9 By specifying the compensation which a director is entitled to receive and by limiting the amount he/she is allowed to receive in a month, and, in the same paragraph, providing "No director shall receive other compensation" than the amount provided for per diems, the law quite clearly indicates that directors of water districts are authorized to receive only the per diem authorized by law and no other compensation or allowance in whatever form. Second. Petitioners contend that the prohibition in P.D. No. 198, 13 against the grant of additional compensation to board members must be deemed repealed by virtue of 22 10 of R. A. No. 6758, otherwise known as the Salary Standardization Law, which took effect on July 1, 1989. They contend that 13 of P.D. No. 198 is inconsistent with the following provisions of the Salary Standardization Law: Sec. 12. Consolidation of Allowances and Compensation. -All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. .... Sec. 17. Salaries of Incumbents.-Incumbents of positions presently receiving salaries and additional compensation/fringe benefits including those absorbed from local government units and other emoluments, the aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such

excess compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the amount of salary adjustment that the incumbent shall receive in the future. We do not agree. R. A. No. 6758, 4 specifically provides that the Salary Standardization Law applies to "positions, appointive or elective, on full or part-time basis, now existing or hereafter created in the government, including government-owned or controlled corporations and government financial institutions." These positions, with their corresponding functions, are described as follows: Sec. 5. Position Classification System. The Position Classification System shall consist of classes of positions grouped into four main categories, namely: professional supervisory, professional non-supervisory, subprofessional supervisory, and sub-professional non-supervisory, and the rules and regulations for its implementation. Categorization of these classes of positions shall be guided by the following considerations: (a) Professional Supervisory Category. This category includes responsible positions of a managerial character involving the exercise of management functions such as planning, organizing, directing, coordinating, controlling and overseeing within delegated authority the activities of an organization, a unit thereof or of a group, requiring some degree of professional, technical or scientific knowledge and experience, application of managerial or supervisory skills required to carry out their basic duties and responsibilities involving functional guidance and control, leadership, as well as line supervision. These positions require intensive and thorough knowledge of a specialized field usually acquired from completion of a bachelors degree or higher degree courses. The positions in this category are assigned Salary Grade 9 to Salary Grade 33. (b) Professional Non-Supervisory Category. This category includes positions performing tasks which usually require the exercise of a particular profession or application of knowledge acquired through formal training in a particular field or just the exercise of a natural, creative and artistic ability or talent in literature, drama, music and other branches of arts and letters. Also included are positions involved in research and application of professional knowledge and methods to a variety of technological, economic, social, industrial and governmental functions; the performance of technical tasks auxiliary to scientific research and development; and in the performance of religious, educational, legal, artistic or literary functions. These positions require thorough knowledge in the field of arts and sciences or learning acquired through completion of at least four (4) years of college studies. The positions in this category are assigned Salary Grade 8 to Salary Grade 30. (c) Sub-Professional Supervisory Category. This category includes positions performing supervisory functions over a group of employees engaged in responsible work along technical, manual or clerical lines of work which are short of professional work, requiring training and moderate experience or lower training but considerable experience and knowledge of a limited subject matter or skills in arts, crafts or trades. These positions require knowledge acquired from secondary or vocational education or completion of up to two (2) years of college education. The positions in this category are assigned Salary Grade 4 to Salary Grade 18. (d) Sub-Professional Non-Supervisory Category. This category includes positions involved in structured work in support of office or fiscal operations or those engaged in crafts, trades or manual work. These positions usually require skills acquired through training and experience or completion of elementary education, secondary or vocational education or completion of up to two (2) years of college education. The positions in this category are assigned Salary Grade 1 to Salary Grade 10. It is obvious that the Salary Standardization Law does not apply to petitioners because directors of water districts are in fact limited to policy-making and are prohibited from the management of the districts. P.D. No. 198, 18 described the functions of members of boards of directors of water districts as follows: Sec. 18. Functions Limited to Policy-Making. The function of the board shall be to establish policy. The Board shall not engage in the detailed management of the district. Furthermore, the fact that 12 and 17 of the Salary Standardization Law speak of allowances as "benefits" paid in addition to the salaries incumbents are presently receiving makes it clear that the law does not refer to the compensation of board of directors of water districts as these directors do not receive salaries but per diems for their compensation.

It is noteworthy that even the Local Water Utilities Administration (LWUA), in Resolution No. 313, s. 1995, entitled "Policy Guidelines on Compensation and Other Benefits to WD Board of Directors," on which petitioners rely for authority to grant themselves additional benefits, acknowledges that directors of water districts are not organic personnel and, as such, are deemed excluded from the coverage of the Salary Standardization Law. Memorandum Circular No. 94-002 of the DBMCSC-LWUA-PAWD Oversight Committee states in pertinent part: As the WD Board of Directors function is limited to policy-making under Sec. 18 of Presidential Decree 198, as amended, it is the position of the Oversight Committee that said WD Directors are not to be treated as organic personnel, and as such are deemed excluded from the coverage of RA 6758, and that their powers, rights and privileges are governed by the pertinent provisions of PD 198, as amended, not by RA 6758 or Executive Order No. 164, s. 1994. There is, therefore, no basis for petitioners contention that the provisions of P.D. No. 198 on the compensation of members of the board of directors of water districts are inconsistent with the provisions of the Salary Standardization Law. Third. Petitioners contend that even before this Court declared in Davao City Water District v. Civil Service Commission11 that water districts are government-owned and controlled corporations subject to the jurisdiction of the COA, water districts had already been granting additional benefits to members of the board of directors, with the approval of the Local Water Utilities Administration (LWUA), and to their officers and employees and that they continued doing so after the promulgation of the decision in that case. Petitioners contend they have thus acquired a vested right to these benefits of which they cannot now be deprived without violating their property rights and the rule on non-diminution of benefits. This contention too has no merit. The erroneous application and enforcement of the law by public officers does not estop the Government from making a subsequent correction of such errors. 12 More specifically, where there is an express provision of law prohibiting the grant of certain benefits, the law must be enforced even if it prejudices certain parties due to an error committed by public officials in granting the benefit. 13 As already stated, P.D. No. 198 expressly prohibits the grant of compensation other than the payment of per diems, as determined by the LWUA pursuant to P. D. No. 198, to directors of water districts. Practice, without more, no matter how long continued, cannot give rise to any vested right if it is contrary to law.14 The same rule applies to the officers and employees of the BWD. R.A. No. 6686, which then applied, provides that all government personnel are entitled to a Christmas bonus of one (1) month basic salary and additional cash gift of P1,000.00.15 The cash gift granted to Francis H. P. Militante, BWD Manager, for the year 1994 amounted toP1,500.00. The Resident Auditor, therefore, properly disallowed the P500.00 thereof as this amount was in excess of that authorized by law. On the other hand, findings regarding the duplication of claims for the transportation allowance granted to various employees of the BWD are findings of fact by the Resident Auditor. The question is whether such claims were properly accounted for and not whether this disallowance will impair vested rights. It is well-settled that findings of fact of quasijudicial agencies, such as the COA, are generally accorded respect and even finality by this Court, if supported by substantial evidence, in recognition of their expertise on the specific matters under their jurisdiction. 16 In the present case, the findings of the Resident Auditor were not only supported by the evidence, but they remained unrebutted by petitioners who simply relied on claims based on impairment of vested rights and diminution of benefits. Petitioners reliance on De Jesus v. Commission on Audit,17 Philippine Ports Authority v. Commission on Audit ,18and Manila International Airport Authority v. Commission on Audit 19 is likewise erroneous. In De Jesus, it was held that the circular issued by the Department of Budget and Management to implement the Salary Standardization Law, which discontinued the payment of allowances and fringe benefits previously granted on top of basic salary, was ineffective for lack of publication in the Official Gazette or in a newspaper of general circulation, as required by law. On the other hand, in Philippine Ports Authority and Manila International Airport Authority, the issue resolved was the right of employees to receive RATA over and above the standardized salary after the effectivity of R. A. No. 6758. These cases are not in point as the issues in the present case are, to repeat, (1) whether members of the board of directors of water districts are entitled to receive even after the effectivity of the Salary Standardization Law benefits other than their authorized per diems, contrary to the provisions of their charter and the resolution of the LWUA; (2) whether the disallowance of duplication of claims of transportation allowance to BWD employees, as well as the grant of RATA, rice allowance, and excessive per diems to members of the board of directors of BWD, would impair vested rights and violate any rule against diminution of benefits and undermine the management prerogative of the BWD; and (3) whether the BWD officers and employees are entitled to receive benefits in excess of that authorized by law. Fourth. Petitioners invoke management prerogative to justify the grant of allowances and other benefits to both the board of directors of BWD and its officers and employees. With respect to the board of directors, there is no basis for such contention. To begin with, management prerogative refers to the right of an employer to regulate all aspects of employment, such as the freedom to prescribe work assignments, working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of work. 20 Clearly, the existence of such right presupposes the existence of an employer-employee relationship. In the present case, the BWD board of directors are not employees of

BWD. As already noted, their function, as defined by P. D. No. 198, is limited to policy-making, 21 implying that their relationship to the water district is more fiduciary than that of employer-employee. Moreover, as also noted before, the right of directors of water districts to the payment of compensation is expressly provided for in P.D. No. 198, thus preempting the exercise of any discretion by the water districts. With respect to the officers and employees of BWD, it has been held that the terms and conditions of employment of government employees are governed by law.22 Thus, the exercise of management prerogative by government corporations are limited by the provisions of the laws applicable to them. The cash gift granted to the general manager as part of his Christmas bonus was in excess of that authorized by R. A. No. 6686. It cannot be justified by the exercise of management prerogative as it is contrary to law. Finally, the disallowance of the duplication of claims for transportation allowance does not fall under management prerogative as this does not pertain to the power of management to determine the terms and conditions of employment but pertains to whether or not the claims are properly accounted for. Fifth. Petitioners finally cite the grant of similar benefits to the directors of the National Power Corporation (NAPOCOR) to support their claim that board of directors are entitled to receive allowances and other benefits in addition to per diems. The comparison drawn by petitioner between the BWD and NAPOCOR has no basis. The grant of other allowances to NAPOCOR board members in COA Decision No. 99-020 is based on the Revised NAPOCOR Charter (R. A. No. 6395, as amended by P. D. No. 1360), which states: Sec. 6 . . . . The members of said Board shall receive a per diem of not to exceed Five Hundred Pesos for each regular or special meeting of the Board actually attended by them, and upon approval of the Secretary of Energy, shall receive such other allowances as the Board may prescribe, any provision of law to the contrary notwithstanding. As the Commission pointed out in its decision COA Case No. 90-020: The entitlement to per diems and other allowances by members of the board was originally derived from the revised NPC Charter. All allowances enjoyed by the board members were approved by the Ministry of Energy to conform with the imposition of an additional condition under the NPC Charter that the receipt of the allowances other than per diems should carry the approval of the MOE. The entitlement to these allowances cannot be removed by R.A. 6758 or any subsequent law, consistent with the policy of non-diminution of pay embodied under R. A. 6758 since these allowances were already being received and the boards right to these allowances was already established before the enactment of R. A. 6758. Since the allowances were fixed at a time when the authority of the board to grant the same was still valid and effective, the allowances are also valid and should remain part of the compensation of the members of the board. Unlike P.D. No. 198, 13, the Charter of NAPOCOR expressly granted members of its board of directors the right to receive allowances in addition to their per diems, subject only to the approval of the Secretary of Energy. Petitioners cannot thus claim similar treatment as the board of directors of NAPOCOR. The BWD board of directors right to compensation, it bears emphasis, is limited to per diems. WHEREFORE, the petition for certiorari is DENIED and the decision of the Commission on Audit, dated September 21, 2000, as well as its resolution, dated January 30, 2001, is AFFIRMED. SO ORDERED.

G.R. No. 78780

July 23, 1987

DAVID G. NITAFAN, WENCESLAO M. POLO, and MAXIMO A. SAVELLANO, JR., petitioners, vs. COMMISSIONER OF INTERNAL REVENUE and THE FINANCIAL OFFICER, SUPREME COURT OF THE PHILIPPINES, respondents. MELENCIO-HERRERA, J.: Petitioners, the duly appointed and qualified Judges presiding over Branches 52, 19 and 53, respectively, of the Regional Trial Court, National Capital Judicial Region, all with stations in Manila, seek to prohibit and/or perpetually enjoin

respondents, the Commissioner of Internal Revenue and the Financial Officer of the Supreme Court, from making any deduction of withholding taxes from their salaries. In a nutshell, they submit that "any tax withheld from their emoluments or compensation as judicial officers constitutes a decrease or diminution of their salaries, contrary to the provision of Section 10, Article VIII of the 1987 Constitution mandating that "(d)uring their continuance in office, their salary shall not be decreased," even as it is anathema to the Ideal of an independent judiciary envisioned in and by said Constitution." It may be pointed out that, early on, the Court had dealt with the matter administratively in response to representations that the Court direct its Finance Officer to discontinue the withholding of taxes from salaries of members of the Bench. Thus, on June 4, 1987, the Court en banc had reaffirmed the Chief Justice's directive as follows: RE: Question of exemption from income taxation . The Court REAFFIRMED the Chief Justice's previous and standing directive to the Fiscal Management and Budget Office of this Court to continue with the deduction of the withholding taxes from the salaries of the Justices of the Supreme Court as well as from the salaries of all other members of the judiciary. That should have resolved the question. However, with the filing of this petition, the Court has deemed it best to settle the legal issue raised through this judicial pronouncement. As will be shown hereinafter, the clear intent of the Constitutional Commission was to delete the proposed express grant of exemption from payment of income tax to members of the Judiciary, so as to "give substance to equality among the three branches of Government" in the words of Commissioner Rigos. In the course of the deliberations, it was further expressly made clear, specially with regard to Commissioner Joaquin F. Bernas' accepted amendment to the amendment of Commissioner Rigos, that the salaries of members of the Judiciary would be subject to the general income tax applied to all taxpayers. This intent was somehow and inadvertently not clearly set forth in the final text of the Constitution as approved and ratified in February, 1987 (infra, pp. 7-8). Although the intent may have been obscured by the failure to include in the General Provisions a proscription against exemption of any public officer or employee, including constitutional officers, from payment of income tax, the Court since then has authorized the continuation of the deduction of the withholding tax from the salaries of the members of the Supreme Court, as well as from the salaries of all other members of the Judiciary. The Court hereby makes of record that it had then discarded the ruling in Perfecto vs. Meer and Endencia vs. David, infra, that declared the salaries of members of the Judiciary exempt from payment of the income tax and considered such payment as a diminution of their salaries during their continuance in office. The Court hereby reiterates that the salaries of Justices and Judges are properly subject to a general income tax law applicable to all income earners and that the payment of such income tax by Justices and Judges does not fall within the constitutional protection against decrease of their salaries during their continuance in office. A comparison of the Constitutional provisions involved is called for. The 1935 Constitution provided: ... (The members of the Supreme Court and all judges of inferior courts) shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office ... 1 (Emphasis supplied). Under the 1973 Constitution, the same provision read: The salary of the Chief Justice and of the Associate Justices of the Supreme court, and of judges of inferior courts shall be fixed by law, which shall not be decreased during their continuance in office. ... 2 (Emphasis ours). And in respect of income tax exemption, another provision in the same 1973 Constitution specifically stipulated: No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax. 3 The provision in the 1987 Constitution, which petitioners rely on, reads: The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. 4(Emphasis supplied). The 1987 Constitution does not contain a provision similar to Section 6, Article XV of the 1973 Constitution, for which reason, petitioners claim that the intent of the framers is to revert to the original concept of "non-diminution "of salaries of judicial officers. The deliberations of the 1986 Constitutional Commission relevant to Section 10, Article VIII, negate such contention. The draft proposal of Section 10, Article VIII, of the 1987 Constitution read:

Section 13. The salary of the Chief Justice and the Associate Justices of the Supreme Court and of judges of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be diminished nor subjected to income tax. Until the National Assembly shall provide otherwise, the Chief Justice shall receive an annual salary of _____________ and each Associate Justice ______________ pesos. 5 (Emphasis ours) During the debates on the draft Article (Committee Report No. 18), two Commissioners presented their objections to the provision on tax exemption, thus: MS. AQUINO. Finally, on the matter of exemption from tax of the salary of justices, does this not violate the principle of the uniformity of taxation and the principle of equal protection of the law? After all, tax is levied not on the salary but on the combined income, such that when the judge receives a salary and it is comingled with the other income, we tax the income, not the salary. Why do we have to give special privileges to the salary of justices? MR. CONCEPCION. It is the independence of the judiciary. We prohibit the increase or decrease of their salary during their term. This is an indirect way of decreasing their salary and affecting the independence of the judges. MS. AQUINO. I appreciate that to be in the nature of a clause to respect tenure, but the special privilege on taxation might, in effect, be a violation of the principle of uniformity in taxation and the equal protection clause. xxx MR. OPLE. x x x Of course, we share deeply the concern expressed by the sponsor, Commissioner Roberto Concepcion, for whom we have the highest respect, to surround the Supreme Court and the judicial system as a whole with the whole armor of defense against the executive and legislative invasion of their independence. But in so doing, some of the citizens outside, especially the humble government employees, might say that in trying to erect a bastion of justice, we might end up with the fortress of privileges, an island of extra territoriality under the Republic of the Philippines, because a good number of powers and rights accorded to the Judiciary here may not be enjoyed in the remotest degree by other employees of the government. An example is the exception from income tax, which is a kind of economic immunity, which is, of course, denied to the entire executive department and the legislative. 7 And during the period of amendments on the draft Article, on July 14, 1986, Commissioner Cirilo A. Rigos proposed that the term "diminished" be changed to "decreased" and that the words "nor subjected to income tax" be deleted so as to "give substance to equality among the three branches in the government. Commissioner Florenz D. Regalado, on behalf of the Committee on the Judiciary, defended the original draft and referred to the ruling of this Court in Perfecto vs. Meer 8 that "the independence of the judges is of far greater importance than any revenue that could come from taxing their salaries." Commissioner Rigos then moved that the matter be put to a vote. Commissioner Joaquin G. Bernas stood up "in support of an amendment to the amendment with the request for a modification of the amendment," as follows: FR. BERNAS. Yes. I am going to propose an amendment to the amendment saying that it is not enough to drop the phrase "shall not be subjected to income tax," because if that is all that the Gentleman will do, then he will just fall back on the decision in Perfecto vs. Meer and in Dencia vs. David [should be Endencia and Jugo vs. David, etc., 93 Phil. 696[ which excludes them from income tax, but rather I would propose that the statement will read: "During their continuance in office, their salary shall not be diminished BUT MAY BE SUBJECT TO GENERAL INCOME TAX."IN support of this position, I would say that the argument seems to be that the justice and judges should not be subjected to income tax because they already gave up the income from their practice. That is true also of Cabinet members and all other employees. And I know right now, for instance, there are many people who have accepted employment in the government involving a reduction of income and yet are still subject to income tax. So, they are not the only citizens whose income is reduced by accepting service in government. Commissioner Rigos accepted the proposed amendment to the amendment. Commissioner Rustico F. de los Reyes, Jr. then moved for a suspension of the session. Upon resumption, Commissioner Bernas announced: During the suspension, we came to an understanding with the original proponent, Commissioner Rigos, that his amendment on page 6,. line 4 would read: "During their continuance in office, their salary shall not be DECREASED."But this is on the understanding that there will be a provision in the Constitution similar to Section 6 of Article XV, the General Provisions of the 1973 Constitution, which says: xxx xxx

No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from payment of income tax. So, we put a period (.) after "DECREASED" on the understanding that the salary of justices is subject to tax. When queried about the specific Article in the General Provisions on non-exemption from tax of salaries of public officers, Commissioner Bernas replied: FR BERNAS. Yes, I do not know if such an article will be found in the General Provisions. But at any rate, when we put a period (.) after "DECREASED," it is on the understanding that the doctrine in Perfecto vs. Meer and Dencia vs. David will not apply anymore. The amendment to the original draft, as discussed and understood, was finally approved without objection. THE PRESIDING OFFICER (Mr. Bengzon). The understanding, therefore, is that there will be a provision under the Article on General Provisions. Could Commissioner Rosario Braid kindly take note that the salaries of officials of the government including constitutional officers shall not be exempt from income tax? The amendment proposed herein and accepted by the Committee now reads as follows: "During their continuance in office, their salary shall not be DECREASED"; and the phrase "nor subjected to income tax" is deleted. 9 The debates, interpellations and opinions expressed regarding the constitutional provision in question until it was finally approved by the Commission disclosed that the true intent of the framers of the 1987 Constitution, in adopting it, was to make the salaries of members of the Judiciary taxable. The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. 10 The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. 11 it may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.121avvphi1 Besides, construing Section 10, Articles VIII, of the 1987 Constitution, which, for clarity, is again reproduced hereunder: The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. (Emphasis supplied). it is plain that the Constitution authorizes Congress to pass a law fixing another rate of compensation of Justices and Judges but such rate must be higher than that which they are receiving at the time of enactment, or if lower, it would be applicable only to those appointed after its approval. It would be a strained construction to read into the provision an exemption from taxation in the light of the discussion in the Constitutional Commission. With the foregoing interpretation, and as stated heretofore, the ruling that "the imposition of income tax upon the salary of judges is a dimunition thereof, and so violates the Constitution" in Perfecto vs. Meer,13 as affirmed inEndencia vs. David 14 must be declared discarded. The framers of the fundamental law, as the alter ego of the people, have expressed in clear and unmistakable terms the meaning and import of Section 10, Article VIII, of the 1987 Constitution that they have adopted Stated otherwise, we accord due respect to the intent of the people, through the discussions and deliberations of their representatives, in the spirit that all citizens should bear their aliquot part of the cost of maintaining the government and should share the burden of general income taxation equitably. WHEREFORE, the instant petition for Prohibition is hereby dismissed.

G.R. No. 142649

September 13, 2001

ANTONIO C. SAN LUIS, petitioner, vs. COURT OF APPEALS, HON. NELSON BAYOT, as Presiding Judge, RTC, Pasay City, Branch 118, and T N. LAL & CO., LTD., respondents. DAVIDE, JR., C.J.:

Challenged in the petition for review in this case is the Resolution 1 of 24 January 2000 of the Court of Appeals in CA G.R. SP No. 56549, which dismissed petitioner's special civil action for certiorari for having been filed out of time, as well as its Resolution of 13 March 2000, denying the motion for reconsideration of the former. The record discloses that private respondent T.N. Lal & Co., Ltd. filed a petition for indirect contempt against herein petitioner, Antonio C. San Luis, Administrator of the Light Rail Transit Authority (LRTA), before the Regional Trial Court of Pasay City. The petition was docketed as Civil Case No. 99-0480 and raffled to Branch 118 of said court. The action arose from the alleged failure or refusal of petitioner to comply with the order of 7 April 1999 of Hon. Ernesto A. Reyes, presiding judge of Branch 111 of said court in Civil Case No. 97-0423. The order directed the LRTA to immediately restore the power supply of private respondent's sound system in all places, sites and locations in its area of responsibility within 24 hours from receipt of the same.2 Petitioner filed a motion to dismiss the petition for indirect contempt on the ground that it states no cause of action and private respondent, as petitioner therein, was guilty of forum-shopping. 3 On 15 July 1999, public respondent Hon. Nelson Bayot, presiding judge of Branch 118, issued an order, a copy of which was received by petitioner on 9 August 1999, directing that the petition for indirect contempt, Civil Case No. 99-0480, be transferred to Branch 111 for disposition and appropriate action, since it was that branch which issued the order of 7 April 1999 and against which the contemptuous act was committed; hence, Branch 111 was in a better position to determine whether or not the order of 7 April 1999 had been violated. 4 On 18 August 1999, petitioner moved to reconsider the 15 July 1999 order of Judge Bayot. The latter issued an order on 22 October 1999, stating that the records of the case had already been transferred to Branch 111 and that he believed the assailed order was correct and proper. Accordingly, he would not act anymore on the motion for reconsideration. 5 A copy of said order was received by petitioner on 8 November 1999. On 7 January 2000, petitioner filed with the Court of Appeals a petition for certiorari and mandamus under Rule 65 of the Rules of Court. In the petition, which was docketed as CA-G.R. SP No. 56549, petitioner sought to annul Judge Bayot's orders of 15 July 1999 and 22 October 1999 on the ground that the latter acted without or in excess of jurisdiction and/or with grave abuse of discretion when he did not act on petitioner's motion to dismiss and motion for reconsideration and, instead, transferred the case to Branch 111 of the court below. 6 In its Resolution of 24 January 2000, the Court of Appeals dismissed the petition for having been filed out of time.7Forthwith, petitioner filed a "Motion for Reconsideration" as well as a "Motion to Admit Petition for Certiorari andMandamus and to Relax Strict Rules on Procedure," both of which the Court of Appeals denied in its Resolution of 13 March 2000.8 Petitioner is now before us, asking for a liberal application of the procedural rules. He raises the following issues for resolution: 1. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION DENYING PETITIONER'S PETITION FOR CERTIORARI AND MANDAMUS AND CONSEQUENTLY DISMISSED THE SAME FOR ITS FAILURE TO FILE THE SAID PETITION ON TIME, OVERLOOKING THE FACT THAT THE FAILURE TO FILE THE SAME WAS DUE TO AN HONEST MISTAKE AND HUMAN ERROR IN COMPUTING THE PERIOD FOR FILING THE INSTANT PETITION BY HANDLING COUNSEL. 2. WHETHER OR NOT THE INSTANT CASE IS WARRANTED SO THAT PETITIONER'S PETITION FOR CERTIORARI AND MANDAMUS WITH THE COURT OF APPEALS COULD BE REINSTATED AND PROCEED IN DUE COURSE IN ORDER NOT TO DEPRIVE PETITIONER OF ITS [SIC] RIGHT TO PROSECUTE HIS CASE BEFORE THE COURT OF APPEALS SO THAT IT CAN BE DECIDED ON THE MERITS AND NOT ON ITS TECHNICALITY ASPECT. 9 On the procedural aspect, we rule in favor of petitioner. In finding that the petition for courtroom and mandamus was filed out of time, the Court of Appeals applied Section 4, Rule 65 of the 1997 Rules of Civil Procedure, as amended by the Resolution of 21 July 1998, which reads: SECTION 4. Where petition filed The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.

If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case exceeding fifteen (15) days. The Court of Appeals reckoned the counting of the 60-day period from petitioner's receipt on 9 August 1999 of a copy of the assailed 15 July 1999 order, considered the interruption of the running of the period by the filing on 18 August 1999 of the "Motion for Reconsideration," and held that the remaining period resumed to run on 8 November 1999, the date petitioner received the 22 October 1999 order. Accordingly, petitioner should have filed the petition on or before 29 December 1999. He filed the petition only on 7 January 2000, or nine days after the expiration of the period. It must be pointed out, however, that Section 4, Rule 65 of the 1997 Rules of Civil Procedure was subsequently amended in the Court's Resolution in A.M. No. 00-2-03-SC, which took effect on 1 September 2000. As amended, said section reads as follows: SECTION 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. Under this amendment, the 60-day period within which to file the petition starts to run from receipt of notice of the denial of the motion for reconsideration, if one is filed. In our decision in Systems Factors Corporation and Modesto Dean vs. NLRC, et al.,10 reiterated in Unity Fishing Development Corp. and/or Antonio Dee vs. Court of Appeals et al .,11 the new period was made applicable to pending cases, such as in the case at bar. Settled is the rule that remedial statutes or statutes relating to remedies or modes of procedure, which do not create new rights or take away vested rights but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the purview of the general rule against the retroactive operation of statutes. Procedural laws are construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the retroactive application of procedural laws cannot be considered violative of any personal rights because no vested right may attach to nor arise therefrom. Conformably with Section 4 of Rule 65, as amended, the 60-day period of petitioner to file the petition for certiorarishould be counted from his receipt on 8 November 1999 of the Resolution of 22 October 1999, denying his motion for reconsideration. Hence, the petition for certiorari having been filed on 7 January 2000, the last day of the reglementary period, the Court of Appeals should not have dismissed the same on ground of late filing. In view of the foregoing, our next logical step would be to direct the Court of Appeals to resolve on its merit CA-G.R. SP No. 56549 by determining the issue raised therein on whether Judge Bayot committed grave abuse of discretion or acted without or in excess of jurisdiction in transferring the case for indirect contempt to Branch 111 of the court below. Such step would, however, unduly prolong the disposition of the main action. We shall act on said petition, considering that the lone issue raised is one of law.12 It is already an accepted rule of procedure for us to strive to settle the entire controversy in a single proceeding, leaving no root or branch to bear the seeds of future litigation. 13 If, based on the records, the pleadings, and other evidence, the dispute can be resolved by us, we will do so to serve the ends of justice, instead of remanding the case to the lower court for further proceedings. 14 In his petition for review on certiorari the Court of Appeals in CA-G.R. SP No. 56549, petitioner contended that Judge Bayot committed grave abuse of discretion in refusing to act on his motion to dismiss the indirect contempt case and on his motion for reconsideration, and, instead, referred the case to Branch 111 of the court below, the court which issued the order subject of the case for indirect contempt. The pertinent rules on the matter are Sections 4 and 5, Rule 71 of the Rules of Court, which read: SECTION 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. SECTION 5. Where charge to be filed Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 11 of this Rule. "In whatever context it may arise, contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. As a matter of practical judicial administration, jurisdiction has been felt to properly rest in only one tribunal at a time with respect to a given controversy.''15 Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with, or whether a sufficient reason has been given for noncompliance, and, therefore, whether a contempt has been committed. 16 It is a well-established rule that the power to determine the existence of contempt of court rests exclusively with the court contemned. No court is authorized to punish a contempt against another.17 "The rationale that is usually advanced for the general rule. . . is that contempt proceedings are sui generis and are triable only by the court against whose authority the contempts are charged; the power to punish for contempt exists for the purpose of enabling a court to compel due decorum and respect in its presence and due obedience to its judgments, orders and processes and in order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof, for to submit the question of disobedience to another tribunal would operate to deprive the proceeding of half its efficiency.'' 18 Section 4, Rule 71 of the Rules of Court provides, in effect, that a charge for indirect contempt must be filed with the court contemned. Although this provision is permissive in nature, in the event of concurrent jurisdiction over cases of contempt of court, it would be a good practice to acknowledge the preferential right of the court against which the act of contempt was committed to try and punish the guilty party. 19 On the basis of the foregoing disquisition's, we find and so hold that public respondent Judge Nelson Bayot committed no error and did not act with abuse of discretion in ordering the transfer of the petition for indirect contempt, Civil Case No. 99-0480, to Branch 111 of the Regional Trial Court of Pasay City, whose order was the subject of the contempt suit. WHEREFORE, the Resolution of the Court of Appeals dated 24 January 2000 and 13 March 2000 in CA-G.R. SP No. 56549 are hereby SET ASIDE. For the reasons set forth above, said case is ordered DISMISSED, and the orders of public respondent judge dated 15 July 1999 and 22 October 1999 in Civil Case No. 99-0480 are hereby AFFIRMED. The Presiding Judge of Branch 111, Regional Trial Court of Pasay City, shall forthwith conduct the appropriate proceedings in Civil Case No. 99-0480, including the resolution of petitioner's motion to dismiss the case. No pronouncement as to costs. SO ORDERED.

G.R. No. 132174

August 20, 2001

GUALBERTO CASTRO, petitioner, vs. HONORABLE SECRETARY RICARDO GLORIA IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondent. SANDOVAL GUTIERREZ, J.: The principle of non-exhaustion of administrative remedy is not an iron-clad rule. There are instances when it may be pierced and judicial action may be resorted to immediately. The present case is one illustration.

Sought to be set aside in this petition for review on certiorari are the: (a) Decision 1 dated November 20, 1997 of the Regional Trial Court, Branch 60, Barili, Cebu dismissing Gualberto Castro's petition for mandamus; and b) Order 2 dated January 5, 1998 denying his motion for reconsideration. The factual and legal antecedents are as follows: Porfirio Gutang, Jr. filed with the Department of Education, Culture and Sports (DECS) a complaint for disgraceful and immoral conduct against petitioner Gualberto Castro, a teacher in Guibuangan Central School, Barili, Cebu. It was alleged that he has an illicit affair with Gutang's wife, petitioner's co-teacher at the same school. After hearing or on August 28, 1984, the DECS Regional Office VII, through Assistant Superintendent Francisco B. Concillo, rendered a decision declaring petitioner guilty of the offense charged. He was meted the penalty of dismissal from the service.3 The DECS Central Office affirmed Concillo's decision in an Indorsement dated March 25, 1986. 4 On July 21, 1986, petitioner filed a motion for reconsideration. Instead of resolving the motion, the DECS Central Office directed the School Division of Cebu to comment on the motion. 5 The School Division Superintendent recommended that the motion be resolved favorably. However, the recommendation was opposed by the DECS Region VII. 6 Thereafter, in his letters dated November 5, 1988 and July 19, 1990, petitioner asked the incumbent DECS Secretary to resolve his motion for reconsideration. But his letters remained unheeded, thus, on October 4, 1995, petitioner filed with the DECS Central Office a "Motion for Review Setting Aside/Modifying the Decision of Regional Director of DECS Region VII."7 DECS Secretary Ricardo Gloria (respondent) referred the motion to the Regional Director of Region VII for comment. On January 3, 1996, Regional Director Eladio C. Dioko issued a 2nd Indorsement sustaining the decision of Assistant Superintendent Concillo, thus: "This Office sustains former Director Concillo's decision that respondent Castro is guilty of Disgraceful and Immoral Conduct but posits the belief that the proper penalty as provided by law be meted out for him. In the Honorable Secretary is vested by law the power to review, reaffirm, modify or reverse decisions of a lower office. 8 In his 3rd Indorsement dated March 6, 1996, respondent Secretary denied petitioner' s motion for review. 9 Thrice thwarted, petitioner filed a petition for mandamus with the Regional Trial Court, Branch 60, Barili, Cebu, imploring that judgment be rendered ordering respondent Secretary or anyone who may have assumed the duties and functions of his office (1) to reduce his penalty from dismissal to one (1) year suspension; 2) to consider the one (1) year suspension as already served considering that he has been out of the service for more than ten (10) years; 3) to reinstate him to his former position; and 4) to pay his back salaries.10 On November 20, 1997, the trial court rendered the herein assailed decision dismissing the petition on the ground of non-exhaustion of administrative remedies. It ruled that petitioner should have appealed to the Civil Service Commission before coming to court, thus: "Considering that the Civil Service Commission has the power to review on appeal the orders or acts of respondent, petitioner has failed to exhaust administrative remedies. Non-exhaustion of administrative remedies implies absence of cause of action. Where a remedy is available within the administrative machinery, this should be resorted to before recourse can be made to the courts. The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. (Vidad v. RTC of Negros Oriental, Branch 42 , 227 SCRA 271). Mandamus If appeal or some other equally adequate remedy is still available in the ordinary course of law, the action for MANDAMUS would be improper. Sherman Vs. Horilleno, 57 Phil. 13; Fajardo Vs. Llorente, 6 Phil, 426; Paquio Vs. Del Rosario, 46 Phil. 59; Manalo v. Paredes, 47,938; Castro Revilla Vs. Garduno, 53 Phil. 934; Rural Transit Co. vs. Teodoro, 57 Phil. 11. Special Civil Actions against administrative officers should not be entertained if superior administrative officers could grant relief. Cecilio vs. Belmonte, 48 Phil. 243, 255. From the facts it is clear that the penalty of dismissal from the service was erroneously imposed upon petitioner. However, certiorari is the remedy to correct errors of judgment which are grave and arbitrary and not mandamus. Mandamus will not lie to order the reinstatement of the petitioner in his former position as Elementary Grades Teacher as it was not yet established that he is entitled to or has legal right to the office. In the case of Manalo vs. Gloria, 236 SCRA 130, the petitioner's claim for "backwages" could be the appropriate subject of an ordinary civil action as mandamus applies when there is no other plain, speedy and adequate remedy in the ordinary course of law.

In the case at bench, the Court after a judicious study and analysis on the case, has no other alternative than to DENY the present petition for lack of merit. SO ORDERED."11 Petitioner filed a motion for reconsideration but was denied. Hence, the present petition for review on certiorari. Petitioner insists that, "when the question to be settled is purely a question of law, he may go directly to the proper court so that he can have proper redress." For its part, the Office of the Solicitor General (OSG) contends that petitioner's adequate remedy was to appeal the decision of respondent Secretary to the Civil Service Commission, pursuant to the provisions of Executive Order No. 292. Since petitioner failed to exhaust administrative remedies, his petition must be dismissed for lack of cause of action. Also, the OSG argues that the remedy of mandamus to compel payment of back salary does not lie unless petitioner's right thereto is well defined. This is based on the general proposition that a public official is not entitled to any compensation if he has not rendered any service. The petition is impressed with merit. The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. It is settled that non-observance of the doctrine results in lack of a cause of action, 12which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint. 13 The doctrine is not absolute. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) When the question raised is purely legal ; 2) when the administrative body is in estoppel; 3) when the act complained of is patently illegal; 4) when there is urgent need for judicial intervention; 5) when the claim involved is small; 6) when irreparable damage will be suffered; 7) when there is no other plain, speedy and adequate remedy; 8) when strong public interest is involved; and 9 ) in quo warranto proceedings.14 Truly, a petition for mandamus is premature if there are administrative remedies available to petitioner. 15 But where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought.16 In Cortes v. Bartolome,17 a case involving a petition for mandamus, we ruled that "while it may be that nonjudicial remedies could have been available to respondent in that he could have appealed to the then Secretary of Local Government and Community Development and thereafter to the Civil Service Commission, the principle of exhaustion of administrative remedies need not be adhered to when the question is purely legal." This is because issues of law cannot be resolved with finality by the administrative officer. Appeal to the administrative officer would only be an exercise in futility.18 Thus, in the ultimate, the resolution of this case hinges on whether or not the following is a question of law or a question of fact Is dismissal from the service the proper penalty for the 1st offense of disgraceful and immoral conduct ? It is settled that for a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. And the distinction is well known. There is a question of lawwhen the doubt or differences arise as to what the law is on a certain state of facts. There is a question of fact when the doubt or differences arise as to the truth or the falsehood of alleged facts. 19 In the case at bench, petitioner no longer disputes the administrative finding of his guilt for the offense of disgraceful and immoral conduct. It is settled and final insofar as he is concerned. What petitioner only impugns is the correctness of the penalty of "dismissal from the service." He is convinced that the proper penalty for the first offense of disgraceful and immoral conduct is only suspension from the service. Undoubtedly, the issue here is a pure question of law. We need only to look at the applicable law or rule and we will be able to determine whether the penalty of dismissal is in order. We find for petitioner. Petitioner has all the reasons to seek the aid of this Court since it has been clearly established by evidence that he is a first time offender. Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292 (Otherwise known as the Administrative Code of 1987 and other Pertinent Civil Service Laws) 20 provides: "SECTION 23. Administrative offenses with its corresponding penalties are classified into grave, less grave, and light depending on the gravity of its nature and effects of said acts on the government service. The following are grave offenses with its corresponding penalties:

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(o) Disgraceful and immoral conduct <1st Offense, Suspension for six (6) months and one day (1) day to one (1) year; 2nd Offense, Dismissal.>" As correctly pointed out by petitioner, the proper penalty for the 1st offense of disgraceful and immoral conduct is only suspension for six (6) months and one (1) day to one (1) year. In fact, this has been the consistent ruling of this Court. In Aquino v. Navarro,21 a secondary guidance counselor in a public high school, was merely suspended for disgraceful and immoral conduct. In Burgos v. Aquino,22 the Court suspended a court stenographer for six months for maintaining illicit relations with the complainant's husband and for perjury in not disclosing in her personal information sheet she has a daughter as a result of that relationship. Similarly, in Nalupta Jr. v. Tapec,23a deputy sheriff was suspended for six months and one day for having a relationship with a woman other than his wife by whom he has two children. Thus: The act of respondent of having illicit relations with Consolacion Inocencio is considered disgraceful and immoral conduct within the purview of Section 36 (b) (5) of Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, for which respondent may be subjected to disciplinary action. Memorandum Circular No. 30, Series of 1989 of the Civil Service Commission has categorized disgraceful and immoral conduct as a grave offense for which a penalty of suspension for six (6) months and one (1) day shall be imposed for the first offense, while the penalty of dismissal is imposed for the second offense. (Emphasis supplied) Inasmuch as the present charge of immorality against respondent constitutes the first charge of this nature, the Court shall at this instance suspend respondent for six (6) months and one (1) day . Again, in the 1997 case of Ecube-Badel v. Badel,24 we imposed the penalty of suspension for one (1) year without pay against respondent David Badel for his first offense of immorality. It is worthy to note that even DECS Regional Director Eladio C. Dioko stated in his 2nd Indorsement dated January 3, 1996, that while he sustains Director Concillo's decision, " the proper penalty as provided by law (should) be meted out for him." The Regional Trial Court also echoed the same sentiment, thus: "From the facts, it is clear that the penalty of dismissal from the service was erroneously imposed upon petitioner. However, certiorari is the remedy to correct errors of judgment which are grave and arbitrary and not mandamus." Anent petitioner's prayer for the payment of back salaries, we find it to be without legal basis. The issue regarding payment of back salaries during the period that a member of the civil service is out of work but subsequently ordered reinstated is settled in our jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed if he is found innocent of the charges. However, if the employee is not completely exenorated of the charges25 such as when the penalty of dismissal is reduced to mere suspension, he would not be entitled to the payment of his back salaries. In Yacia v. City of Baguio,26 the decision of the Commissioner of Civil Service ordering the dismissal of a government employee on the ground of dishonesty was immediately executed pending appeal. But, on appeal, the Civil Service Board of Appeals modified that penalty of dismissal to a fine equivalent to six months pay. This Court ruled that the employee's claim for back wages, for the period during which he was not allowed to work because of the execution of the decision of the Commissioner, should be denied. The general proposition is that a public official is not entitled to any compensation if he has not rendered any service. As he works, he shall earn. Since petitioner did not work during the period for which he is now claiming salaries, there can be no legal or equitable basis to order the payment of such salaries. 27 Thus, we reduce the penalty of dismissal imposed upon petitioner to suspension for a period of one year without pay. Considering that he has been out of the service for quite a long time, we feel he has been sufficiently punished for his offense. We, therefore, order his reinstatement. WHEREFORE, the petition is hereby GRANTED. The Regional Trial Court's Decision dated November 20, 1997 and Order dated January 5, 1998 are SET ASIDE. The penalty of dismissal imposed upon petitioner is reduced to one (1) year suspension from office without pay. In view of the length of time petitioner has been out of the service, we consider the penalty of suspension to have been fully served. He must, therefore, be REINSTATED to office immediately. SO ORDERED.