Article IX, Section 2 (1) of the 1987 Constitution
FIRST DIVISION
[G.R. No. 98107. August 18, 1997]
BENJAMIN C. JUCO, petitioner, vs. NATIONAL
LABOR RELATIONS COMMISSION and NATIONAL
HOUSING CORPORATION, respondents.
DECISION
HERMOSISIMA, JR., J.:
This is a petition for certiorari to set aside the
Decision of the National Labor Relations
Commission (NLRC) dated March 14, 1991, which
reversed the Decision dated May 21, 1990 of
Labor Arbiter Manuel R. Caday, on the ground of
lack of jurisdiction.
Petitioner Benjamin C. Juco was hired as a project
engineer of respondent National Housing
Corporation (NHC) from November 16, 1970 to
May 14, 1975. On May 14, 1975, he was
separated from the service for having been
implicated in a crime of theft and/or malversation
of public funds.
On March 25, 1977, petitioner filed a complaint
for illegal dismissal against the NHC with the
Department of Labor.
On September 17, 1977, the Labor Arbiter
rendered a decision dismissing the complaint on
the ground that the NLRC had no jurisdiction over
the case.
Petitioner then elevated the case to the NLRC
which rendered a decision on December 28, 1982,
reversing the decision of the Labor Arbiter.
Dissatisfied with the decision of the NLRC,
respondent NHC appealed before this Court and
on January 17, 1985, we rendered a decision, the
dispositive portion thereof reads as follows:
“WHEREFORE, the petition is hereby GRANTED.
The questioned decision of the respondent
National Labor Relations Commission is SET
ASIDE. The decision of the Labor Arbiter
dismissing the case before it for lack of
jurisdiction is REINSTATED.”
On January 6, 1989, petitioner filed with the Civil
Service Commission a complaint for illegal
dismissal, with preliminary mandatory injunction.
On February 6, 1989, respondent NHC moved for
the dismissal of the complaint on the ground that
the Civil Service Commission has no jurisdiction
over the case.
On April 11, 1989, the Civil Service Commission
issued an order dismissing the complaint for lack
of jurisdiction. It ratiocinated that:
“The Board finds the comment and/or motion to
dismiss meritorious. It was not disputed that NHC
is a government corporation without an original
charter but organized/created under the
Corporate Code.
provides:
‘The civil service embraces all branches,
subdivisions, instrumentalities and agencies of
the government, including government owned
and controlled corporations with original charters.’
(underscoring supplied)
From the aforequoted constitutional provision, it is
clear that respondent NHC is not within the scope
of the civil service and is therefore beyond the
jurisdiction of this board. Moreover, it is pertinent
to state that the 1987 Constitution was ratified
and became effective on February 2, 1987.
WHEREFORE, for lack of jurisdiction, the instant
complaint is hereby dismissed.”
On April 28, 1989, petitioner filed with respondent
NLRC a complaint for illegal dismissal with
preliminary mandatory injunction against
respondent NHC.
On May 21, 1990, respondent NLRC thru Labor
Arbiter Manuel R. Caday ruled that petitioner was
illegally dismissed from his employment by
respondent as there was evidence in the record
that the criminal case against him was purely
fabricated, prompting the trial court to dismiss the
charges against him. Hence, he concluded that
the dismissal was illegal as it was devoid of basis,
legal or factual.
He further ruled that the complaint is not barred
by prescription considering that the period from
which to reckon the reglementary period of four
years should be from the date of the receipt of
the decision of the Civil Service Commission
promulgated on April 11, 1989. He also
ratiocinated that:
“It appears x x x complainant filed the complaint
for illegal dismissal with the Civil Service
Commission on January 6, 1989 and the same was
dismissed on April 11, 1989 after which on April
28, 1989, this case was filed by the complainant.
Prior to that, this case was ruled upon by the
Supreme Court on January 17, 1985 which
enjoined the complainant to go to the Civil Service
Commission which in fact, complainant did.
Under the circumstances, there is merit on the
contention that the running of the reglementary
period of four (4) years was suspended with the
filing of the complaint with the said Commission.
Verily, it was not the fault of the respondent for
failing to file the complaint as alleged by the
respondent but due to, in the words of the
complainant, a ‘legal knot’ that has to be
untangled.”
Thereafter, the Labor Arbiter rendered a decision,
the dispositive portion of which reads:
"Premises considered, judgment is hereby
rendered declaring the dismissal of the
complainant as illegal and ordering the
respondent to immediately reinstate him to his
former position without loss of seniority rights
with full back wages inclusive of allowance and to
his other benefits or equivalent computed from
the time it is withheld from him when he was
dismissed on March 27, 1977, until actually
reinstated.”
On June 1, 1990, respondent NHC filed its appeal
before the NLRC and on March 14, 1991, the
NLRC promulgated a decision which reversed the
decision of Labor Arbiter Manuel R. Caday on the
ground of lack of jurisdiction.
The primordial issue that confronts us is whether
or not public respondent committed grave abuse
of discretion in holding that petitioner is not
governed by the Labor Code.
Under the laws then in force, employees of
government-owned and /or controlled
corporations were governed by the Civil Service
Law and not by the Labor Code. Hence,
Article 277 of the Labor Code (PD 442) then
provided:
"The 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 x x x.”
The 1973 Constitution, Article II-B, Section 1(1),
on the other hand provided:
“The Civil Service embraces every branch,
agency, subdivision and instrumentality of the
government, including government-owned or
controlled corporations.”
Although we had earlier ruled in National Housing
Corporation v. Juco, that employees of
government-owned and/or controlled
corporations, whether created by special law or
formed as subsidiaries under the general
Corporation Law, are governed by the Civil
Service Law and not by the Labor Code, this ruling
has been supplanted by the 1987 Constitution.
Thus, the said Constitution now provides:
“The civil service embraces all branches,
subdivision, instrumentalities, and agencies of the
Government, including government owned or
controlled corporations with original charter.”
(Article IX-B, Section 2[1])
In National Service Corporation (NASECO) v.
National Labor Relations Commission, we had the
occasion to apply the present Constitution in
deciding whether or not the employees of
NASECO are covered by the Civil Service Law or
the Labor Code notwithstanding that the case
arose at the time when the 1973 Constitution was
still in effect. We ruled that the NLRC has
jurisdiction over the employees of NASECO on the
ground that it is the 1987 Constitution that
governs because it is the Constitution in place at
the time of the decision. Furthermore, we ruled
that the new phrase “with original charter” means
that government-owned and controlled
corporations refer to corporations chartered by
special law as distinguished from corporations
organized under the Corporation Code. Thus,
NASECO which had been organized under the
general incorporation stature and a subsidiary of
the National Investment Development
Corporation, which in turn was a subsidiary of the
Philippine National Bank, is excluded from the
purview of the Civil Service Commission.
We see no cogent reason to depart from the
ruling in the aforesaid case.
In the case at bench, the National Housing
Corporation is a government owned corporation
organized in 1959 in accordance with Executive
Order No. 399, otherwise known as the Uniform
Charter of Government Corporation, dated
January 1, 1959. Its shares of stock are and have
been one hundred percent (100%) owned by the
Government from its incorporation under Act
1459, 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. Considering
the fact that the NHA had been incorporated
under act 1459, the former corporation law, it is
but correct to say that it is a government-owned
or controlled corporation whose employees are
subject to the provisions of the Labor Code. This
observation is reiterated in recent case of Trade
Union of the Philippines and Allied Services
(TUPAS) v. National Housing Corporation, where
we held that the NHA is now within the jurisdiction
of the Department of Labor and Employment, it
being a government-owned and/or controlled
corporation without an original charter.
Furthermore, we also held that the workers or
employees of the NHC (now NHA) undoubtedly
have the right to form unions or employee’s
organization and that there is no impediment to
the holding of a certification election among them
as they are covered by the Labor Code.
Thus, the NLRC erred in dismissing petitioner’s
complaint for lack of jurisdiction because the rule
now is that the Civil Service now covers only
government-owned or controlled corporations
with original charters. Having been incorporated
under the Corporation Law, its relations with its
personnel are governed by the Labor Code and
come under the jurisdiction of the National Labor
Relations Commission.
One final point. Petitioners have been tossed
from one forum to another for a simple illegal
dismissal case. It is but apt that we put an end to
his dilemma in the interest of justice.
WHEREFORE, the decision of the NLRC in NLRC
NCR-04-02036089 dated March 14, 1991 is
hereby REVERSED and the Decision of the Labor
Arbiter dated May 21, 1990 is REINSTATED.
SO ORDERED.
Padilla, (Chairman), Bellosillo, Vitug, and
Kapunan, JJ., concur.
Rollo, pp. 20-21.
Id., pp. 22-26.
Id., pp. 27-37.
Id., pp. 38-42.
Id., pp. 43-47.
Id., p. 52.
Id., pp. 53-58.
Id., p. 68.
Id., p. 69.
Id., pp. 78-86.
134 SCRA 172 (1985).
168 SCRA 122 [1988].
National Housing Corporation vs. Juco, 134 SCRA
172 (1985).
173 SCRA 33 (1989).
PNOC-Energy Development Corporation v. NLRC,
201 SCRA 487 1991 The NHC (now NHA)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 129133 November 25, 1998
ECONOMIC INTELLIGENCE AND
INVESTIGATION BUREAU, petitioner,
vs.
HON. COURT OF APPEALS and CIVIL SERVICE
COMMISSION, respondents.
PURISIMA, J.:
Before the Court is a Petition for Review on
Certiorari under Rule 45 of the Revised Rules of
Court to review and set aside the 7 November
1996 Decision 1 and 18 March 1997 Resolution 2 of
the Court of Appeals 3 in CA- G.R. SP No. 37720.
As culled by the Court of Appeals, the antecedent
facts that matter are, as follows:
In a letter dated October 13, 1988, respondent
CSC through Chairman Patricia A. Sto. Tomas
required the Secretary of Finance to submit to the
CSC all appointments in the Economic Intelligence
and Investigation Bureau (EIIB).
Instead of complying with the said letter,
petitioner Jose T. Almonte, as Commissioner of
EIIB, wrote a letter dated March 29, 1989, to
respondent CSC, requesting for confirmation of
EIIB's exemption from CSC rules and regulations
with respect to appointments and other personnel
actions invoking as basis for such exemption PD
No. 1458 and LOI No. 71.
On June 21, 1989, respondent CSC issued the
subject Resolution No. 89-400, denying petitioner
Almonte's request for exemption of the EIIB from
the coverage of the civil service rules and
regulations and reiterating its order that
petitioner EIIB submit to the CSC all appointments
to career or non-career positions in the Bureau.
Not having received any compliance from
petitioners, respondent CSC, in its Order of
December 7, 1990, directed petitioner Jose T.
Almonte to immediately implement Resolution No.
89-400, with a warning that any EIIB official who
shall fail or refuse to comply with the said order
shall be held liable for indirect contempt.
On June 4, 1991, respondent CSC issued another
order, requiring petitioner Almonte to Show cause
why he should not be cited for indirect contempt
for his continued refusal to implement or comply
with CSC Resolution No. 89-400 and the Order of
December 7, 1990.
In a letter, dated June 13, 1991, petitioner
Almonte explained to the respondent CSC the
reasons of the EIIB for its inability to comply with
Resolution No. 89-400. He invoked PD No. 1458
and LOI No. 71 exempting the EIIB from the
coverage of civil service rules and regulations on
appointments and other personnel actions.
Petitioner Almonte prayed that Resolution No. 89-
400, the Order of June 4, 1991, and the
subsequent orders be set aside.
On August 22, 1991, respondent CSC issued an
order, finding petitioner Almonte guilty of indirect
contempt of the Commission, the dispositive
portion of which reads as follows:
WHEREFORE, foregoing premises considered, the
commission hereby resolves to find and adjudge
Jose T. Almonte, Commissioner, EIIB, guilty of
indirect contempt of the Commission pursuant to
Section 12 (11), Book V, Subtitle A of Executive
order No. 292 and memorandum Circular No. 42,
series of 1990. He is thus meted the penalty of
fine P1,000.00 each day from the date of receipt
of this Order dated December 7, 1990.
Accordingly, the Cashier of the EIIB is hereby
directed to deduct from the salary of
Commissioner Almonte the amount of P1,000.00
each day of his failure to comply with the above
CSC Order. Let copies of this Order be furnished
the Resident Auditor of the EIIB as well as the
COA, the Secretary of the Department of Finance
and the CSFO-DND, for their information and
guidance.
SO ORDERED.
Dissatisfied therewith, petitioner went to the
Court of Appeals on a Petition for Certiorari.
However, on November 7, 1996, the Court of
Appeals dismissed the petition; ratiocinating thus:
The 1987 Constitution is so clear and categorical
in its mandate that:
Art. IX (B), Section 2 (1). — The civil service
embraces all branches, subdivisions,
instrumentalities, and agencies of the
Government, including government-owned or
controlled corporations with original charters.
The civil service contemplated in the
constitutional provision is very comprehensive in
its scope, that it includes every category of officer
or employee of the government, its branches,
subdivisions and instrumentalities, and even
employees of private corporations, if such
corporations are controlled or owned by the
government with original charters.
In the light of his constitutional mandate,
petitioner EIIB, being a government agency, is
necessarily embraced by the civil service. The fact
that positions in the EIIB are primarily confidential
did not place it outside the domain of civil
servants, since "it is conceded that one holding in
the Government a primarily confidential position
is in the Civil Service" (Ingles v. Mutuc, 26 SCRA
171). That fact merely exempts confidential
positions in the EIIB from the constitutional rule
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 [Art. IX (B), Sec. 2 (2) ]".
And it is in this sense that the provisions of PD
1458, particularly Section 5 and LOI 71 relied
upon by the petitioners should be interpreted.
Neither does petitioners' contention that "if EIIB's
positions and personnel actions will be opened,
one may know its operations, movements,
targets, strategies, and tactics and the whole of
its being" deserve merit, as the same is pure
speculation and conjecture. EIIB officials and
personnel remain civil servants and as correctly
argued by the Solicitor General, "EIIB officials
occupying confidential positions, remain
accountable to the people and are subject to the
same state policies on morale, efficiency,
integrity, responsiveness and courtesy in the civil
service". Thus We hold that the personnel in the
EEIB are covered by the Civil Service.
xxx xxx xxx
WHEREFORE, the Court upholds Resolution No.
89-400 but declares CSC Orders of December 7,
1990, June 4, 1991, and of August 22, 1991, as
NULL AND VOID, the Civil Service Commission not
having jurisdiction to cite and punish
Commissioner Jose T. Almonte of the Economic
Intelligence and Investigation Bureau for indirect
contempt of the Commission.
With the denial of its motion for reconsideration
by Resolution, dated March 18, 1997, of the Court
of Appeals, petitioner found its way to this Court
via the present Petition; contending, that:
IN HOLDING THAT PETITIONER IS COVERED BY
CIVIL SERVICE, RESPONDENT COURT VIOLATED
P.D. No. 1458 AND LOI No. 71 WHICH EXPRESSLY
EXEMPT IT FROM CIVIL SERVICE COVERAGE.
The pivotal issue here is: whether or not the
petitioner, Economic Intelligence Investigation
Bureau (EIIB), is embraced by the Civil Service.
Sec. 2, subparagraph (1), Article IX, paragraph (B)
of the 1987 Constitution provides:
The civil service embraces all branches,
subdivisions, instrumentalities, agencies of the
Government, including government-owned or
controlled corporations with original charter.
Succinct and clear is the provision of the
Constitution in point that all government
agencies, without exception, are covered by the
civil service.
Petitioner EIIB is a government agency under the
Department of Finance as provided by Section 17,
Chapter 4, Title II, Book IV of the 1987
Administrative Code. 4 Therefore, EIIB is within the
ambit of the Civil Service Law.
The civil service within the contemplation of the
aforecited constitutional provision is
comprehensive in scope. It embraces all officers
and employees of the government, its branches,
subdivisions and instrumentalities. Even
employees of corporations owned or controlled by
the government, with original charters, are
covered thereby.
Petitioner contends that EIIB is expressly
exempted from civil service coverage, under
Section 5 of P.D. No. 1458, which provides:
Application of WAPCO and Civil Service Rules —
Personnel of the FDIIB shall be exempted from
WAPCO and Civil Service Rules and Regulations
relative to appointments and other personnel
actions: Provided, That they shall be entitled to
the benefits and privileges accorded to
government employees . . .
On the other hand, LOI No. 71, the Implementing
Rules of P.D. No. 1458, reads:
10. It is further directed that personnel of the BII
shall be exempt from OCPC and Civil Service
Rules and Regulations relative to appointments
and other personnel actions; Provided, That they
shall be entitled to the benefits accorded to
government employees . . .
Petitioner's submission is barren of merit.
The aforecited provisions of law provide for the
exemption of petitioner EIIB only from Civil
Service Rules and Regulations relative to
appointments and other personnel actions, but
not from the Civil Service Law or Civil Service
Rules and Regulations relative to any other
matter.
Neither can we uphold petitioner's reliance on
Section 26 of Executive Order No. 127, 5
Petitioner, in gist, asserts exemption from Civil
Service coverage since the Bureau forms part of
the intelligence community created under the
said executive Order.
There is merit in the disquisition by the Court of
Appeals that membership of petitioner EIIB in the
intelligence community is of no moment, insofar
as application of the Civil Service Law is
concerned. The National Bureau of Investigation
(NBI), also a member of the intelligence
community which performs functions similar to
those of EIIB, e.g., intelligence gathering,
investigation, research, etc., submits to the Civil
Service Commission the appointments of all NBI
personnel, whether belonging to the career or
non-career service. Besides, in Ingles vs. Mutuc,
26 SCRA 171, this Court ruled that " . . . one
holding in the Government a primarily confidential
position is 'in the Civil Service'."
Equally untenable is petitioner's contention that,
because the personnel of EIIB are occupying jobs
highly confidential in nature, the EIIB should not
be required to submit the names of its personnel
to the Civil Service Commission.
In Almonte vs. Vasquez, 244 SCRA 286 [1995],
EIIB was ordered by the Ombudsman to produce
documents relating to personnel services and
salary vouchers of EIIB employees. The Bureau
pleaded that such documents are classified, and
knowledge of EIIB's documents relative to its
Personnel Services Funds and its plantilla will
inevitably lead to knowledge of its operations,
movements, targets and strategies, which could
destroy the Bureau itself. The Court ruled that the
required documents can be examined by the
Ombudsman; explaining that:
. . . [T]here is no claim that military or diplomatic
secrets will be disclosed by the production of
records pertaining to the personnel of the EIIB.
Indeed, EIIB's function is the gathering and
evaluation of intelligence reports and information
regarding "illegal activities affecting the national
economy, such as, but not limited to, economic
sabotage, smuggling, tax evasion, dollar salting."
Consequently, while in cases which involve state
secrets it may be sufficient to determine from the
circumstance of the case that there is reasonable
danger that compulsion of the evidence will
expose military matters without compelling
production, no similar excuse can be made for a
privilege resting on other considerations.
Nor has our attention been called to any law or
regulation which considers records of the EIIB as
classified information . . .
All things viewed in proper perspective, we are of
the opinion, and so hold, that the Court of Appeals
erred not in holding that:
. . . [R]espondent CSC's act of requiring petitioner
EIIB to submit to it all appointments in the
Bureau, for appropriate action, is part of its
administrative function as the central personnel
agency of the government.
WHEREFORE, the petition is hereby DENIED; and
the Decision of the Court of Appeals in CA-GR SP
No. 37720 AFFIRMED, without any pronouncement
as to costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez, Quisumbing and Pardo, JJ., concur.
Footnotes
1 "Annex A," Petition; Rollo, pp. 12-25.
2 "Annex B, "Petition; Rollo, pp. 26-27.
3 Eighth Division composed of Justices Jaime M.
Lantin (Chairman and the Ponente), Lourdes K.
Tayao-Jaguros and B.A. Adefuin-De La Cruz
(Members).
4 Sec. 26, E.O. No. 127 reads. as follows:
"Economic Intelligence and Investigation Bureau
— The Economic Intelligence and Investigation
Bureau, which shall be headed by and subject to
the supervision and control of the Commissioner
who shall be appointed by the President upon the
recommendation of the Minister, shall have the
following functions:
(1) Receive, gather and evaluate intelligence
reports and information and evidence on the
nature, modes and extent of illegal activities
affecting the national economy, such as, but not
limited to, economic sabotage, smuggling, tax
evasion, and dollar-salting, investigate the same
and aid in the prosecution of cases;
(2) Coordinate with external agencies in
monitoring the financial and economic activities of
persons or entities, whether domestic or foreign,
which may adversely affect national financial
interest with the goal of regulating, controlling or
preventing said activities;
(3) Provide all intelligence units of operating
Bureaus or Offices under the Ministry with the
general framework and guidelines in the conduct
of intelligence and investigation works;
(4) Supervise, monitor and coordinate all the
intelligence and investigation operations of the
operating Bureaus and Offices under the Ministry;
(5) Investigate, hear and file upon clearance by
the Minister, anti-graft and corruption cases
against personnel of the Ministry and its
constituent units;
(6) Perform such other appropriate functions as
may be assigned by the Minister or his deputies.
5 See Footnote No. 4; same provision of Section
17, Chapter 4, Title II, Book IV of the 1987
Administrative Code.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88979 February 7, 1992
LYDIA O. CHUA, petitioner,
vs.
THE CIVIL SERVICE COMMISSION, THE
NATIONAL IRRIGATION ADMINISTRATION and
THE DEPARTMENT OF BUDGET AND
MANAGEMENT, respondents.
PADILLA, J.:
Pursuant to the policy of streamlining and
trimming the bureaucracy, Republic Act No. 6683
was approved on 2 December 1988 providing for
benefits for early retirement and voluntary
separation from the government service as well
as for involuntary separation due to
reorganization. Deemed qualified to avail of its
benefits are those enumerated in Sec. 2 of the
Act, as follows:
Sec. 2. Coverage. — This Act shall cover all
appointive officials and employees of the National
Government, including government-owned or
controlled corporations with original charters, as
well as the personnel of all local government
units. The benefits authorized under this Act shall
apply to all regular, temporary, casual and
emergency employees, regardless of age, who
have rendered at least a total of two (2)
consecutive years of government service as of the
date of separation. Uniformed personnel of the
Armed Forces of the Philippines including those of
the PC-INP are excluded from the coverage of this
Act.
Petitioner Lydia Chua believing that she is
qualified to avail of the benefits of the program,
filed an application on 30 January 1989 with
respondent National Irrigation Administration
(NIA) which, however, denied the same; instead,
she was offered separation benefits equivalent to
one half (1/2) month basic pay for every year of
service commencing from 1980. A recourse by
petitioner to the Civil Service Commission yielded
negative results. 1 Her letter for reconsideration
dated 25 April 1989 pleaded thus:
xxx xxx xxx
With due respect, I think the interpretation of the
Honorable Commissioner of RA 6683 does not
conform with the beneficent purpose of the law.
The law merely requires that a government
employee whether regular, temporary,
emergency, or casual, should have two
consecutive years of government service in order
to be entitled to its benefits. I more than meet the
requirement. Persons who are not entitled are
consultants, experts and contractual(s). As to the
budget needed, the law provides that the
Department of Budget and Management will
shoulder a certain portion of the benefits to be
allotted to government corporations. Moreover,
personnel of these NIA special projects art entitled
to the regular benefits, such (sic) leaves,
compulsory retirement and the like. There is no
reason why we should not be entitled to RA 6683.
xxx xxx xxx 2
Denying the plea for reconsideration, the Civil
Service Commission (CSC) emphasized:
xxx xxx xxx
We regret to inform you that your request cannot
be granted. The provision of Section 3.1 of Joint
DBM-CSC Circular Letter No. 89-1 does not only
require an applicant to have two years of
satisfactory service on the date of
separation/retirement but further requires said
applicant to be on a casual, emergency,
temporary or regular employment status as of
December 2, 1988, the date of enactment of R.A.
6683. The law does not contemplate contractual
employees in the coverage.
Inasmuch as your employment as of December
31, 1988, the date of your separation from the
service, is co-terminous with the NIA project which
is contractual in nature, this Commission shall
sustain its original decision.
xxx xxx xxx 3
In view of such denial, petitioner is before this
Court by way of a special civil action for certiorari,
insisting that she is entitled to the benefits
granted under Republic Act No. 6683. Her
arguments:
It is submitted that R.A. 6683, as well as Section
3.1 of the Joint DBM-CSC Circular Letter No. 89-1
requires an applicant to be on a casual,
emergency, temporary or regular employment
status. Likewise, the provisions of Section 23 (sic)
of the Joint DBM-CSC Circular Letter No. 88-1,
implementing guidelines of R.A. No. 6683,
provides:
"2.3 Excluded from the benefits under R.A. No.
6683 are the following:
a) Experts and Consultants hired by agencies for a
limited period to perform specific activities or
services with a definite expected output: i.e.
membership in Task Force, Part-Time,
Consultant/Employees.
b) Uniformed personnel of the Armed Forces of
the Philippines including those of the Philippine
Constabulary and Integrated National Police (PC-
INP).
c) Appointive officials and employees who retire
or elect to be separated from the service for
optional retirement with gratuity under R.A. No.
1616, 4968 or with pension under R.A. No. 186, as
amended by R.A. No. 6680 or P.D. No. 1146, an
amended, or vice- versa.
d) Officials and employees who retired voluntarily
prior to the enactment of this law and have
received the corresponding benefits of that
retirement/separation.
e) Officials and employees with pending cases
punishable by mandatory separation from the
service under existing civil service laws, rules and
regulations; provided that if such officials and
employees apply in writing within the prescriptive
period for the availment of the benefits herein
authorized, shall be allowed only if acquitted or
cleared of all charges and their application
accepted and approved by the head of office
concerned."
Based on the above exclusions, herein petitioner
does not belong to any one of them. Ms. Chua is a
full time employee of NIA entitled to all the
regular benefits provided for by the Civil Service
Commission. She held a permanent status as
Personnel Assistant A, a position which belongs to
the Administrative Service. . . . If casuals and
emergency employees were given the benefit of
R.A. 6683 with more reason that this petitioner
who was holding a permanent status as Personnel
Assistant A and has rendered almost 15 years of
faithful, continuous service in the government
should be similarly rewarded by the beneficient
(sic) purpose of the law. 4
The NIA and the Civil Service Commission
reiterate in their comment petitioner's exclusion
from the benefits of Republic Act No. 6683,
because:
1. Petitioner's employment is co-terminous with
the project per appointment papers kept by the
Administrative Service in the head office of NIA
(the service record was issued by the Watershed
Management and Erosion Control Project
(WMECP), Pantabangan, Nueva Ecija). The project,
funded by the World Bank, was completed as of
31 December 1988, after which petitioner's
position became functus officio.
2. Petitioner is not a regular and career employee
of NIA — her position is not included in its regular
plantilla. She belongs to the non-career service
(Sec. 6, P.D. No. 807) which is inherently short-
lived, temporary and transient; on the other hand,
retirement presupposes employment for a long
period. The most that a non-career personnel can
expect upon the expiration of his employment is
financial assistance. Petitioner is not even
qualified to retire under the GSIS law.
3. Assuming arguendo that petitioner's
appointment is permanent, security of tenure is
available only for the term of office (i.e., duration
of project).
4. The objective of Republic Act No. 6683 is not
really to grant separation or retirement benefits
but reorganization 5 to streamline government
functions. The application of the law must be
made consistent with the purpose for which it was
enacted. Thus, as the expressed purpose of the
law is to reorganize the government, it will not
have any application to special projects such as
the WMECP which exists only for a short and
definite period. This being the nature of special
projects, there is no necessity for offering its
personnel early retirement benefits just to induce
voluntary separation as a step to reorganization.
In fact, there is even no need of reorganizing the
WMECP considering its short and limited life-span.
6
5. The law applies only to employees of the
national government, government-owned or
controlled corporations with original charters and
local government units.
Due to the impossibility of reconciling the
conflicting interpretations of the parties, the Court
is called upon to define the different classes of
employees in the public sector (i.e. government
civil servants).
Who are regular employees? The Labor Code in
Art. 280 (P.D. No. 492, as amended) deems an
employment regular where the employee has
been engaged to perform activities which are
usually necessary or desirable in the usual
business or trade of the employer. No equivalent
definition can be found in P.D.No. 807
(promulgated on 6 October 1975, which
superseded the Civil Service Act of 1965 — R.A.
No. 2260) or in the Administrative Code of 1987
(Executive Order No. 292 promulgated on 25 July
1987). The Early Retirement Law itself (Rep. Act
No. 6683) merely includes such class of
employees (regular employees) in its coverage,
unmindful that no such specie is employed in the
public sector.
The appointment status of government
employees in the career service is classified as
follows:
1. permanent — one issued to a person who has
met the requirements of the position to which
appointment is made, in accordance with the
provisions of the Civil Service Act and the Rules
and Standards promulgated in pursuance thereof;
7 confidential staff;
2. temporary — In the absence of appropriate
eligibles and it becomes necessary in the public
interest to fill a vacancy, a temporary
appointment should be issued to a person who
meets all the requirements for the position to
which he is being appointed except the
appropriate civil service eligibility: Provided, That
such temporary appointment shall not exceed
twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible
becomes available. 8
The Administrative Code of 1987 characterizes
the Career Service as:
(1) Open Career positions for appointment to
which prior qualification in an appropriate
examination is required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the
faculty and academic staff of state colleges and
universities, and scientific and technical positions
in scientific or research institutions which shall
establish and maintain their own merit systems;
(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.
(4) Career officers, other than those in the Career
Executive Service, who are appointed by the
President, such as the Foreign Service Officers in
the Department of Foreign Affairs;
(5) Commission officers and enlisted men of the
Armed Forces which shall maintain a separate
merit system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental
or proprietary functions, who do not fall under the
non-career service; and
(7) Permanent laborers, whether skilled, semi-
skilled, or unskilled. 9
The Non-Career Service, on the other hand, is
characterized by:
. . . (1) entrance on bases other than those of the
usual tests of merit and fitness utilized for the
career service; and (2) tenure which is limited to a
period specified by law, or which is coterminous
with that of the appointing authority or subject to
his pleasure, or which is limited to the duration of
a particular project for which purpose
employment was made.
Included in the non-career service are:
1. elective officials and their personal or
2. secretaries and other officials of Cabinet rank
who hold their positions at the pleasure of the
President and their personal confidential staff(s);
3. Chairman and Members of Commissions and
boards with fixed terms of office and their
personal or confidential staff;
4. contractual personnel or those whose
employment in the government is in accordance
with a special contract to undertake a specific
work or job requiring special or technical skills not
available in the employing agency, to be
accomplished within a specific period, which in no
case shall exceed one year and performs or
accomplishes the specific work or job, under his
own responsibility with a minimum of direction
and supervision from the hiring agency.
5. emergency and seasonal personnel. 10
There is another type of non-career employee:
Casual — where and when employment is not
permanent but occasional, unpredictable,
sporadic and brief in nature (Caro v. Rilloroza, 102
Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96
Phil. 945)
Consider petitioner's record of service:
Service with the government commenced on 2
December 1974 designated as a laborer holding
emergency status with the NIA — Upper
Pampanga River Project, R & R Division. 11 From
24 March 1975 to 31 August 1975, she was a
research aide with temporary status on the same
project. On 1 September 1975 to 31 December
1976, she was with the NIA-FES III; R & R Division,
then on 1 January 1977 to 31 May 1980, she was
with NIA — UPR IIS (Upper Pampanga River
Integrated Irrigation Systems) DRD. On 1 June
1980, she went to NIA — W.M.E.C.P. (Watershed
Management & Erosion Control Project) retaining
the status of temporary employee. While with this
project, her designation was changed to
personnel assistant on 5 November 1981; starting
9 July 1982, the status became permanent until
the completion of the project on 31 December
1988. The appointment paper 12 attached to the
OSG's comment lists her status as co-terminus
with the Project.
The employment status of personnel hired under
foreign — assisted projects is considered co-
terminous, that is, they are considered employees
for the duration of the project or until the
completion or cessation of said project (CSC
Memorandum Circular No. 39, S. 1990, 27 June
1990).
Republic Act No. 6683 seeks to cover and benefits
regular, temporary, casual and emergency
employees who have rendered at least a total of
two (2) consecutive years government service.
Resolution No. 87-104 of the CSC, 21 April 1987,
provides:
WHEREAS, pursuant to Executive Order No. 966
dated June 22, 1984, the Civil Service Commission
is charged with the function of determining
creditable services for retiring officers and
employees of the national government;
WHEREAS, Section 4 (b) of the same Executive
Order No. 966 provides that all previous services
by an officer/employee pursuant to a duly
approved appointment to a position in the Civil
Service are considered creditable services, while
Section 6 (a) thereof states that services rendered
on contractual, emergency or casual status are
non-creditable services;
WHEREAS, there is a need to clarify the aforesaid
provisions inasmuch as some contractual,
emergency or casual employment are covered by
contracts or appointments duly approved by the
Commission.
NOW, therefore, the Commission resolved that
services rendered on contractual, emergency or
casual status, irrespective of the mode or manner
of payment therefor shall be considered as
creditable for retirement purposes subject to the
following conditions: (emphasis provided)
1. These services are supported by approved
appointments, official records and/or other
competent evidence. Parties/agencies concerned
shall submit the necessary proof of said services;
2. Said services are on full time basis and
rendered prior to June 22, 1984, the effectivity
date of Executive Order No. 966; and
3. The services for the three (3) years period prior
to retirement are continuous and fulfill the service
requirement for retirement.
What substantial differences exist, if any,
between casual, emergency, seasonal, project,
co-terminous or contractual personnel? All are
tenurial employees with no fixed term, non-
career, and temporary. The 12 May 1989 CSC
letter of denial 13 characterized herein petitioner's
employment as co-terminous with the NIA project
which in turn was contractual in nature. The OSG
says petitioner's status is co-terminous with the
Project. CSC Memorandum Circular No. 11, series
of 1991 (5 April 1991) characterizes the status of
a co-terminous employee —
(3) Co-terminous status shall be issued to a
person whose entrance in the service is
characterized by confidentiality by the appointing
authority or that which is subject to his pleasure
or co-existent with his tenure.
The foregoing status (co-terminous) may be
further classified into the following:
a) co-terminous with the project — When the
appointment is co-existent with the duration of a
particular project for which purpose employment
was made or subject to the availability of funds
for the same;
b) co-terminous with the appointing authority —
when appointment is co-existent with the tenure
of the appointing authority.
c) co-terminous with the incumbent — when
appointment is co-existent with the appointee, in
that after the resignation, separation or
termination of the services of the incumbent the
position shall be deemed automatically abolished;
and
d) co-terminous with a specific period, e.g. "co-
terminous for a period of 3 years" — the
appointment is for a specific period and upon
expiration thereof, the position is deemed
abolished.
It is stressed, however, that in the last two
classifications (c) and (d), what is termed co-
terminous is the position, and not the appointee-
employee. Further, in (c) the security of tenure of
the appointee is guaranteed during his
incumbency; in (d) the security of tenure is
limited to a specific period.
A co-terminous employee is a non-career civil
servant, like casual and emergency employees.
We see no solid reason why the latter are
extended benefits under the Early Retirement Law
but the former are not. It will be noted that Rep.
Act No. 6683 expressly extends its benefits for
early retirement to regular, temporary, casual and
emergency employees. But specifically excluded
from the benefits are uniformed personnel of the
AFP including those of the PC-INP. It can be
argued that, expressio unius est exclusio alterius.
The legislature would not have made a specific
enumeration in a statute had not the intention
been to restrict its meaning and confine its terms
and benefits to those expressly mentioned 14 or
casus omissus pro omisso habendus est — A
person, object or thing omitted from an
enumeration must be held to have been omitted
intentionally. 15 Yet adherence to these legal
maxims can result in incongruities and in a
violation of the equal protection clause of the
Constitution.
The case of Fegurin, et al. v. NLRC, et al., 16
comes to mind where, workers belonging to a
work pool, hired and re-hired continuously from
one project to another were considered non-
project-regular and permanent employees.
Petitioner Lydia Chua was hired and re-hired in
four (4) successive projects during a span of
fifteen (15) years. Although no proof of the
existence of a work pool can be assumed, her
service record cannot be disregarded.
Art. III, Sec. 1 of the 1987 Constitution
guarantees: "No person shall be deprived of life,
liberty, or property without due process of law,
nor shall any person be denied the equal
protection of the laws."
. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We
ruled that the equal protection clause applies only
to persons or things identically situated and does
not bar a reasonable classification of the subject
of legislation, and a classification is reasonable
where (1) it is based on substantial distinctions
which make real differences; (2) these are
germane to the purpose of the law; (3) the
classification applies not only to present
conditions but also to future conditions which are
substantially identical to those of the present; (4)
the classification applies only to those who belong
to the same class. 17
Applying the criteria set forth above, the Early
Retirement Law would violate the equal protection
clause were we to sustain respondents'
submission that the benefits of said law are to be
denied a class of government employees who are
similarly situated as those covered by said law.
The maxim of Expressio unius est exclusio
alterius should not be the applicable maxim in this
case but the doctrine of necessary implication
which holds that:
No statute can be enacted that can provide all the
details involved in its application. There is always
an omission that may not meet a particular
situation. What is thought, at the time of
enactment, to be an all-embracing legislation may
be inadequate to provide for the unfolding events
of the future. So-called gaps in the law develop as
the law is enforced. One of the rules of statutory
construction used to fill in the gap is the doctrine
of necessary implication. The doctrine states that
what is implied in a statute is as much a part
thereof as that which is expressed. Every statute
is understood, by implication, to contain all such
provisions as may be necessary to effectuate its
object and purpose, or to make effective rights,
powers, privileges or jurisdiction which it grants,
including all such collateral and subsidiary
consequences as may be fairly and logically
inferred from its terms. Ex necessitate legis. And
every statutory grant of power, right or privilege
is deemed to include all incidental power, right or
privilege. This is so because the greater includes
the lesser, expressed in the Maxim, in eo plus sit,
simper inest et minus. 18
During the sponsorship speech of Congressman
Dragon (re: Early Retirement Law), in response to
Congressman Dimaporo's interpellation on
coverage of state university employees who are
extended appointments for one (1) year,
renewable for two (2) or three (3) years, 19
he
explained:
This Bill covers only those who would like to go on
early retirement and voluntary separation. It is
irrespective of the actual status or nature of the
appointment one received, but if he opts to retire
under this, then he is covered.
It will be noted that, presently Pending in
Congress, is House Bill No. 33399 (a proposal to
extend the scope of the Early Retirement Law). Its
wording supports the submission that Rep. Act
No. 6683 indeed overlooked a qualified group of
civil servants. Sec. 3 of said House bill, on
coverage of early retirement, would provide:
Sec. 3. Coverage. — It will cover all employees of
the national government, including government-
owned or controlled corporations, as well as the
personnel of all local government units. The
benefits authorized under this Act shall apply to
all regular, temporary, casual, emergency and
contractual employees, regardless of age, who
have rendered at least a total of two (2)
consecutive years government service as of the
date of separation. The term "contractual
employees" as used in this Act does not include
experts and consultants hired by agencies for a
limited period to perform specific activities or
services with definite expected output.
Uniformed personnel of the Armed Forces of the
Philippines, including those of the PC-INP are
excluded from the coverage of this Act. (emphasis
supplied)
The objective of the Early Retirement or Voluntary
Separation Law is to trim the bureaucracy, hence,
vacated positions are deemed abolished upon
early/voluntary retirement of their occupants. Will
the inclusion of co-terminous personnel (like the
petitioner) defeat such objective? In their case,
upon termination of the project and separation of
the project personnel from the service, the term
of employment is considered expired, the office
functus officio. Casual, temporary and contractual
personnel serve for shorter periods, and yet, they
only have to establish two (2) years of continuous
service to qualify. This, incidentally, negates the
OSG's argument that co-terminous or project
employment is inherently short-lived, temporary
and transient, whereas, retirement presupposes
employment for a long period. Here, violation of
the equal protection clause of the Constitution
becomes glaring because casuals are not even in
the plantilla, and yet, they are entitled to the
benefits of early retirement. How can the
objective of the Early Retirement Law of trimming
the bureaucracy be achieved by granting early
retirement benefits to a group of employees
(casual) without plantilla positions? There would,
in such a case, be no abolition of permanent
positions or streamlining of functions; it would
merely be a removal of excess personnel; but the
positions remain, and future appointments can be
made thereto.
Co-terminous or project personnel, on the other
hand, who have rendered years of continuous
service should be included in the coverage of the
Early Retirement Law, as long as they file their
application prior to the expiration of their term,
and as long as they comply with CSC regulations
promulgated for such purpose. In this connection,
Memorandum Circular No. 14, Series of 1990 (5
March 1990) implementing Rep. Act No. 6850, 20
requires, as a condition to qualify for the grant of
eligibility, an aggregate or total of seven (7) years
of government service which need not be
continuous, in the career or non-career service,
whether appointive, elective, casual, emergency,
seasonal, contractual or co-terminous including
military and police service, as evaluated and
confirmed by the Civil Service Commission. 21 A
similar regulation should be promulgated for the
inclusion in Rep. Act No. 6683 of co-terminous
personnel who survive the test of time. This would
be in keeping with the coverage of "all social
legislations enacted to promote the physical and
mental well-being of public servants" 22 After all,
co-terminous personnel, are also obligated to the
government for GSIS contributions, medicare and
income tax payments, with the general
disadvantage of transience.
In fine, the Court believes, and so holds, that the
denial by the respondents NIA and CSC of
petitioner's application for early retirement
benefits under Rep. Act No. 6683 is unreasonable,
unjustified, and oppressive, as petitioner had filed
an application for voluntary retirement within a
reasonable period and she is entitled to the
benefits of said law. While the application was
filed after expiration of her term, we can give
allowance for the fact that she originally filed the
application on her own without the assistance of
counsel. In the interest of substantial justice, her
application must be granted; after all she served
the government not only for two (2) years — the
minimum requirement under the law but for
almost fifteen (15) years in four (4) successive
governmental projects.
WHEREFORE, the petition is GRANTED.
Let this case be remanded to the CSC-NIA for a
favorable disposition of petitioner's application for
early retirement benefits under Rep. Act No.
6683, in accordance with the pronouncements in
this decision.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Cruz, Paras,
Feliciano, Bidin, Griño-Aquino, Medialdea,
Regalado, Davide, Jr., Romero and Nocon, JJ.,
concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur but only insofar as our rulings are applied
to RA 6683 applicants.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur but only insofar as our rulings are applied
to RA 6683 applicants.
Footnotes
1 Letter of Commissioner Samilo Borlongay, 17
March 1989.
2 Annex "E", Rollo, P. 11
3 Annex "F", Rollo, p. 14.
4 Rollo, p. 24-25.
5 AN ACT PROVIDING BENEFITS FOR EARLY,
RETIREMENT AND VOLUNTARY SEPARATION FROM
THE GOVERNMENT SERVICE, AS WELL AS
INVOLUNTARY SEPARATION OF CIVIL SERVICE
OFFICERS AND EMPLOYEES PURSUANT TO
VARIOUS EXECUTIVE ORDERS AUTHORIZING
GOVERNMENT REORGANIZATION AFTER THE
RATIFICATION OF THE 1987 CONSTITUTION
APPROPRIATING FUNDS THEREFOR, AND FOR
OTHER PURPOSES.
6 See Joint DBM-CSC Circular Letter No. 88-1, 12
December 1988, Rollo, 61.
7 Sec. 25, a and b, P.D. No. 807; see also CSC
Memorandum Circular No. 11, S. of 1991, 5 April
1991.
8 Ibid., also Perez v. City of San Carlos, G.R. No. L-
48196-R, 11 July 1978; Ata v. Namocatcat, G.R.
No. L-35703, 30 October 1972, 47 SCRA 320.
9 Executive Order No. 292, Section 7, 83 O.G. No.
39, 75 (September 1987)
10 Ibid, Section 9, p. 77.
11 Per Service Record, Rollo, p. 7.
12 Rollo, p. 70.
13 Page 3, this decision.
14 See Agpalo, Ruben. Statutory Construction,
1986 ed. p. 161.
15 People v. Manantan, 115 Phil. 664.
16 G.R. No. 54083, 28 February 1983, 120 SCRA
910.
17 Ormoc Sugar Co. v. Treasurer of Ormoc City, L-
23794, 17 February 1968.
18 Statutory Construction by Ruben E. Agpalo,
1986 ed., p. 118-119 citing In re Dick, 38 Phil. 41
(1918); City of Manila v. Gomez, G.R. No. L-37251,
August 31, 1981, 107 SCRA 98; Escribano v. Ovila,
G.R. No. L-30375, September 12, 1978, 85 SCRA
245 (1978), also Go Chico v. Martinez, 45 Phil.
256 (1923); Gatchalian v. COMELEC, G.R. No. L-
32560, October 22, 1970, 35 SCRA 435 (1970);
People v. Uy Jui Pio, 102 Phil. 679 (1957) and
People v. Aquino, 83 Phil. 614 (1949).
19 Deliberations House Bill No. 4942 — 8 March
1988, 6:30. p.m.
20 An Act to Grant Civil Service Eligibility Under
Certain Conditions to Government Employees
Under Provisional or Temporary Status Who have
rendered a Total of Seven (7) Years of Efficient
Service and for other Purposes.
21 Rule 1, Sec. 2(c) as amended by Memorandum
Circular No. 25, series of 1990, 21 May 1990.
22 See Joint CSC-DBM Circular No. 1, series of
1991, 27 June 1991.
EN BANC
[G.R. No. 139382. December 6, 2000]
THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS,
EXECUTIVE SECRETARY RONALDO B. ZAMORA,
and ATTY. CARINA J. DEMAISIP, petitioners, vs.
ATTY. JOSEFINA G. BACAL, respondent.
DECISION
MENDOZA, J.:
This case involves the appointment and transfer
of career executive service officers (CESOs).
More specifically, it concerns the “appointment”
of respondent Josefina G. Bacal, who holds the
rank of CESO III, to the position of Chief Public
Attorney in the Public Attorney’s Office, which has
a CES Rank Level I, and her subsequent transfer,
made without her consent, to the Office of the
Regional Director of the PAO.
In its decision rendered on March 25, 1999, the
Court of Appeals declared respondent Josefina G.
Bacal entitled to the position of Chief Public
Attorney in the Public Attorney’s Office.
Petitioners moved for a reconsideration, but their
motion was denied by the appeals court in its
resolution dated July 22, 1999. Hence this
petition for review on certiorari. Petitioners
contend that the transfer of respondent to the
Office of the Regional Director of the PAO is
appropriate considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career
Executive Service Examinations in 1989. On July
28, 1994, she was conferred CES eligibility and
appointed Regional Director of the Public
Attorney’s Office. On January 5, 1995, she was
appointed by then President Fidel V. Ramos to the
rank of CESO III. On November 5, 1997, she was
designated by the Secretary of Justice as Acting
Chief Public Attorney. On February 5, 1998, her
appointment was confirmed by President Ramos
so that, on February 20, 1998, she took her oath
and assumed office.
On July 1, 1998, petitioner Carina J. Demaisip was
appointed “chief public defender” by President
Joseph Estrada. Apparently because the position
was held by respondent, another appointment
paper was issued by the President on July 6, 1998
designating petitioner Demaisip as “chief public
defender (formerly chief public attorney), PUBLIC
DEFENDER'S OFFICE, DEPARTMENT OF JUSTICE
vice ATTY. JOSEFINA G. BACAL, effective July 1,
1998.” On the other hand, respondent was
appointed “Regional Director, Public Defender’s
Office” by the President.
On July 7, 1998, petitioner Demaisip took her oath
of office. President Estrada then issued a
memorandum, dated July 10, 1998, to the
personnel of the “Public Defender’s Office”
announcing the appointment of petitioner
Demaisip as “CHIEF PUBLIC DEFENDER.”
Petitioner Secretary of Justice was notified of the
appointments of petitioner Demaisip and
respondent Bacal on July 15, 1998.
On July 17, 1998, respondent filed a petition for
quo warranto questioning her replacement as
Chief Public Attorney. The petition, which was
filed directly with this Court, was dismissed
without prejudice to its refiling in the Court of
Appeals. Accordingly, respondent brought her
case in the Court of Appeals which, on March 25,
1999, ruled in her favor, finding her to be lawfully
entitled to the Office of Chief Public Attorney.
Petitioners seek the reversal of the decision of the
Court of Appeals on the following grounds ¾
I. THE COURT OF APPEALS ERRED IN RULING
THAT RESPONDENT JOSEFINA G. BACAL, A
CAREER EXECUTIVE SERVICE OFFICER, HAS A
VALID AND VESTED RIGHT TO THE POSITION OF
CHIEF PUBLIC ATTORNEY AND, AS SUCH, CANNOT
BE REASSIGNED OR TRANSFERRED TO THE
POSITION OF REGIONAL DIRECTOR, PUBLIC
ATTORNEY’S OFFICE, DEPARTMENT OF JUSTICE.
II. THE COURT OF APPEALS ERRED IN RULING
THAT RESPONDENT BACAL, WHO HOLDS A CES
RANK LEVEL III, WAS REASSIGNED OR
TRANSFERRED TO A POSITION WHICH DOES NOT
CORRESPOND TO HER PRESENT RANK LEVEL
INASMUCH AS THE POSITION OF BUREAU
REGIONAL DIRECTOR CARRIES A CES RANK LEVEL
V ONLY. CONTRARY TO THE CONCLUSIONS OF
THE COURT OF APPEALS, SAID POSITION OF
REGIONAL DIRECTOR, PUBLIC ATTORNEY’S
OFFICE, THE POSITION TO WHICH RESPONDENT
BACAL WAS REASSIGNED OR TRANSFERRED,
CARRIES A CES RANK LEVEL III WHICH
CORRESPONDS TO HER CES RANK III LEVEL. AS
AN OFFICER WITH A RANK III LEVEL, RESPONDENT
BACAL IS NOT THEREFORE ELIGIBLE FOR THE
POSITION OF CHIEF PUBLIC ATTORNEY WHICH
CARRIES A CES RANK LEVEL I.
III. UPON HER REASSIGNMENT OR TRANSFER TO
THE POSITION OF REGIONAL DIRECTOR,
RESPONDENT BACAL DID NOT LOSE HER CES
RANK III AND HER RIGHT TO RECEIVE THE SALARY
CORRES-PONDING TO HER PRESENT RANK.
IV. RESPONDENT BACAL FAILED TO SHOW THAT
SHE HAS A CLEAR RIGHT TO THE POSITION OF
CHIEF PUBLIC ATTORNEY.
V. RESPONDENT BACAL FAILED TO FULLY
EXHAUST THE ADMINISTRATIVE REMEDIES
AVAILABLE TO HER BEFORE FILING THE PETITION
FOR QUO WARRANTO WITH THE COURT OF
APPEALS.
I. Exhaustion of Administrative Remedies
We first consider petitioners’ contention that
respondent’s quo warranto suit should have been
dismissed for failure of respondent to exhaust
administrative remedies by appealing to the
Office of the President.
The contention has no merit. If, as has been held,
no appeal need be taken to the Office of the
President from the decision of a department head
because the latter is in theory the alter ego of the
former, there is greater reason for not requiring
prior resort to the Office of the President in this
case since the administrative decision sought to
be reviewed is that of the President himself.
Indeed, we have granted review in other cases
involving the removal of the Administrator of the
Philippine Overseas Employment Administration
and the Executive Director of the Land
Transportation Office without requiring the
petitioners to exhaust administrative remedies
considering that the administrative actions in
question were those of the President.
In any event, the doctrine of exhaustion of
administrative remedies does not apply when the
question raised is purely legal. In this case, the
question is whether respondent’s transfer to the
position of Regional Director of the Public
Attorney’s Office, which was made without her
consent, amounts to a removal without cause.
This brings us to the main issue in this appeal.
II. Merits of the Case
In holding that respondent’s transfer amounted to
a removal without cause, the Court of Appeals
said:
. . . Her appointment as Regional Director was in
effect a removal in the guise of transfer, to
repeat, without her consent. Having been validly
appointed Chief Public Defender by the President
on February 8, 1998, would naturally entitle her to
security of tenure since on the basis of the
appointment, she was appointed, not merely
assigned, to a particular station. Her involuntary
transfer, through appointment, to that of a mere
Regional Director, did not either conform to the
rules on the constitutional protection of security
of tenure. Above all, her supposed appointment
as a Regional Director is not only temporary but is
on the other hand permanent wherein she lost her
position as Chief Public Attorney, or her
connection with the previous position being
severed.
. . . .
In the case of the petitioner, there is certainly a
diminution in duties and responsibilities when she
was downgraded through the July 6, 1998
appointment, involuntarily made, from that of
Chief Public Attorney to a mere Regional Director.
To repeat, the rank equivalent to a Bureau
Director is Rank III while that of a mere Bureau
Regional Director is Rank V. Diminution in duties
and responsibilities, certainly becomes apparent
and then in the matter of salary, the basic salary
of a Chief Public Attorney together with all the
perks, would amount to P575,199.00. In the case
of a Regional Director, his basic salary together
with all the perks, would only amount to
P341,479.96. Admittedly, when a CESO is
assigned or made to occupy a position with a
lower salary grade, he shall supposedly continue
to be paid his salary that attaches to his CES
rank. It cannot, on the other hand, be denied that
the moment a non-CESO is appointed to a CES
position, he shall receive, at the same time, the
salary of his CES position. There is merit in the
petitioner’s argument that allowing the Regional
Director to receive continuously the salary rate of
Chief Public Attorney in effect would amount to an
illegal consequence since the disbursement of
public funds, as budgeted, provides funding for
only one Chief Public Attorney. The dilemma
arises when both the petitioner and respondent
Demaisip would be claiming the salary of a Chief
Public Attorney. There is no pretension either in
the Brief of the public respondents that there has
been a supplemental budget for the petitioner,
now downgraded to a mere Regional Director, to
be receiving continuously the salary scale of a
Chief Public Attorney.
. . . .
Changing a CESO, Rank III, with a non-CESO
eligible nor a CESO defies the recruitment,
selection and appointment process of the Career
Executive Service. As a matter of fact, as a rule
(1997 Revised Edition, Handbook, Career
Executive Service), the appointment to most
positions in the CES is supposed to be made by
the President only from the list of CES eligibles,
but recommended by the CES Board. Admittedly,
an incumbent of a CES position may qualify for
appointment to a CES rank, only upon the
confirming of a CES Eligibility and compliance with
the other requirements being prescribed by the
Board (Ibid. p. 5). Precisely, the CES was created
pursuant to PD No. 1 (adopting the Integrated
Reorganizational Plan, dated September 24,
1972), if only to form a continuing pool of well-
selected and development-oriented career
administrators who shall provide competent and
faithful service (Ibid. p. 2). We cannot see this
from that of the petitioner then being replaced by
a non-CESO.
The appealed decision will not bear analysis.
First. What should be emphasized in this case is
that respondent Josefina G. Bacal is a CESO III and
that the position of Regional Director of the PAO,
to which she was transferred, corresponds to her
CES Rank Level III and Salary Grade 28. This was
her position before her “appointment” on
February 5, 1998 to the position of Chief Public
Attorney of the PAO, which requires a CES Rank
Level I for appointment thereto. Respondent
Bacal therefore has no ground to complain. She
may have been considered for promotion to Rank
I to make her appointment as Chief Public
Attorney permanent. The fact, however, is that
this did not materialize as petitioner Carina J.
Demaisip was appointed in her place. If
respondent was paid a salary equivalent to Salary
Grade 30 while she was holding that office, it was
only because, under the law, if a CESO is assigned
to a position with a higher salary grade than that
corresponding to his/her rank, he/she will be
allowed the salary of the CES position.
As respondent does not have the rank appropriate
for the position of Chief Public Attorney, her
appointment to that position cannot be
considered permanent, and she can claim no
security of tenure in respect of that position. As
held in Achacoso v. Macaraig:
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 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. The appointment extended
to him cannot be regarded as permanent even if it
may be so designated. . . .
It is contended, however, that respondent is
qualified for the position of Chief Public Attorney
because this position has a CES Rank Level III,
while that of Regional Director, Public Attorney’s
Office, has a CES Rank Level V. This is not so.
The position of Chief Public Attorney has a CES
Rank Level I and a Salary Grade 30, while that of
Regional Director of the PAO has a CES Rank
Level III and a Salary Grade 28. This is shown by
the following:
1. Certification, dated April 6, 1999,
issued by the Secretary of the Department of
Budget and Management (DBM), which states that
“the position of the head of Public Attorney’s
Office (PAO) is classified as Chief Public Attorney
at Salary Grade 30” (Annex A of Annex M,
Petition).
2. Certification, dated April 15, 1999, issued by
Elmor D. Juridico, then Executive Director of the
CES Board, which states that “the Rank
equivalent to the position of Chief Public Attorney
and Regional Public Attorney are CESO Rank I and
CESO Rank III respectively” (Annex B of Annex M,
Petition); and
3. Certification, dated July 8, 1998, previously
issued to respondent Bacal by then Executive
Director Juridico of the CES Board, stating that the
position of Chief Public Attorney has a CES rank
equivalent of Rank I. (vide Annex C of Annex M,
Petition). The certification reads:
This is to certify that Atty. JOSEFINA G. BACAL,
Chief Public Attorney, Public Attorney’s Office was
conferred CES Eligibility on July 28, 1994 per
Board Resolution No. 94-4620 and was appointed
Career Executive Service Officer (CESO) Rank III
by then President Fidel V. Ramos on January 5,
1995. She is yet to fulfill the requirements for an
adjustment of her CES rank (from CES Rank III to
Rank I) to a level equivalent to her present
position.
This certification is issued upon the request of
Atty. Bacal for whatever purpose it may serve
best.
Second. The Court of Appeals held that
respondent Bacal had acquired security of tenure
as Chief Public Attorney by the mere fact of her
appointment to that position. This is likewise the
point of the dissent of Justice Gonzaga-Reyes who
contends that a CES eligibility is all that a person
needs in order to acquire security of tenure in any
position embraced in the Career Executive
service; that a CESO rank is only necessary to
differentiate a CESO’s general managerial
duties/responsibilities, personal qualifications, and
demonstrated competence; and that no other CES
examination is required for appointment to a
higher rank.
Appointments, assignments, reassignments, and
transfers in the Career Executive Service are
based on rank. On this point, the Integrated
Reorganization Plan cannot be any clearer. It
provides:
c. Appointment. Appointment to appropriate
classes in the Career Executive 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
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.
At the initial implementation of this Plan, an
incumbent who holds a permanent appointment
to a position embraced in the Career Executive
Service shall continue to hold his position, but
may not advance to a higher class of position in
the Career Executive Service unless or until he
qualifies for membership in the Career Executive
Service.
....
e. Assignments, Reassignments and Transfers.
Depending upon their ranks, members of the
Service shall be assigned to occupy positions of
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 Board
on the basis of the members’ functional expertise.
...
The rules and regulations promulgated by the CES
Board to implement the Integrated Reorganization
Plan are equally clear in providing that ¾
Career Executive Service Eligibility
Passing the CES examination entitles the
examinee to a conferment of a CES eligibility and
the inclusion of his name in the roster of CES
eligibles. Conferment of CES eligibility is done by
the Board through a formal Board Resolution after
an evaluation of the examinee’s performance in
the four stages of the CES eligibility examinations.
....
Appointment to CES Rank
Upon conferment of a CES eligibility and
compliance with the other requirements
prescribed by the Board, an incumbent of a CES
position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the
President upon the recommendation of the
Board. This process completes the official’s
membership in the CES and most importantly,
confers on him security of tenure in the CES.
There are six (6) ranks in the CES ranking
structure. The highest rank is that of a Career
Executive Service Officer I (CESO I), while the
lowest is that of CESO VI.
The appropriate CESO rank to which a CES eligible
may be appointed depends on two major
qualification criteria, namely: (1) level of
managerial responsibility; and, (2) performance.
Performance is determined by the official’s
performance rating obtained in the annual
CESPES. On the other hand, managerial
responsibility is based on the level of the general
duties and responsibilities which an eligible is
performing, as follows:
Levels of Duties
and Rank
Equivalent
Responsibilities
if level of managerial
responsibilities I
are comparable to that of an Under-
secretary
if comparable to that of an
Assistant II
Secretary
if comparable to that of a Bureau
III
Director or a Department Regional
Director
if comparable to that of an
Assistant IV
Bureau Director, Department
Assistant Regional Director or
Department Service Chief
if comparable to that of a Bureau
V
Regional Director
if comparable to that of a Bureau
VI
Assistant Regional Director
As a general rule, a CES eligible will be
recommended for appointment to the rank
equivalent of the level of his managerial
responsibility if his performance rating is
Satisfactory or higher. If the performance rating
is Outstanding, he will be recommended one rank
higher than his level of managerial responsibility.
Security of tenure in the career executive service
is thus acquired with respect to rank and not to
position. The guarantee of security of tenure to
members of the CES does not extend to the
particular positions to which they may be
appointed ¾ a concept which is applicable only to
first and second-level employees in the civil
service ¾ but to the rank to which they are
appointed by the President. Accordingly,
respondent did not acquire security of tenure by
the mere fact that she was appointed to the
higher position of Chief Public Attorney since she
was not subsequently appointed to the rank of
CESO I based on her performance in that position
as required by the rules of the CES Board.
Indeed, to contend, as does the dissent of Justice
Gonzaga-Reyes, that a CES eligibility was all that
was required to make her appointment to the
position of Chief Public Attorney permanent would
give rise to an anomalous situation. Following
such theory, even if respondent is not appointed
CESO I because her performance as Chief Public
Attorney does not warrant her appointment to
such higher rank, she cannot be transferred to
any other office to which her rank (CESO III)
qualifies her. This theory of the dissent, i.e., that
a CES eligibility gives the appointee security of
tenure - not the ruling in this case that it is
appointment to the appropriate rank that confers
security of tenure - is what will undermine the
Career Executive Service.
Third. Within the Career Executive Service,
personnel can be shifted from one office or
position to another without violation of their right
to security of tenure because their status and
salaries are based on their ranks and not on their
jobs. To understand this, it is necessary to
consider the reason for the creation of the Career
Executive Service.
R.A. No. 5435, as amended by R.A. Nos. 6076,
6172, and 6175, created a commission charged
with the specific function of reorganizing the
government “to promote simplicity, economy, and
efficiency” in its operations. The result was the
preparation of the Integrated Reorganization Plan
which was adopted and declared part of the law of
the land by P.D. No. 1 on September 24, 1972. A
major feature of the Integrated Reorganization
Plan was the creation of the Career Executive
Service whose justification was explained by the
Commission on Reorganization, thus:
The present Civil Service system is not geared to
meet the executive manpower needs of the
government. The filling of higher administrative
positions is often based on considerations other
than merit and demonstrated competence. The
area of promotion is currently confined to the
person or persons “next-in-rank” in the agency.
Moreover, personnel classification and
compensation are uniformly based on concepts
and procedures which are suited to positions in
the lower levels but not to managerial posts in the
higher levels. To fill this crucial gap, it is
recommended that a Career Executive Service be
established. This group of senior administrators
shall be carefully selected on the basis of high
qualifications and competence. Skilled in both
techniques and processes of management, these
career executives will act as catalysts for
administrative efficiency and as agents of
administrative innovation.
The status and salary of the career executives will
be based on their rank, and not on the job that
they occupy at any given time . . . . In this sense,
the rank status of the Career Executive Service is
similar to that of the commissioned officers in the
Armed Forces or members of the Foreign Service.
Unlike these latter organizations, however,
entrance to the Career Executive Service will not
be generally at an early age in a relatively junior
level but at a senior management level.
. . . .
The rank classification in the Service will allow for
mobility or flexibility of assignments such that the
government could utilize the services or special
talents of these career executives wherever they
are most needed or will likely create the greatest
impact. This feature is especially relevant in a
developing country which cannot afford to have
its scarce executive manpower pegged to
particular positions.
Mobility and flexibility in the assignment of
personnel, the better to cope with the exigencies
of public service, is thus the distinguishing feature
of the Career Executive Service. To attain this
objective, the Integrated Reorganization Plan
provides:
e. Assignments, Reassignments and
Transferees. . . .
Any provision of law to the contrary
notwithstanding, members of the Career
Executive Service may be reassigned or
transferred from one position to another and from
one department, bureau or office to another;
provided that such reassignment or transfer is
made in the interest of public service and involves
no reduction in rank or salary; provided, further,
that no member shall be reassigned or transferred
oftener than every two years; and provided,
furthermore, that if the officer concerned believes
that his reassignment or transfer is not justified,
he may appeal his case to the President.
The implementing rules and regulations of the
CES Board provide:
Salary of Career Executive Service Officers. A
CESO is compensated according to his CES rank
and not on the basis of the CES position he
occupies. However, if a CESO is assigned to a
CES position with a higher salary grade than that
of his CES rank, he is allowed to receive the salary
of the CES position.
Should he be assigned or made to occupy a CES
position with a lower salary grade, he shall
continue to be paid the salary attached to his CES
rank.
Petitioners are, therefore, right in arguing that
respondent, “as a CESO, can be reassigned from
one CES position to another and from one
department, bureau or office to another. Further,
respondent, as a CESO, can even be assigned or
made to occupy a CES position with a lower salary
grade. In the instant case, respondent, who holds
a CES Rank III, was correctly and properly
appointed by the appointing authority to the
position of Regional Director, a position which has
a corresponding CES Rank Level III.”
Indeed, even in the other branches of the civil
service, the rule is that, unless an employee is
appointed to a particular office or station, he can
claim no security of tenure in respect of any
office. This rule has been applied to such
appointments as Director III or Director IV or
Attorney IV or V in the Civil Service Commission
since the appointments are not to specified
offices but to particular ranks; Election Registrars;
Election Officers, also in the Commission on
Elections; and Revenue District Officers in the
Bureau of Internal Revenue. Reiterating the
principle in Sta. Maria v. Lopez, this Court said:
. . . [T]he rule that outlaws unconsented transfers
as anathema to security of tenure applies only to
an officer who is appointed - not merely assigned
- to a particular station. Such a rule does not
proscribe a transfer carried out under a specific
statute that empowers the head of an agency to
periodically reassign the employees and officers
in order to improve the service of the agency.
The use of approved techniques or methods in
personnel management to harness the abilities of
employees to promote optimum public service
cannot be objected to. . . .
For the foregoing reasons, we hold that
respondent’s appointment to the position of Chief
Public Attorney was merely temporary and that,
consequently, her subsequent transfer to the
position of Regional Director of the same office,
which corresponds to her CESO rank, cannot be
considered a demotion, much less a violation of
the security of tenure guarantee of the
Constitution.
Fourth. On the other hand, Justice Puno makes
much of the fact that petitioner Carina J. Demaisip
is not a CES eligible. Suffice it to say the law
allows in exceptional cases the appointment of
non-CES eligibles provided that the appointees
subsequently pass the CES Examinations. Thus
Part III, Chap. I, Art. IV, par. 5(c) of the Integrated
Reorganization Plan provides that the President
may, 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 qualified in such
examination.
For the same reason that the temporary
appointment of respondent Josefina G. Bacal as
Chief Public Attorney is valid under this provision
of the law despite the fact that she does not hold
the rank of CESO I, so is the appointment to the
same position of petitioner Carina J. Demaisip.
The question in this case is not the validity of the
appointment to such position but whether the
appointee acquires security of tenure even if he
does not possess the requisite rank. There is no
claim that petitioner Demaisip has a right to
remain in the position of Chief Public Attorney
permanently.
On the other hand, as respondent herself does not
have the requisite qualification for the position of
Chief Public Attorney, she cannot raise the lack of
qualification of petitioner. As held in Carillo v.
Court of Appeals, “in a quo warranto proceeding
the person suing must show that he has a clear
right to the office allegedly held unlawfully by
another. Absent that right, the lack of
qualification or eligibility of the supposed usurper
is immaterial.” Indeed, this has been the
“exacting rule” since it was first announced, 95
years ago, in Acosta v. Flor. As at present
embodied in Rule 66, §5 of the Rules of Civil
Procedure, the rule is that “a person claiming to
be entitled to a public office or position usurped or
unlawfully held or exercised by another may bring
an action therefor in his own name.”
WHEREFORE, the decision of the Court of
Appeals is REVERSED and the petition for quo
warranto filed by respondent is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Pardo,
Buena, Ynares-Santiago and De Leon, Jr., JJ.,
concur.
Puno J., see separate opinion.
Vitug J., join Justice Puno in his separate opinion.
Panganiban and Quisumbing, JJ., join the dissent
of J. Reyes.
Gonzaga-Reyes J., see dissenting opinion.
Per Justice Bernardo Ll. Salas and concurred in by
Justices Quirino D. Abad Santos, Jr. and Candido V.
Rivera.
It is unnecessary to determine whether the Public
Attorney’s Office has been renamed “Public
Defender’s Office” by reason of such appellation
in R.A. No. 8194 (General Appropriations Act of
1996). It is sufficient to point out that petitioner
Secretary of Justice himself, in an opinion dated
October 5, 1998, stated that “the correct and
official name of [the] office and its senior officers
are still those stated in the Administrative Code of
1987,” because the General Appropriations Act
cannot amend the Administrative Code.
Petition, pp. 7-8; Rollo, pp. 15-16.
E.g., Kilusang Bayan sa Paglilingkod ng mga
Magtitinda ng Bagong Pamilihang Bayan ng
Muntinglupa, Inc. v. Dominguez, 205 SCRA 92
(1992).
Achacoso v. Macaraig, 195 SCRA 235 (1991).
Pangilinan v. Maglaya, 225 SCRA 512 (1993).
NDC v. Collector, 9 SCRA 429 (1963); Mangubat v.
Osmeña, 105 Phil. 1308 (1959).
CA Decision, pp. 14-16, 20-21; Rollo, pp. 53-55,
59-60 (emphasis by the Court of Appeals).
195 SCRA 235, 239-240 (1991).
Memorandum for Petitioners, dated Sept. 18,
2000, pp. 9-10.
Part. III, Chap. I, Art. IV, par. 5(c) (emphasis
added).
CES Handbook, pp. 5-6 (emphasis added).
An act authorizing the President of the Philippines
with the help of a Commission on Reorganization,
to reorganize the different executive
departments, bureaus, offices, agencies, and
instrumentalities of the government including
banking or financial institutions and corporations
owned or controlled by its subject to certain
conditions and limitations.
Part. III, Chap. I, Art. IV, par. 5(e).
CES Handbook, p. 8.
Petition, pp. 11-12; Rollo, pp. 19-20.
Fernandez v. Sto. Tomas, 242 SCRA 192 (1995).
Ibañez v. Commission on Elections, 19 SCRA 1002
(1967).
De Guzman, Jr. v. Commission on Elections, G.R.
No. 129118, July 19, 2000.
244 SCRA 787 (1995).
31 SCRA 637, 653 (1970).
Carillo v. Court of Appeals, 77 SCRA 170 (1977).
Accord, Santiago v. Guingona, 298 SCRA 756
(1998).
Id. at 177. Accord, Santiago v. Guingona, 298
SCRA 756 (1998).
Garcia v. Perez, 99 SCRA 628, 634 (1980).
5 Phil. 18 (1905).
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 141141 June 25, 2001
PHILIPPINE AMUSEMENT AND GAMING
CORPORATION (PAGCOR), petitioner,
vs.
CARLOS P. RILLORAZA, respondent.
DE LEON, JR., J.:
Before us is a petition for review on certiorari
praying for the reversal of the Decision dated
August 31, 19991 as well as the Resolution dated
November 29, 1999, rendered by the Court of
Appeals in CA-G.R. SP No. 51803.
The facts are undisputed:
On November 5, 1997, administrative charges for
dishonesty, grave misconduct, conduct prejudicial
to the best interest of the service, and loss of
confidence, were brought against respondent
Carlos P. Rilloraza, a casino operations manager
of petitioner PHILIPPINE AMUSEMENT AND
GAMING CORPORATION (PAGCOR). Respondent
allegedly committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations of
casino and regulations committed by co-officers
during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.–2:00 p.m. on
October 9, 1997, four (4) personal checks with a
total value of Pesos: Five Million (P5,000,000)
were issued by a small-time financier/player and
were facilitated by a COM with the Treasury
Division which enabled the small-time
financier/player to withdraw and receive said
amount. The facilitation of the checks was not
authorized by the Senior Branch Manager (SBM)
or the Branch Manager for Operations (BMO) and
the COM who facilitated the checks was not on
duty then.
2. He even facilitated one (1) of the personal
checks with a value of Pesos: Five Hundred
Thousand (P500,000.00).
3. He failed to stop a top-ranking officer from
placing bets over and above the allowable limit of
P5,000.00 per deal, he failed to stop the same
officer from playing in the big tables and lastly, he
allowed the same officer to play beyond the
allowable time limit of 6:00 a.m.
Respondent duly filed his answer during an
investigation conducted by petitioner’s Corporate
Investigation Unit. He narrated the events that
transpired:
"When I reported for my 6:00 a.m. to 2:00 p.m.
shift, on October 9, that morning I saw BM
RICHARD SYHONGPAN beside TABLE #22 (BB)
sitting at a coffee table inside Area 3. While inside
the Area 3, GAM RENE QUITO approached me with
a check worth P500,000.00 requested by a
customer for endorsement to the Treasury. Since
I’ve been out of Manila branch for 2 years and I’ve
just been recalled to this branch for only more
than 3 weeks, I’m not quite familiar with the
systems and I don’t know this customer. I
immediately approached COM CARLOS
GONZALES, who at that time was still around, to
verify regarding the said check and his immediate
reply was "IT’S OKAY AND GOOD AND IT WAS
GUARANTEED BY BM SYHONGPAN’. In fact, I
reconfirmed it again with COM GONZALES since
he is more familiar with the systems and
customers, he answered me the same. So I gave
the approval to GAM QUITO for endorsement.
When I went in the office, I instructed OOS
GILBERT CABANA to beep SBM VIC ADVINCULA
and BMO DARIO CORDERO to call office "ASAP"
because I wanted to relay this matter to them and
there were no reply from both of them. I
instructed OOS CABANA to send messages again
to SBM & BMO, but still I received no reply. It was
until after noontime that BMO CORDERO returned
my call and I reported the incident to him. When I
was at home at around 3:30 p.m. SBM ADVINCULA
returned my call and I reported the incident. I also
relayed the incident to SBM REYES.
While during my rounds, I went down to the New
VIP area and there I saw BM SYHONGPAN sitting
at TABLE #3(BB) and he was holding house cards
at that time. I approached and stopped him but
he reacted that the bet was not his but to a
CUSTOMER’S. I took his words because as a
subordinate, I respected him as one of our
superior who very well know all our company’s
policy esp. that an officer is not allowed to play at
BIG table and are only allowed to bet with a
maximum of P5,000.00 only. So I believe it was
not his bet but the said customer. At that time
there was no way for me to stop the game
because I saw the said customer, named MS.
CORAZON CASTILLO, whom I don’t know her [sic]
since I was out of Manila Branch 2 years, and
whom BM SYHONGPAN was referring to as the
player, has a lot of chips worth about P7 Million in
front of her and was betting P1.5M on the banker
side which was over the maximum table limit by
P500,000.00. I know we are allowed to authorize
approval by raising the betting limits as per
request of the playing customers.
After the game, the chips were encashed and I
instructed GAM J. EUGENIO to accompany BM
SYHONGPAN to his room because he was too
drunk. When I was doing my rounds again, that’s
how I found out from rumors within the gaming
areas that this MS. CASTILLO was used by BM
SYHONGPAN and COM GONZALES to played [sic]
in behalf of them the whole time. And I also
learned that there were four checks endorsed
during my shift which I facilitated only one check
worth P500,000.00 after I verified and confirmed
it with COM GONZALES. With regards to the other
3 checks, I have no knowledge about it since they,
BM SYHONGPAN and COM GONZALES, kept it a
secret from me. When GAM EUGENIO returned
from the room of BM SYHONGPAN he handed me
some cash, which according to him, was given by
BM SYHONGPAN as ‘BALATO’. I did not accept the
money because at that moment I was so mad that
they involved me beyond my innocence since I
am new in the branch. I then instructed GAM
EUGENIO to return the money to BM SYHONGPAN.
(sic)
Finding Rilloraza’s explanation unsatisfactory, the
PAGCOR Board handed down a Resolution on
December 2, 1997 dismissing respondent and
several others from PAGCOR, on the grounds of
dishonesty, grave misconduct and/or conduct
prejudicial to the best interest of the service and
loss of confidence, effective December 5, 1997.
The Board also denied respondent’s motion for
reconsideration in a Resolution dated December
16, 1997.
Respondent appealed to the Civil Service
Commission. On November 20, 1998, the
Commission issued Resolution No. 983033,2 the
dispositive portion of which provides, to wit:
WHEREFORE, the appeal of Carlos P. Rilloraza is
hereby dismissed. However, the Commission finds
appellant guilty only of Simple Neglect of Duty
and metes out upon him the penalty of one month
and one day suspension. The assailed Resolution
of PAGCOR Board of Directors is thus modified.
The Commission denied petitioner’s motion for
reconsideration in Resolution No. 990465 dated
February 16, 1999.3
On appeal, the Court of Appeals affirmed the
resolution of the Commission.4 The appellate court
ordered petitioner to reinstate private respondent
with payment of full backwages plus all tips,
bonuses and other benefits accruing to his
position and those received by other casino
operations managers for the period starting
January 5, 1998 until his actual reinstatement.
Petitioner filed a motion for reconsideration,5
which was denied by the appellate court in the
assailed resolution of November 29, 1999.6
Hence, the instant petition.
PAGCOR avers that:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN
IT FAILED AND REFUSED TO CONSIDER THAT
RESPONDENT WAS A CONFIDENTIAL APPOINTEE
OR EMPLOYEE WHOSE TERM HAD EXPIRED BY
REASON OF LOSS OF CONFIDENCE.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN
IT AFFIRMED THE CSC RESOLUTIONS MODIFYING
THE PENALTY METED OUT ON RESPONDENT FROM
DISMISSAL TO SUSPENSION, DESPITE THE
GRAVITY OR SERIOUSNESS OF THE OFFENSES
COMMITTED BY THE LATTER ON ACCOUNT OF THE
EXTRAORDINARY RESPONSIBILITIES AND DUTIES
REPOSED IN THE RESPONDENT BY VIRTUE OF HIS
POSITION.
The wellspring of stability in government service
is the constitutional guarantee of entrance
according to merit and fitness and security of
tenure, viz:
xxx xxx xxx
(2) 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.
(3) No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law.7
xxx xxx xxx
In the case at bar, we are basically asked to
determine if there is sufficient cause to warrant
the dismissal, not merely the suspension, of
respondent who, petitioner maintains, occupies a
primarily confidential position. In this connection,
Section 16 of Presidential Decree No. 18698
provides:
Exemption.—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" appointee.
Petitioner argues that pursuant to the
aforequoted provision, respondent is a primarily
confidential employee. Hence, he holds office at
the pleasure of the appointing power and may be
removed upon the cessation of confidence in him
by the latter. Such would not amount to a removal
but only the expiration of his term. However,
there should be no lingering doubt as to the true
import of said Section 16 of P.D. No. 1869. We
have already definitively settled the same issue in
Civil Service Commission v. Salas,9 to wit:
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.
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. 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.
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 Piñero, et al. vs.
Hechanova, et al., 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 x x x 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 Tañada, 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 policy-determining 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, x x x who is going
to determine whether it is primarily confidential?’
Senator Tañada replied:
‘SENATOR TAÑADA: 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." xxx
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
explicitly 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. 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. [italics
supplied]
The doctrinal ruling enunciated in Piñero 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.
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 be here
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.1âwphi1.nêt
The question that may now be asked is whether
the Piñero 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, Book 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.
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 policy-determining 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 policy-determining, 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 policy-determining
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."
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. [italics
supplied]
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." Accordingly, the Piñero 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.
Justice Regalado’s incisive discourse yields three
(3) important points: first, the classification of a
particular position as primarily confidential,
policy-determining or highly technical amounts to
no more than an executive or legislative
declaration that is not conclusive upon the courts,
the true test being the nature of the position.
Second, whether primarily confidential, policy-
determining or highly technical, the exemption
provided in the Charter pertains to exemption
from competitive examination to determine merit
and fitness to enter the civil service. Such
employees are still protected by the mantle of
security of tenure. Last, and more to the point,
Section 16 of P.D. 1869, insofar as it declares all
positions within PAGCOR as primarily confidential,
is not absolutely binding on the courts.
Considerations vary so as to make a position
primarily confidential. Private secretaries are
indisputably primarily confidential employees.10
Those tasked to provide personal security to
certain public officials have also been deemed to
hold primarily confidential positions11 for obvious
reasons: the former literally are responsible for
the life and well-being of the latter. Similar
treatment was accorded to those occupying the
posts of city legal officer12 and provincial
attorney,13 inasmuch as the highly privileged
nature of the lawyer-client relationship mandates
that complete trust and confidence must exist
betwixt them. National interest has also been
adjudged a factor, such that the country’s
permanent representative to the United Nations
was deemed to hold her post at the pleasure of
the Chief Executive.14
As casino operations manager, Rilloraza’s duties
and responsibilities are:
JOB SUMMARY: The Casino Operations Manager
directs, controls and supervises the Operations
Division of the branch. He reports directly to the
Branch Manager or to the Branch Manager for
Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs and plans of
action for branch gaming operations in order to
optimize revenue.
2. Institutes and maintains a healthy, organized,
mentally alert, and highly motivated human
resource for effective and efficient branch gaming
operations performance.
3. Takes measures to maintain and uphold the
integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table
and slot machine operations reports, including
income performance.
5. Submits periodic reports to the Branch
Manager.
6. Directs the opening and closing of gaming table
and slot machine areas.
7. Directs the setting-up, closure or suspension of
operations of gaming tables and slot machine
units when deemed necessary.
8. Controls the requisition, storage, and issuance
of playing cards, gaming equipment and
paraphernalia, operations keys, and accountable
receipts and slips.
9. Ensures that gaming operations personnel
adhere to the established House Rules, company
policies and procedures.
10. Ensures that quality and efficient service is
extended to casino patrons in accordance with
the established House Rules, company policies
and procedures.
11. Directs and controls all activities of the Card
Shuffling Center and the Card Distribution Room.
12. Issues directives, memoranda, and other
official communications on branch gaming
operations matters.
13. Directs the daily and periodic performance
evaluation of operations personnel.
14. Requires written statements from operations
personnel regarding disputes, reported
irregularities and violations of House Rules,
company policies and procedures.
15. Issues or recommends disciplinary sanctions
against delinquent operations personnel, as well
as commendations to deserving ones.
16. Upon the Branch Manager’s approval, issues
preventive suspension to erring employees
pending investigation.
17. Effects immediate changes in House Rules
when deemed necessary, subject to management
review.
18. Approves table refill, chip yield, and dropbox
yield transactions, as well as the payment for
progressive link super jackpot awards.
19. Directs the cancellation of progressive link
super jackpot combinations.
20. Signs chip checks in behalf of the Branch
Manager.
21. Approves complimentary food and beverages
to deserving players and evaluates the same for
the possible extension of other amenities.
22. Settles disputes arising from gaming
operations that have not been effectively settled
by gaming managers and supervisors, and
enforces decisions on the interpretation of House
Rules, company policies, and procedures.
23. Recommends to the Branch Manager the
banning of undesirable players.
24. Orders the removal of customers or
employees from the table gaming (sic) and slot
machine area for justifiable reasons.
25. Implements contingency plans in case of
emergencies to ensure the security and safety of
customers and staff.
26. Acts on customer complaints, suggestions,
and observations.
27. Chairs the Branch Infractions Committee, the
Variance Committee, and other ad hoc
committees of the Operations Division.
28. Represents the Operations Division in Branch
Management panel meetings.
29. Apprises the Branch Manager of any incident
of doubtful nature and of developments that
require his immediate attention.
30. Performs other duties as may be designated
by the Branch Manager.
Undoubtedly, respondent’s duties and
responsibilities call for a great measure of both
ability and dependability. They can hardly be
characterized as routinary, for he is required to
exercise supervisory, recommendatory and
disciplinary powers with a wide latitude of
authority. His duties differ markedly from those
we previously ruled as not primarily confidential:
for instance, PAGCOR’s Internal Security Staff;15
Management and Audit Analyst I of the Economic
Intelligence and Investigation Bureau;16 a Special
Assistant to the Governor of the Central Bank;17
the Legal Staff of the Provincial Attorney;18
members of the Customs Police;19 the Senior
Executive Assistant, Clerk I, Supervising Clerk I
and Stenographer;20 and a Provincial
Administrator.21 In this sense, he is a tier above
the ordinary rank-and-file in that his appointment
to the position entails faith and confidence in his
competence to perform his assigned tasks.
Lacking, therefore, is that amplitude of confidence
reposed in him by the appointing power so as to
qualify his position as primarily confidential.
Verily, we have observed that:
[i]ndeed, physicians handle confidential matters.
Judges, fiscals and court stenographers generally
handle matters of similar nature. The Presiding
and Associate Justices of the Court of Appeals
sometimes investigate, by designation of the
Supreme Court, administrative complaints against
judges of first instance, which are confidential in
nature. Officers of the Department of Justice,
likewise, investigate charges against municipal
judges. Assistant Solicitors in the Office of the
Solicitor General often investigate malpractice
charges against members of the Bar. All of these
are "confidential" matters, but such fact does not
warrant the conclusion that the office or position
of all government physicians and all Judges, as
well as the aforementioned assistant solicitors
and officers of the Department of Justice are
primarily confidential in character.22
We further note that a casino operations manager
reports directly to the Branch Manager or, in
Metro Manila branches, to the Branch Manager for
Operations. It does not appear from the record to
whom the Branch Manager (or the Branch
Manager for Operations, as the case may be)
reports. It becomes unmistakable, though, that
the stratum separating the casino operations
manager from reporting directly to the higher
echelons renders remote the proposition of
proximity between respondent and the appointing
power. There is no showing of that element of
trust indicative of a primarily confidential position,
as we defined it in De los Santos v. Mallare,23 to
wit:
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.
Necessarily, the point of contention now is
whether there was cause for the respondent’s
separation from the service. On this point, having
analyzed both parties’ arguments, we find that
the Civil Service Commission did not err in
declaring that Rilloraza was liable only for simple
neglect of duty. In the first place, there is no
evidence to sustain a charge of dishonesty. As the
latter term is understood, it implies a:
Disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity. Lack of
honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition to
defraud, deceive or betray.24
In the case at bar, respondent’s explanation fails
to evince an inclination to lie or deceive, or that
he is entirely lacking the trait of
straightforwardness. We concur with the appellate
court’s finding, thus:
Available proof unmistakably demonstrate that
upon seeing BM Syhongpan playing at Table No.
3BB, respondent Rilloraza at once, told him to
stop. However, Syhongpan explained that he was
merely playing for a customer, Ms. Corazon
Castillo who was seated also at the table. After
observing the large number of chips in front of
Ms. Castillo estimated at around P7M, respondent
became convinced of the clarification given by
Branch Manager Syhongpan and he must have
relied also on the word of said top ranking
PAGCOR official whose representation must
ordinarily be accepted and accorded respect and
credence by a subordinate like him. xxx
More importantly, the PAGCOR Adjudication
Committee concluded that respondent actually
attempted to stop the game where Syhongpan
was playing which was even utilized as basis by
the PAGCOR Board in dismissing respondent. xxx
xxx xxx xxx xxx
The allegation that respondent Rilloraza allowed
Syhongpan to place bets over and above the
allowable limit of P5,000.00 per deal is not
anchored on a correct premise. Respondent
Rilloraza has steadfastly maintained that he is of
the belief that BM Syhongpan is not playing for
himself but for Ms. Castillo. Thus, if Syhongpan is
merely acting for the real casino player, then the
policy of not allowing any PAGCOR official to bet
beyond P5,000.00 has no application. Respondent
Rilloraza believed in good faith that the bet was
not BM Syhongpan’s but of Ms. Castillo and should
not be unduly punished for his honest belief. The
same reason exists for the claim that respondent
allowed BM Syhongpan to play beyond 6:00 a.m.
This is non sequitur since Rilloraza never
entertained the idea that Syhongpan was the
gambler.
Lastly, if only to consummate respondent’s
alleged dishonesty and grave misconduct by
corruptly profiting from said incident, he could
have easily pocketed the ‘balato’ given by
Syhongpan, but he never did, and in fact,
returned the money. xxx
xxx xxx xxx xxx
On the facilitation of the swap of a P500,000.00
personal check for chips, this Court, after
considering the parties involved and the
circumstances of the case, believes that
respondent Rilloraza has judiciously performed all
the acts necessary to protect the interests of
PAGCOR and has acted as a prudent and
reasonable man. It is evident that respondent had
the authority to approve the exchange of checks
for gambling chips. In the exercise of such
discretion, We find that the approval by Rilloraza
of the exchange was done with caution and
circumspect [sic]. When he was approached by
GAM Quito for endorsement of said personal
checks per request of a customer, he immediately
approached COM Gonzales to verify the check
who assured him that the check was good and in
fact guaranteed by Mr. Syhongpan, Davao City
Branch Manager of PAGCOR. To be sure, he even
reconfirmed the same with Gonzales as he is
more familiar with the systems and the customers
since he has been recalled to the branch for only
three (3) weeks. After approving the
endorsement, he immediately tried to contact
SBM Advincula and BMO Cordero, to notify them
of his action but none of them called back. In the
afternoon, both returned the call and were
informed by respondent of the exchange of the
chips for the check and presumably, the former
ratified or acquiesced to the action of respondent
since there was no objection or complaint about
the matter. xxx
These same findings negate the conclusion that
respondent is guilty of misconduct or conduct
prejudicial to the best interest of the service. In
Manuel v. Calimag, Jr.,25 we defined misconduct,
thus:
Misconduct in office has been authoritatively
defined by Justice Tuazon in Lacson v. Lopez in
these words: "Misconduct in office has a definite
and well-understood legal meaning. By uniform
legal definition, it is a misconduct such as affects
his performance of his duties as an officer and not
such only as affects his character as a private
individual. In such cases, it has been said at all
times, it is necessary to separate the character of
the man from the character of the officer x x x. It
is settled that misconduct, misfeasance, or
malfeasance warranting removal from office of an
officer, must have direct relation to and be
connected with the performance of official duties
amounting either to maladministration or willful,
intentional neglect and failure to discharge the
duties of the office x x x.
Differently propounded in Canson v. Garchitorena,
et al.,26 misconduct is "any unlawful conduct on
the part of a person concerned in the
administration of justice prejudicial to the rights of
parties or to the right determination of the cause.
It generally means wrongful, improper or unlawful
conduct motivated by a premeditated, obstinate
or intentional purpose. The term, however, does
not necessarily imply corruption or criminal intent.
On the other hand, the term ‘gross’ connotes
something ‘out of all measure; beyond allowance;
not to be excused; flagrant; shameful’." From the
facts given, absent is that element of intent to do
wrong against petitioner.
CSC Resolution No. 991936 dated August 31,
1999 classifies simple neglect of duty as a less
grave offense punishable as a first offense by
suspension of one (1) month and one (1) day to
six (6) months.27 In the imposition of the proper
penalty, Section 54 thereof provides, as follows:
(a) the minimum of the penalty shall be imposed
where only mitigating and no aggravating
circumstances are present; (b) the medium of the
penalty shall be imposed where no mitigating and
aggravating circumstances are present; and (c)
the maximum of the penalty shall be imposed
where only aggravating and no mitigating
circumstances are present. In turn, the
circumstances that may be properly considered
are:
Section 53. Extenuating, Mitigating,
Aggravating, or Alternative Circumstances. –
In the determination of the penalties to be
imposed, mitigating, aggravating and alternative
circumstances attendant to the commission of the
offense shall be considered.1âwphi1.nêt
The following circumstances shall be appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official position
d. Taking undue advantage of subordinate
e. Undue disclosure of confidential information
f. Use of government property in the commission
of the offense
g. Habituality
h. Offense is committed during office hours and
within the premises of the office or building
i. Employment of fraudulent means to commit or
conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the
same must be invoked or pleaded by the proper
party, otherwise, said circumstances shall not be
considered in the imposition of the proper
penalty. The Commission, however, in the interest
of substantial justice may take and consider these
circumstances.
We find that the Civil Service Commission, as
affirmed by the Court of Appeals, correctly
attributed good faith on the part of respondent.
Accordingly, the modified penalty imposed by the
Civil Service Commission on the respondent which
was affirmed by the Court of Appeals, was proper
under the premises.
WHEREFORE, the petition is hereby DENIED for
lack of merit. The Decision dated August 31, 1999
as well as the Resolution dated November 29,
1999, rendered by the Court of Appeals in CA-G.R.
SP No. 51803 are hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, Buena, JJ.,
concur.
Footnote
1
Justice Presbitero J. Velasco, Jr., ponente; Justice CIVIL SERVICE COMMISSION and LEONARDA
Fermin A. Martin, Jr. and Justice Bennie A. Adefuin- D. DE LA PAZ, respondents.
de la Cruz, concurring.
2
Annex "C" of the Petition, Rollo, pp. 62-70. MEDIALDEA, J.:
3
Annex "D" of the Petition, Rollo, pp. 71-72. This petition for certiorari with prayer for the
4
Decision, Annex "A" of the Petition, Rollo, pp. 33- issuance of a restraining order seeks to nullify the
57. resolutions issued by the respondent Civil Service
5 Commission, namely: (1) Resolution No. 88-820
Annex "E" of the Petition, Rollo, pp. 73-80.
dated November 7, 1988 reversing the decision of
6
Annex "B" of the Petition, Rollo, pp. 59-60. the Merit Systems Protection Board dated
7
Constitution, Art. IX-B, Sec. 2. February 5, 1988 which sustained the decision of
8
the Secretary of Education, Culture and Sports
Entitled "Consolidating and Amending dated May 4, 1987 upholding the appointment of
Presidential Decree Nos. 1067-A, 1067-B, 1067-C, Mr. Victor A. Aquino as Supply Officer I in the
1399 and 1632, Relative to the Franchise and DECS, Division of San Pablo City; and (2)
Powers of the Philippine Amusement and Gaming Resolution No. 90-224 dated February 27, 1990
Corporation (PAGCOR), dated July 11, 1983." denying the motion for reconsideration with
9
274 SCRA 414, 420-427 (1997). prayer for issuance of temporary restraining order
10 for lack of merit.
Corpus v. Cuaderno, Sr., 13 SCRA 591, 596
(1965). The antecedent facts are as follows:
11
Borres v. Court of Appeals, 153 SCRA 120, 132 Petitioner Victor A. Aquino, then holding the
(1987). position of Clerk II, Division of City Schools of San
12 Pablo City, was designated on July 20, 1984 as
Cadiente v. Santos, 142 SCRA 280, 284 (1986), Officer-in-Charge of the Division Supply Office by
citing Claudio v. Subido, 40 SCRA 481 (1971). the DECS Regional Director Saturnino R. Magturo
13
Griño v. Civil Service Commission, 194 SCRA (Annex "H", petition, p. 55, Rollo) in view of the
458, 466 (1991). retirement of the Supply Officer I, Mr. Jose I.
14 Aviquivil.
Santos v. Macaraig, 208 SCRA 74, 84 (1992).
15 Prior to such designation, or from the period
Civil Service Commission v. Salas, supra.
February 16, 1984 to June 16, 1984, petitioner
16
Tria v. Sto. Tomas, 199 SCRA 833, 840-841 was designated as Property Inspector and In-
(1991). Charge of the Supply Office performing the duties
17
Corpuz v. Cuaderno, supra. and responsibilities of the Supply Officer I (p. 55,
18
Rollo).
Griño v. Civil Service Commission, supra.
19
Two (2) years thereafter, or on September 19,
Piñero v. Hechanova, 18 SCRA 417, 424 (1966). 1986, the Division Superintendent of City Schools
20
Ingles v. Mutuc, 26 SCRA 171, 177 (1969). of San Pablo City, Milagros Tagle, issued a
21 promotional appointment to private respondent
Laurel V v. Civil Service Commission, 203 SCRA Leonarda D. de la Paz as Supply Officer I in the
195, 204 (1991). DECS Division of San Pablo City. She assumed and
22
Ingles v. Mutuc, supra. performed the duties and functions of the position
23 and received the compensation and benefits
87 Phil. 289, 298 (1950).
therefor.
24
Black’s Law Dictionary, Sixth Ed., p. 468, 1990.
At the time of her appointment, private
25
307 SCRA 657, 661-662 (1999). respondent was then holding the position of Clerk
26
311 SCRA 268, 285 (1999). II, Division of City Schools of San Pablo City. From
27
August 25, 1976 to September 1983, she was
Sec. 52(B). designated as Assistant to the Supply Officer
Republic of the Philippines (DECS decision, p. 31, Rollo). The Civil Service
SUPREME COURT Regional Office IV approved her appointment as
Manila permanent "provided that there is no pending
administrative case against the appointee, no
EN BANC pending protest against the appointment, nor any
decision by competent authority that will
adversely affect the approval of (the)
G.R. No. 92403 April 22, 1992
appointment" (Annex "A", Comment of CSC, p
VICTOR A. AQUINO, petitioner, 164, Rollo).
vs.
One (1) month after, or on October 20, 1986
petitioner filed a protest with the DECS Secretary
questioning the qualification and competence of
private respondent for the position of Supply
Officer I.
In a decision dated May 4, 1987, DECS Secretary
Lourdes R. Quisumbing sustained the protest of
petitioner and revoked the appointment of private
respondent as Supply Officer I thus:
From the foregoing comparative statement of the
qualifications of Mr. Aquino and Mrs. de la Paz,
apparently the former has a decided advantage
over the latter in terms of education, experience
and training. Further examination of the
comparative statement shows that Mrs. de la Paz
has had no relevant in-service training course
attended and completed. Accordingly, therefore,
Mr. Aquino is preferred to Mrs. de la Paz for
appointment as Supply Officer I.
xxx xxx xxx
Based on all the foregoing and as records further
show that Mr. Aquino is competent and qualified
to hold the subject position and possesses the
eligibility requirement, this Office finds the instant
protest meritorious and hereby rules and so rules
that Mr. Aquino be appointed Supply Officer I in
place of Mrs. de la Paz, whose appointment
thereto is deemed revoked. (p. Annex "C", pp. 30-
31, Rollo)
Private respondent then filed her petition for
reconsideration of the aforequoted DECS decision
but the same was denied by Secretary
Quisumbing in a Resolution dated August 11,
1967.
On the bases of the aforementioned rulings of the
DECS Secretary, petitioner Aquino was issued a
permanent appointment dated August 11, 1987
as Supply Officer I by the DECS Regional Director
Pedro San Vicente effective October 26, 1987. On
the date of effectivity of his appointment,
petitioner assumed the duties and functions of the
position. The said appointment was approved by
the Civil Service Regional Office IV on October 27,
1987.
For her part, private respondent de la Paz filed on
October 16, 1987 a notice of appeal with motion
to maintain status quo to the Merit Systems
Protection Board (MSPB) which, on February 5,
1988, rendered a decision upholding the
appointment of Aquino as Supply Officer I (Annex
"D", petition pp. 33-35, Rollo).
From the decision of the MSPB, private
respondent appealed to public respondent Civil
Service Commission (CSC).
In Resolution No, 88-820 dated November 7,
1988, public respondent CSC found the appeal of
private respondent meritorious, thus revoking the
appointment of petitioner Aquino and restoring
private respondent de la Paz to her position as
Supply Officer I, DECS, Division of San Pablo City
under her previously approved appointment
(Annex "B", petition, pp. 26-29, Rollo).
From said decision, petitioner filed a motion for
reconsideration with prayer for issuance of a
temporary restraining order. Finding no merit to
the motion for reconsideration filed by petitioner,
public respondent CSC issued Resolution No. 90-
224 dated February 27, 1990 denying said motion
(Annex "A", petition, pp. 21- 24, Rollo).
Hence, this petition seeking the reversal of public
respondent Commission's action on petitioner's
appointment.
Two (2) interrelated issues on the extent of
authority of the Civil Service Commission to pass
upon the contested appointments were raised by
petitioner which could be simplified into whether
or not public respondent Civil Service Commission
committed grave abuse of discretion in revoking
the appointment of petitioner Victor A. Aquino as
Supply Officer I in the DECS Division of San Pablo
City as it found private respondent Leonarda de la
Paz better qualified.
In assailing the two (2) CSC Resolutions revoking
his appointment, petitioner invokes the ruling of
this Court in the case of Santiago v. Civil Service
Commission, G.R. No. 81467, October 27, 1989,
178 SCRA 733 and Galura v. Civil Service
Commission, G.R. 85812, June 1, 1989 (En Banc
resolution) that the Civil Service Commission has
no authority to revoke an appointment on the
ground that another person is more qualified for a
particular position for that would have constituted
an encroachment on the discretion vested solely
in the appointing authority. The Civil Service
Commission cannot exceed its power by
substituting its will for that of the appointing
authority.
In support of petitioner's cause, the Solicitor
General stresses the wide latitude of discretion
given to the appointing authority in the selection
and appointment of qualified persons to vacant
positions in the civil service which was
emphasized by the Court as rationale for the rule
laid down in Luego v. Civil Service Commission,
G.R. No. 69137, August 5, 1986, 143 SCRA 327,
Central Bank v. CSC, G.R. No. 80455-56, April 10,
1989, 171 SCRA 744, Patagoc v. CSC, G.R. No.
90229, May 14, 1990, 185 SCRA 411, that public
respondent CSC, not being the "appointing power"
in contemplation of law, has no authority to
revoke an appointment on the ground that
another person is more qualified for a particular
position and that the Commission has no authority
to direct the appointment of a substitute of its
choice.
We have consistently applied the above doctrine
in many cases with similar factual circumstances,
but we see no compelling reason to apply the
same in the instant case. In the cases cited
above, We ruled that the Civil Service Commission
has no authority to revoke an appointment simply
because it (CSC) believed that another person is
better qualified than the appointee for it would
constitute an encroachment on the discretion
solely vested on the appointing authority. The
situation is different as in the instant case, where
the Civil Service Commission revoked the
appointment of the successful protestant,
petitioner herein, principally because the right to
security of tenure of the prior appointee, private
respondent herein, to the contested position had
already attached (see CSC decision, pp. 28-29,
Rollo). It must be noted that public respondent
CSC did not direct the appointment of a substitute
of its choice. It merely restored the appointment
of private respondent who was first appointed to
the contested position.
The records show that private respondent was
issued a permanent appointment on September
19, 1986 as Supply Officer I in the DECS Division
of San Pablo City effective September 30, 1986.
On the basis of the of said appointment which was
approved by the Civil Service Regional Office No.
IV, private respondent assumed and performed
the duties and functions of the position as Supply
Officer I and received the compensation and
benefits of the said position in accordance with
the mandate of Section 9 par.(h) of the Civil
Service Law (P.D. 807, as amended). In
consonance with the doctrine laid down in
Villanueva v. Balallo, G.R. No. L-17745, October
31, 1963, 9 SCRA 407, that an appointment is
complete when the last act required of the
appointing power has been performed, but later
qualified in Favis v. Rupisan, G.R. No. L-22823,
May 19, 1966, 17 SCRA 190, that the acts of the
head of a department or office making the
appointment and the Commissioner of Civil
Service acting together, though not concurrently,
but consecutively, are necessary to make an
appointment complete, the permanent
appointment extended to private respondent,
under the circumstances of the case, is deemed
complete. As such, she is entitled to the
protection of the law against unjust removal.
The conclusion of respondent Commission in the
questioned decision that private respondent is
more qualified than petitioner merely supports
the validity of the restoration of private
respondent to her previously approved
appointment considering that she meets the
prescribed qualification standards required of the
position of Supply Officer I and the appropriate
civil service eligibility, to wit:
EDUCATION: Bachelor's degree with training in
Supply Management
EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service
(Professional)
It is well-settled that once an appointment is
issued and the moment the appointee assumes a
position in the civil service under a completed
appointment, he acquires a legal, not merely
equitable right (to the position), which is
protected not only by statute, but also by the
Constitution, and cannot be taken away from him
either by revocation of the appointment, or by
removal, except for cause, and with previous
notice and hearing (Mitra v. Subido, G.R No. L-
21691, September 15, 1967, 21 SCRA 127.
There is also authority for the rule that when the
appointing power has once acted and the
appointee has accepted the office and done what
is required of him upon its acceptance, his title to
the office becomes complete, and he can then be
removed only in the regular way (Mechem, Law of
Public Offices and Officers, Sec. 461, p. 294, citing
Marbury v. Madison, 1 Cranch (U.S.) 137). The
appointing power can not effect his removal
indirectly by rescinding or revoking his
appointment after it is complete.
There is thus reasonable ground for the rule that
the moment the discretionary power of
appointment has been exercised and the
appointee assumed the duties and functions of
the position, the said appointment cannot be
revoked by the appointing authority on the
ground merely that the protestant is more
qualified than the first appointee, subject however
to the condition that the first appointee should
possess the minimum qualifications required by
law. Otherwise, the security of tenure guaranteed
by Article IX-B, Section 2 par. (3) of the 1987
Constitution would be rendered meaningless if the
appointing authority is allowed to flip-flop in
exercising its discretionary power of appointment.
While a protest is a made of action that may be
availed of by the aggrieved party to contest the
appointment made, the protest must be "for
cause" or predicated on those grounds provided
for under Section 19 par. (6) of the Civil Service
Law (P.D. 807), namely: (1) that the appointee is
not qualified; (2) that the appointee is not the
next-in-rank; and (3) in case of appointment by
transfer, reinstatement, or by original
appointment, that the protestant is not satisfied
with the written special reason or reasons given
by the appointing authority.
We have defined the concept of "for cause" in
connection with removal of public officers in the
case of De los Santos v. Mallare, G.R. No. L-3881,
August 31, 1950, 87 Phil. 289, as follows: "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."
The ground relied upon by petitioner in his protest
that he is more qualified than private respondent
in terms of education, experience and training
does not fall within the meaning of "for cause"
contemplated by Article IX-B, Section 2 par. (3) of
the 1987 Constitution which would warrant the
revocation, if not removal, of the appointment of
private respondent. Neither does it fall under the
grounds of appeal contemplated under Section 19
par. (6) of the Civil Service Law (P.D. 807).
Therefore, the protest of petitioner did not
adversely affect the approval of the appointment
of private respondent.
Even on the assumption that the revocation of
private respondent's appointment was validly
exercised by DECS Secretary Quisumbing, still the
appointment extended to petitioner was tainted
with irregularity as it was issued before the
finality of the decision on the protest in violation
of CSC Resolution No. 83-343 which prohibits the
issuance of an appointment to protestant
(petitioner) if the protest case is not yet finally
resolved, since there is no vacancy in the position
pending resolution of the protest case. There can
be no appointment to a non-vacant position. The
incumbent must first be legally removed or his
appointment validly terminated (Costin v.
Quimbo, G.R. No. L-32271, January 27, 1983, 120
SCRA 159). An appointment to an office which is
not vacant is null and void ab initio (Morata v.
Court of Appeals, G.R. No. L-18975, May 25, 1964,
11 SCRA 42).
CSC Resolution No. 83-343 provides, thus:
An appointment though contested shall take
effect immediately upon issuance if the appointee
assumes the duties of the position and (the)
appointee is entitled to receive the salary
attached to the position. Likewise such
appointment shall become ineffective in case the
protest is finally resolved in favor of the
protestant, in which case the protestee shall be
reverted to his former position. (p. 223, Rollo)
Records reveal that the decision of the DECS
Secretary revoking the appointment of private
respondent was rendered on May 4, 1987 and the
motion for reconsideration filed by private
respondent was denied on August 11, 1987. The
appointment issued to petitioner as Supply Officer
I was dated August 11, 1987 and he assumed the
position on October 26, 1987 (date of effectivity
of his appointment) as reported by the Schools
Division Superintendent of San Pablo City (pp. 77-
78, Rollo). From all indications, the appointment
of petitioner dated August 11, 1987 was issued
with undue haste before the finality of the denial
of the motion for reconsideration.
While it is true that the appointing authority has a
wide latitude of discretion in making his choice in
the selection and appointment of qualified
persons to vacant positions in the civil service, we
cannot, however, give a stamp of approval to
such a procedural irregularity in extending
appointments, as in the instant case, to the
prejudice of the right to security of tenure of the
incumbent to the position.
ACCORDINGLY, the petition is DENIED. The
decision dated May 4, 1987 and the resolution
dated August 11, 1987 of the respondent Civil
Service Commission are hereby AFFIRMED. The
Secretary of the Department of Education, Culture
and Sports is hereby directed to restore private
respondent Leonarda de la Paz to her previously
approved appointment as Supply Officer I, DECS,
Division of San Pablo City.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla,
Bidin, Griño-Aquino, Regalado, Davide, Jr.,
Romero and Nocon, JJ., concur.
Bellosillo, J., took no part
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
I am constrained to take exception to the
conclusion of the majority that the right to
security of tenure of private respondent to the
contested position had already attached.
It should be noted that private respondent's
appointment on 19 September 1986 was
approved as permanent by the Civil Service
Regional Office IV subject to certain conditions,
namely, "(1) that there is no pending
administrative case against the appointee; (2) no
pending protest against the appointment, (3) nor
any decision by competent authority that will
adversely affect the approval of (the)
appointment" (numbering supplied).
In this case, a protest against the appointment
was timely filed by petitioner on 20 October 1986
questioning the qualification and competence of
private respondent. The protest was sustained by
the Secretary of the Department of Education,
Culture and Sports (DECS) on 4 May 1987 on the
ground that petitioner had a "decided advantage
over private respondent in terms of education,
experience and training." Petitioner was thus
appointed in place of private respondent whose
appointment was deemed revoked. That was a
decision by competent authority adversely
affecting the approval of private respondent's
appointment. Conditions Nos. 2 and 3 having
supervened, private respondent could not have
assumed the contested position under a
completed appointment. Consequently, private
respondent had acquired no legal right to security
of tenure that would have entitled her to removal
only "for cause."
On the contrary, it was petitioner who was issued
a permanent appointment by the DECS Regional
Director on 11 August 1987, effective on 26
October 1987 when petitioner assumed the duties
and functions of the position. That appointment
was approved by the Civil Service Regional Office
IV on 27 October 1987, without any qualifications
or conditions.
Private respondent's Motion for Reconsideration of
the DECS decision on petitioner's protest was
denied by that department on 11 August 1987. A
notice of appeal was filed by private respondent
to the Merit Systems Protection Board (MSPB) on
16 October 1987. On 5 February 1988, the MSPB
upheld petitioner's appointment.
On appeal, however, by private respondent to the
Civil Service Commission, the latter body, on 7
November 1988, found the appeal meritorious,
revoked petitioner's appointment "under the
previously approved appointment, " on the
ground that private respondent was "better
qualified" (Decision, p. 5). The CSC denied the
reconsideration sought by petitioner on 27
February 1990.
Under the circumstances, it can not be denied
that, in resolving private respondent's appeal to
it, the CSC had substituted its own choice for that
of the appointing authority. The general rule,
therefore, must apply: the discretion exercised by
the appointing power, in extending an
appointment to a given position to one of two
employees possessing the requisite minimum
qualifications for the position, will not generally be
interfered with and must be sustained. The Civil
Service Commission has no authority to revoke
the said appointment simply because it believes
that another employee is better qualified for that
would constitute an encroachment on the
discretion vested solely in the appointing
authority (Dr. Mariquita Mantala v. Hon. Ignacio
Salvador, G.R. No. 101646, February 13, 1992,
citing Luego v. Civil Service Commission, 143
SCRA 327; Central Bank v. Civil Service
Commission, 171 SCRA 744; and Santiago, Jr. v.
Civil Service Commission, 178 SCRA 733).
To state that respondent CSC "did not direct the
appointment of a substitute of its choice but
merely restored the appointment of private
respondent who was first appointed to the
contested position" (p. 7, Decision) is misleading
and inaccurate. There could have been no
"restoration" as private respondent's appointment
never attained permanency by reason of the
conditions that effectively hindered it from
acquiring that status, namely, the timely protest
and the decision by competent authority
adversely affecting it. By reason thereof, there
was no completed appointment much less any
security of tenure to speak of that would have
entitled private respondent to the protection of
the law against unjust removal (pp. 7-8, Decision).
Upon the foregoing considerations, I vote to grant
the Petition. It is petitioner Aquino who should be
appointed to the contested position, not private
respondent De la Paz, following our consistent
pronouncements on the matter, espoused in the
strongest terms in some instances, that the CSC
exceeds its power when it substitutes its will for
that of the appointing authority.
Feliciano, J., concurs.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
I am constrained to take exception to the
conclusion of the majority that the right to
security of tenure of private respondent to the
contested position had already attached.
It should be noted that private respondent's
appointment on 19 September 1986 was
approved as permanent by the Civil Service
Regional Office IV subject to certain conditions,
namely, "(1) that there is no pending
administrative case against the appointee; (2) no
pending protest against the appointment, (3) nor
any decision by competent authority that will
adversely affect the approval of (the)
appointment" (numbering supplied).
In this case, a protest against the appointment
was timely filed by petitioner on 20 October 1986
questioning the qualification and competence of
private respondent. The protest was sustained by
the Secretary of the Department of Education,
Culture and Sports (DECS) on 4 May 1987 on the
ground that petitioner had a "decided advantage
over private respondent in terms of education,
experience and training." Petitioner was thus
appointed in place of private respondent whose
appointment was deemed revoked. That was a
decision by competent authority adversely
affecting the approval of private respondent's
appointment. Conditions Nos. 2 and 3 having
supervened, private respondent could not have
assumed the contested position under a
completed appointment. Consequently, private
respondent had acquired no legal right to security
of tenure that would have entitled her to removal
only "for cause."
On the contrary, it was petitioner who was issued
a permanent appointment by the DECS Regional
Director on 11 August 1987, effective on 26
October 1987 when petitioner assumed the duties
and functions of the position. That appointment
was approved by the Civil Service Regional Office
IV on 27 October 1987, without any qualifications
or conditions.
Private respondent's Motion for Reconsideration of
the DECS decision on petitioner's protest was
denied by that department on 11 August 1987. A
notice of appeal was filed by private respondent
to the Merit Systems Protection Board (MSPB) on
16 October 1987. On 5 February 1988, the MSPB
upheld petitioner's appointment.
On appeal, however, by private respondent to the
Civil Service Commission, the latter body, on 7
November 1988, found the appeal meritorious,
revoked petitioner's appointment "under the
previously approved appointment, " on the
ground that private respondent was "better
qualified" (Decision, p. 5). The CSC denied the
reconsideration sought by petitioner on 27
February 1990.
Under the circumstances, it can not be denied
that, in resolving private respondent's appeal to
it, the CSC had substituted its own choice for that
of the appointing authority. The general rule,
therefore, must apply: the discretion exercised by
the appointing power, in extending an
appointment to a given position to one of two
employees possessing the requisite minimum
qualifications for the position, will not generally be
interfered with and must be sustained. The Civil
Service Commission has no authority to revoke
the said appointment simply because it believes
that another employee is better qualified for that
would constitute an encroachment on the
discretion vested solely in the appointing
authority (Dr. Mariquita Mantala v. Hon. Ignacio
Salvador, G.R. No. 101646, February 13, 1992,
citing Luego v. Civil Service Commission, 143
SCRA 327; Central Bank v. Civil Service
Commission, 171 SCRA 744; and Santiago, Jr. v.
Civil Service Commission, 178 SCRA 733).
To state that respondent CSC "did not direct the
appointment of a substitute of its choice but
merely restored the appointment of private
respondent who was first appointed to the
contested position" (p. 7, Decision) is misleading
and inaccurate. There could have been no
"restoration" as private respondent's appointment
never attained permanency by reason of the
conditions that effectively hindered it from
acquiring that status, namely, the timely protest
and the decision by competent authority
adversely affecting it. By reason thereof, there
was no completed appointment much less any
security of tenure to speak of that would have
entitled private respondent to the protection of
the law against unjust removal (pp. 7-8, Decision).
Upon the foregoing considerations, I vote to grant
the Petition. It is petitioner Aquino who should be
appointed to the contested position, not private
respondent De la Paz, following our consistent
pronouncements on the matter, espoused in the
strongest terms in some instances, that the CSC
exceeds its power when it substitutes its will for
that of the appointing authority.
Feliciano, J., concurs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Francisco S. Reyes for petitioner.
Office of the Solicitor General Felix Bautista
Angelo and Solicitor Augusto Luciano for
respondents.
Jose P. Laurel and Abelardo Subido as amici
curiae.
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 interim appointment 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 pleasure any 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
well-defined 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 policy-
determining. 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.
Moran, C.J., Ozaeta, Paras, Pablo, and
Montemayor, JJ., concur.
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.
REYES, J.:
I concur in this opinion of Mr. Justice Bengzon.
Footnotes
1
Cf. People vs. Vera, 65 Phil., 56, 137
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 85670 July 31, 1991
ROGELIO A. TRIA petitioner,
vs.
CHAIRMAN PATRICIA A. STO. TOMAS, CIVIL
SERVICE COMMISSION, RET. BRIG. GEN. JOSE
T. ALMONTE, RET. COL. ERNESTO P. RAVINA
and RET. GEN. MIGUEL M. VILLAMOR,
respondents.
Florosco P. Fronda for petitioner.
FELICIANO, J.:p
Petitioner Rogelio A. Tria had been employed with
the Bureau of Intelligence and Investigation later
renamed Finance Ministry Intelligence Bureau
(FMIB) now known as the Economic Intelligence
and Investigation Bureau (EIIB) of the Department
of Finance, Region 5, Legaspi City, as a
Management and Audit Analyst I, a position
expressly described in the letter of appointment
as "confidential." 1 The appointment was signed
by Pelagio A. Cruz, Lieutenant General, AFP (Ret)
Commissioner, FMIBI." 2
On 27 September 1984, petitioner wrote a
confidential report to the FMIB Deputy
Commissioner detailing the nonfeasance of a FMIB
lawyer assigned to Region 5. Petitioner's report
recommended the lawyer's replacement "With a
competent and able lawyer to handle the cases
brought to his attention." 3 On 14 October 1986,
petitioner submitted another confidential report,
addressed to the Deputy Executive Secretary,
Office of the President, this time concerning Col.
Jackson P. Alparce (Ret.). FMIB Region 5 Director.
On 20 October 1986, petitioner filed an
application for vacation leave for 100 working
days, covering the period 1 November 1986 to 30
April 1987. Petitioner sought to take advantage of
a Civil Service circular which allows employees
who propose to seek interim employment abroad,
to go on prolonged leave of absence without pay
without being considered separated from the
service. 4 The application was approved by his
immediate supervisor and Chief, Intelligence and
Investigation Service, Col. Ruperto Amistoso
(Ret.), and the personnel officer, Col. Domingo
Rodriguez (Ret.), both based in the Region 5 office
of the FMIB.
On 23 October 1986, when petitioner was already
in Manila attending to the processing of his travel
papers, a Memorandum was sent to him in
Legaspi City from the FMIB Central Office in
Quezon City by respondent Assistant FMIB
Commissioner Brig. Gen. Miguel Villamor (Ret.),
referring to the confidential report sent out to the
Office of the President. The Memorandum in part
stated:
Be reminded that as an agent of FMIB, it is
inherent in your duties to report to the
Commissioner or other authorities of FMIB of any
irregularity committed by employees/officials in
that Region [5] to enable them to take
appropriate action/investigation and/or
disciplinary action.
However, it appears that you opted to submit said
report directly to the Office of the President,
Malacañang which adversely affected the
Bureau's image and placed the Commissioner in
an embarrasing position.
In view thereof, you are required to submit your
explanation in writing within five (5) working days
from receipt hereof why no disciplinary action
should be taken against you for non-compliance
with office rules and regulations. 5
Since petitioner had failed to receive and hence to
respond to the above Memorandum, another
Memorandum from Quezon City dated 17
November 1986 was issued, this time by
respondent Col. Ernesto Rabina (Ret.), Chief,
Administrative Service, FMIB, reminding petitioner
of his duty to submit the required written
explanation. That Memorandum went on to state:
Be informed further that your application for sick
[should have been vacation] leave dated October
22, 1986 . . . has been disapproved pursuant to
Sec. 16 of Civil Service Rule No. XVI which reads
thus: "Leave of absence for any reason other than
serious illness must be contingent upon the needs
of the service."
Inasmuch as your services in that Region [5] is
(sic) needed, you are directed to report for work
thereat within ten (10) working days from the
date of this Memorandum otherwise, this office
will be constrained to drop you from the rolls of
FMIB for prolonged/unauthorized absence and
non-compliance with office rules and regulations.
6
Petitioner, however, had already left the country
on 26 October 1986, and was unable to comply
with the express directives of the second
Memorandum. He was therefore considered to be
on absence without official leave (AWOL). This
prolonged absence, as well as his failure to
explain his sending out the confidential report to
Malacañang, prompted respondent EIIB
Commissioner Brig Gen. Jose Almonte (Ret.) to
issue Letter-Order No. 06-87 dated 12 January
1987 informing petitioner of the termination of his
services retroactive to "1 November 1986 for
continuous absence without official leave and for
loss of confidence." 7
It was upon his return to the country sometime in
May 1987 that petitioner came to know of the
abovementioned Letter-Order and of the two
Memoranda. In a letter dated 20 May 1987 to
respondent Almonte, petitioner asked for
reinstatement, stating that his application for
vacation leave had been approved by his
immediate chief and the personnel officer. With
respect to the confidential report he had
addressed to the Deputy Executive Secretary,
petitioner explained:
. . . I would like to state that the reason why I
submitted my report to the Office of the President
is precisely to protect the image of the bureau.
Earlier, I handed a report to the then Deputy
Commissioner Mendoza regarding said
irregularities committed sometime in 1984-85,
particularly by Atty. Geronga, R-5 and Director
Col. Alfarce No investigation was undertaken
inspite of my report. In the meanwhile, the FMIB-
R-5 always appeared in the local newspaper
regarding the unscrupulous behavior of the
director which not only affects the good image of
our organization but also of the subordinates of
the office. Thus, I felt in goodfaith that the matter
should be brought to the attention of the Deputy
Executive Secretary of Malacañang so that
appropriate action can be taken for the good of
the service. I submit that I did this in my honest
belief that it is my duty to do so as a public
servant and a loyal member of this organization.
. . . I reiterate that the same was done in good
faith and not for any selfish motive. 8
Reinstatement was, however, denied by
respondent Rabina in a letter dated 11 August
1987, which in part read:
xxx xxx xxx
Be informed that Commissioner, EIIB has directed
the Investigation & Prosecution Office this bureau
to conduct a brief investigation on your case and
the established facts show that this office
committed no injustice. Your violation of office
rules and regulations were the grounds for your
termination for loss of confidence. 9
Petitioner's request for payment of the cash
equivalent of his accrued leave credits
corresponding to a total of 179 days was also
denied by respondent Villamor on the ground
that:
. . . Section 6 of the Civil Service rules and laws
provides that IX . . . the removal for cause of an
official or employee shall carry with it forfeiture of
. . . other benefits arising from his employment. 10
Petitioner then filed a petition for review with
prayer for reinstatement and backwages before
respondent Civil Service Commission
("Commission") which the Commission denied.
Respondent Commission held that the grant of
petitioner's application for vacation leave,
notwithstanding the accumulation of sufficient
leave credits, was discretionary on the part of
respondent Rabina, the approving official, citing
In re: Nicolasura Victor (CSC Res. No. 88-251)
dated 25 May 1988 and Section 20 of the Revised
Civil Service Rules which read:
Leave of absence for any reason other than the
serious illness of an officer or employee . . . must
be contingent upon the needs of the service. 11
Having failed to get reconsideration, petitioner
came to this Court on the present Petition for
Certiorari.
Petitioner challenges his dismissal as being
arbitrary. The propriety of petitioner's alleged
unlawful removal boils down to the question of
whether or not an employee holding a position
considered as "primarily confidential" may be
dismissed on grounds of "loss of confidence" by
the appointing authority on the basis of the
employee's having gone on unauthorized leave of
absence and of his having filed a confidential
report on one of his superiors directly with the
Office of the President.
We begin with the proposition that the effects of
characterizing a position as "primarily
confidential" are two-fold: firstly, such
characterization renders inapplicable the ordinary
requirement of filling up a position in the Civil
Service on the basis of merit and fitness as
determined by competitive examinations; and
secondly, while the 1987 Constitution does not
exempt such positions from the operation of the
principle set out in Article IX (B), Section 2 (3) of
the same Constitution that "no officer or
employee of the Civil Service shall be removed or
suspended except for cause provided by law," the
"cause provided by law" includes "loss of
confidence." 12 It is said to be a settled rule that
those holding primarily confidential positions
"continue for so long as confidence in them
endures. Their termination can be justified on the
ground of loss of confidence because in that case
their cessation from office involves no removal
but the expiration of their term of office. 13
Notwithstanding the refined distinction between
removal from office and expiration of the term of
a public officer, the net result is loss of tenure
upon loss of confidence on the part of the
appointing power.
A position in the Civil Service may be considered
primarily confidential: (1) when the President of
the Philippines, upon recommendation of the Civil
Service Commission, has declared that position to
be primarily confidential; or (2) when the position,
given the character of the duties and functions
attached to it, is primarily confidential in nature.
14
All positions in the EIIB were apparently
declared as "highly confidential" by former
President Marcos in Letter of Implementation No.
71, dated 4 September 1978, which reads in part
as follows:
Pursuant to Presidential Decree No. 1458, dated
June 11, 1978, and letter dated August 18, 1978
of the President/Prime Minister creating the
Bureau of Intelligence and Investigation (BII) [now
the EIIB], the following directives are hereby
issued for immediate implementation by the new
Bureau:
xxx xxx xxx
4. The Commissioner of the BII with the approval
of the Ministry of Finance, is hereby instructed to
organize and appoint his staff . . . All positions in
the BII are highly confidential in nature and
incumbents thereof may be removed for loss of
confidence by appropriate authority. 15
When one examines, however, the actual duties
and functions of petitioner as a "Management and
Audit Analyst I" in the FMIB, as set out in the job
description of that position, one is struck by the
ordinary and day to day character of such duties
and functions:
Prepares required survey materials, work plans
and schedules; gathers data and makes
investigations and analyzes (sic) of administrative
problems relating to organization, personnel and
procedure; supplements data gathered by
interviewing heads of office or private individuals
or by observing actual operations; examines and
analyzes reorganization proposals in the light
gathered and facts observed; analyzes causes of
inefficiency or lack of economy, undertakes
required study and research; prepares survey
reports and write (sic) drafts of tentative
organization plans, discusses and justifies such
plans to supervisor and appropriate bodies;
maintains close liaison work with head of offices
or organizations studies operational methods and
procedures of the organization to simplify the
work and improve efficiency; studies and
recommends measures to insure industrial safety
and prevention of accidents; supervises the
installation of management control devices;
assists in the compilation, analysis and
interpretation of important statistics for use of
management. 16 (Emphasis Supplied)
It is thus useful to recall that in Piñero v.
Hechanova, 17 the Court, speaking through J.B.L.
Reyes, J., said:
It is plain that, at least since the enactment of the
1959 Civil Service Act (R.A. 2260), it is the nature
of the position which finally determines whether a
position is primarily confidential, policy
determining or highly technical. Executive
pronouncements can be no more than initial
determinations that are not conclusive in case of
conflict. And 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, of the
Constitution. 18 (Citation omitted; emphasis partly
in the original and partly supplied)
The above doctrine was reiterated and relied
upon in Borres v. Court of Appeals. 19 It is also
important to note that the concept constitutive of
"primarily confidential" positions has been
narrowly drawn by this Court. Thus, in De los
Santos v. Mallare, 20 the Court said, through Mr.
Justice Pedro Tuason:
. . . [T]hree 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 involve the highest
degree of confidence, or are closely bound up
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 be terminable at the will of the
officer that makes them.
xxx xxx xxx
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 [discussion
and delegation and reporting] without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters
of state. . . . . 21
The positions which this Court has in the past
characterized as "primarily confidential" include:
private secretaries of public functionaries; 22 a
security officer assigned as bodyguard of the
person of a public officer and responsible for
taking security measures for the safety of such
official, 23 City Legal Officer of Davao City vis-a-vis
the Davao City Mayor; 24 Provincial Attorney of
Iloilo Province vis-a-vis the Governor of Iloilo
Province. 25 It is also instructive to refer to some
of the positions which the Court has refused to
designate as "primarily confidential:" e.g.,
members of the Customs Police Force or Port
Patrol; 26 Special Assistant to the Governor of the
Central Bank, in charge of the Export Department;
27
Senior Executive Assistant, Clerk I and
Supervising Clerk I and stenographer in the Office
of the President. 28
It is evident that the duties of petitioner related to
the study and analysis of organizational structures
and procedures, with the end in view of making
recommendations designed to increase the levels
of efficiency and coordination within the
organization so analyzed. Moreover, the modest
rank and fungible nature of the position occupied
by petitioner, is underscored by the fact that the
salary attached to it was no more than P1,500.00
a month at the time he went on leave (October,
1986). There thus appears nothing to suggest that
petitioner's position was "highly" or even
"primarily confidential" in nature. The fact that
petitioner may, sometimes, handle "confidential
matters" or papers which are confidential in
nature, does not suffice to characterize their
positions as primarily confidential. 29
Accordingly, we believe and so hold that
petitioner Tria's particular position of
"Management and Audit Analyst I" is not a
"primarily confidential" position so as to render
him removable upon, or the expiration of his term
of office concurrent with, "loss of confidence" on
the part of the appointing power who, as already
noted, was the then Commissioner of the FMIB.
If petitioner Tria was not legally removable upon
"loss of confidence" on the part of the FMIB
Commissioner, was there nonetheless legal cause
provided by law for his dismissal from the service?
We believe that the constitutional prohibition
against suspension or dismissal of an officer or
employee of the Civil Service "except for cause
provided by law" is a guaranty of both procedural
and substantive due process. Procedural due
process requires that suspension or dismissal
come, as a general rule, only after notice and
hearing. 30 In the case at bar, as already noted,
the EIIB issued a Memorandum to petitioner, after
he was already in Manila, requiring him to explain
why no disciplinary action should be taken against
him for having submitted a report directly to the
Office of the President, Malacañang, 'which
adversely affected the bureau's image and placed
the Commissioner in an embarrassing position,"
which Memorandum was not received by
petitioner. However, after his return from abroad
and upon request of petitioner, another
investigation was conducted by the EIIB where
petitioner had an opportunity to explain his side
of the matter. The Court considers that, under the
circumstances of this case the subsequent
investigation constituted substantial compliance
with the demands of procedural due process.
Substantive due process requires, among other
things, that an officer or employee of the Civil
Service be suspended or dismissed only "for
cause," a phrase which, so far as concerns
dismissals of public officers not holding positions
which are "policy determining, highly technical or
primarily confidential," has acquired, according to
this Court, the following "well-defined concept."
It means for reasons which the law and sound
policy recognize 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
cause. Moreover, the cause must relate to and
effect the administration of the office, and must
be restricted to something of a substantial nature
directly affecting the rights and interests of the
public. 31
In the instant case, we have noted earlier that
petitioner was charged with violation of official
rules and regulations consisting more specifically,
of:. (1) having gone on an extended unauthorized
leave of absence; (2) having bypassed official
channels in transmitting a report concerning
alleged misfeasance or non-feasance on the part
of a superior officer of the EIIB directly to the
Office of the President through the Deputy
Executive Secretary, rather than through the
respondent EIIB Commissioner.
It is true that petitioner was probably precipitate
in taking off for abroad before his application for
vacation leave was formally approved by the FMIB
Central Office in Quezon City. We must, however,
take into account the circumstance that his
application for leave without pay had been
approved or indorsed for approval by his
immediate superior in the FMIB, Region 5 Office,
where petitioner was assigned, and so petitioner
was not completely without basis in believing that
the formal approval of his application in the FMIB
Central Office would follow as a matter of course.
It is pertinent to point out that his immediate
superiors in the Region 5, FMIB Office were the
persons in the best position to ascertain whether
his presence in the Regional office during the
period covered by his application for leave
without pay was really demanded by imperious
exigencies of the service. The record is bare of
any indication what those exigencies were, at that
particular time. There is also no showing that the
FMIB actually suffered any prejudice by reason of
the non-availability of the services of petitioner
during his leave without pay. Petitioner was, it
should be recalled, a "Management and Audit
Analyst," a humble rank separated by many ranks
from the appointing power, the FMIB
Commissioner. It thus appears to the Court that,
on balance, the extreme penalty of dismissal from
the service was unduly harsh in the case of
petitioner; that suspension for thirty (30) days
would have been more than adequate punishment
for precipitately going on leave without pay prior
to formal approval of his leave by the Central
Office of the FMIB; and that the real and efficient
cause of his dismissal from the service was the
fact that he had bypassed official channels in
rendering the confidential report addressed to the
Deputy Executive Secretary, Office of the
President, concerning the then Regional Director
of FMIB, Region 5.
After careful consideration, we believe and so
hold that, in the circumstances of this case, that
act of petitioner did not constitute lawful cause for
his dismissal from the service. We believe, on the
contrary, that petitioner's case is covered by the
rule in Gray v. De Vera. 32 Benjamin A. Gray was
Secretary of the Board of Directors of the People's
Homesite and Housing Corporation ("PHHC"). He
sent a telegram to President Carlos P. Garcia
reading as follows:
Aye suggest complete revamp PHHC Board's top
members should not usurp management
functions (comma) should willingly attend
meetings (comma) should not grab as quotas
dwelling awards despite applicants of long
standing (comma) should not divide among
themselves emergency positions (comma) should
create positions only in case of necessity and not
because they want to accommodate their useless
men (comma) and should respect civil service
law. 33
On the following day, the PHHC Board of Directors
terminated Gray's services "on account of loss of
confidence due to treachery or disloyalty to the
Board." In holding that Gray had been unlawfully
dismissed and in ordering his reinstatement with
backwages, this Court held:
The removal of Board Secretary Gray from the
primarily confidential position to which he had
been permanently appointed was illegal in view of
the following considerations:
(1) There was no lawful cause for removal. The
sending of the telegram of January 12, 1959 to
President Carlos P. Garcia suggesting a complete
revamp of the Board of Directors of the PHHC due
to the Board's acts of management and
misconduct, the most serious of which was that
the Directors were grabbing as 'quotas dwelling
awards despite applicants of long standing,' was
an act of civic duty. The telegram was a
privileged communication presumably made in
good faith and capable of being substantiated by
evidence.
According to the testimony of Director Manuel T.
Leelin the act of Board Secretary Gray in sending
the telegram of January 12,1959 to the President
of the Philippines was an act of treachery or
disloyalty to the Board. . . .
xxx xxx xxx
We cannot agree, for the following reasons:
First. As pointed out, the sending of the telegram
to the President of the Philippines was an act of
civic duty. The telegram was a privileged
communication presumably sent in good faith and
capable of being proved by evidence.
Second. The position of secretary to the board of
a government corporation was declared by the
President in Executive Order No. 399 primarily
confidential in nature with the obvious intent that
the position be filled by an appointee of
unquestioned honesty and integrity. Hence, the
act of Board Secretary Gray in reporting to the
President the Board's act of mismanagement and
misconduct was in consonance with the honesty
and integrity required for the position.
Assuming that Gray owed loyalty to the Board,
that loyalty was in the interest of good
government and not in the personal interest of
the Directors to the extent of concealing the
shenanigans of the Board. . . . 34
In the case at bar, we note that petitioner sent his
confidential (and presumably sealed) report to an
office having overall administrative supervision
and control over the FMIB (i.e., the Office of the
President); the report was not, in other words,
sent either to the media or to an office or agency
having no administrative jurisdiction over the
public official or office complained of. That report
was a privileged communication and the author
thereof enjoys the benefit of the presumption that
he acted in good faith. The respondents have not
alleged that petitioner acted with malice in fact.
We do not believe that petitioner's act constituted
serious misconduct but rather, on the contrary,
was an act of personal and civic courage by which
petitioner exhibited his loyalty to the FMIB as an
institution and ultimately to the Government of
the Republic of the Philippines.
Considerations of fundamental public policy thus
compel us to hold that petitioner was dismissed
without lawful cause and must, therefore, be
reinstated to the position he previously held or, If
that position is no longer available, to some other
position in the EIIB of equivalent rank and
emoluments. In addition, petitioner is entitled to
payment of his backwages (basic salary plus
allowances, if any computed from the time of his
return from his leave of absence, minus an
amount equivalent to one-month's backwages
representing the appropriate penalty for
petitioner's infraction of ordinary office rules.
WHEREFORE, the Petition for Certiorari is hereby
GRANTED DUE COURSE, the Comments filed by
respondents are hereby CONSIDERED as their
Answers to the Petition and Resolutions Nos. 88-
150 and 88-787 of public respondent Civil Service
Commission as well as Letter-Order No. 06-87 of
public respondent EIIB Commissioner, are hereby
ANNULLED and SET ASIDE. Public respondents are
hereby ORDERED to reinstate forthwith petitioner
to his former position, or to a position of
equivalent rank and compensation, and to pay
him the backwages, allowances and other
benefits lawfully due him counted from May 1987,
when he returned to the country from his leave of
absence, until actual reinstatement, less one
month's backwages. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Footnotes
1 Annex "1", Comment of Respondents, Rollo, p.
81.
2 Id.
3 Annex 'D" of Petition, Rollo, p. 26.
4 Resolution No. 85-444 of the Civil Service
Commission entitled "Policy on Leave of Absence
to Work Abroad."
5 Annex "F" of Petition, Rollo, p. 31; emphasis
supplied.
6 Annex "G" of Petition, Rollo, p. 32; emphasis
supplied.
7 Annex "2" of Comment; Rollo, p. 82.
8 Annex "H" of Petition, Rollo, p. 34; emphasis
supplied.
9 Annex "I" of Petition, Rollo, p. 35; emphasis
supplied.
10 Annex "K" of Petition, Rollo, p. 37.
11 Annex "A" of Petition, Rollo, p. 21.
12 E.g., Corpuz v. Cuaderno, 87 Phil. 289; 13
SCRA 591 (1965); Hernandez v. Villegas, 14 SCRA
544 (1965); Cariño v. Agricultural Credit and
Cooperative Financing Administration, 18 SCRA
183 (1966); Ingles v. Mutuc, 26 SCRA 171 (1968).
13 Hernandez v. Villegas supra; Griño v. Civil
Service Commission, G.R. No. 91602, dated 26
February 1991.
14 Salazar v. Mathay, 73 SCRA 269 (1976).
Section 2 of Rule 20, Revised Civil Service Rules,
promulgated pursuant to the provisions of Section
16 (e) of Republic Act No. 2260 (the Civil Service
Act of 1959) provided that:
"Upon recommendation of the Commissioner, the
President may declare a position as policy-
determining, primarily confidential or highly
technical in nature. . . ." (58 Official Gazette No.
49, Supplement, 3 November 1962)
15 Rollo, p. 72.
16 Annex "4" of Comment, Rollo, p. 88.
17 18 SCRA 417 (1966).
18 18 SCRA at 423.
19 153 SCRA 120 (1987).
20 87 Phil. 289 (1950).
21 87 Phil. 297-298; emphasis and brackets
supplied.
22 See Corpus v. Cuaderno, 13 SCRA at 596.
23 Borres v. Court of Appeals, supra.
24 Cadiente v. Santos, 142 SCRA 280 (1986).
25 Griño v. Civil Service Commission, supra.
26 Piñero v. Hechanova, supra.
27 Corpuz v. Cuaderno, supra.
28 Ingles v. Mutuc, 26 SCRA 171 (1968).
29 In Ingles v. Mutue (supra), Concepcion, C.J.,
said:
Indeed, physicians handle confidential matters.
Judges, fiscals and court stenographers generally
handle matters of similar nature. The Presiding
and Associate Justices of the Court of Appeals
sometimes investigate, by designation of the
Supreme Court, administrative complaints against
judges of first instance, which are confidential in
nature. Officers of the Department of Justice,
likewise, investigate charges against municipal
judges. Assistant Solicitors in the Office of the
Solicitor General often investigate malpractice
charges against members of the Bar. All of these
are "confidential" matters, but such fact does not
warrant the conclusion that the office position of
all government physicians and all Judges, as well
as the aforementioned assistant solicitors and
officers of the Department of Justice are primarily
confidential in character. (26 SCRA at 177-178;
emphasis supplied)
30 Reyes v. Subido, 66 SCRA 203 (1975). Section
36 (a) of the Civil Service Decree provides:
"No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as
provided by law and after due process."
31 De los Santos v. Mallare, 87 Phil. at 293.
32 28 SCRA 268 (1969).
33 28 SCRA at 270.
34 28 SCRA at 272-275; emphasis supplied.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as
Provincial Governor of Batangas, petitioner,
vs.
CIVIL SERVICE COMMISSION and LORENZO
SANGALANG, respondents.
Provincial Attorney for respondent.
RESOLUTION
DAVIDE, JR., J.:p
Is the position of Provincial Administrator
primarily confidential?
Does the rule on nepotism apply to designation?
May a private citizen who does not claim any
better right to a position file a verified complaint
with the Civil Service Commission to denounce a
violation by an appointing authority of the Civil
Service Law and rules?
These are the issues raised in this petition.
The antecedent facts are not disputed.
Petitioner, the duly elected Governor of the
Province of Batangas, upon assuming office on 3
March 1980, appointed his brother, Benjamin
Laurel, as Senior Executive Assistant in the Office
of the Governor, a non-career service position
which belongs to the personal and confidential
staff of an elective official. 1
On 31 December 1980, the position of Provincial
Administrator of Batangas became vacant due to
the resignation of Mr. Felimon C. Salcedo III.
Allegedly for lack of qualified applicants and so as
not to prejudice the operation of the Provincial
Government, petitioner designated his brother,
Benjamin Laurel, as Acting Provincial
Administrator effective 2 January 1981 and to
continue until the appointment of a regular
Provincial Administrator, unless the designation is
earlier revoked. 2
On 28 April 1981, he issued Benjamin Laurel a
promotional appointment as Civil Security Officer,
a position which the Civil Service Commission
classifies as "primarily confidential" pursuant to
P.D. No. 868. 3
On 10 January 1983, private respondent
Sangalang wrote a letter to the Civil Service
Commission 4 to bring to its attention the
"appointment" of Benjamin Laurel as Provincial
Administrator of Batangas by the Governor, his
brother. He alleges therein that: (1) the position in
question is a career position, (2) the appointment
violates civil service rules, and (3) since the
Governor authorized said appointee to receive
representation allowance, he violated the Anti-
Graft and Corrupt Practices Act. He then asks that
the matter be investigated.
In his letter to the Chairman of the Civil Service
Commission dated 18 January 1983, 5 Jose A.
Oliveros, Acting Provincial Attorney of Batangas,
for and in behalf of herein petitioner, asserts that
the latter did not violate the provision prohibiting
nepotism under Section 49 of P.D. No. 807
because, with respect to the positions of Senior
Executive Assistant and Civil Security Officer, both
are primarily confidential in nature; and, with
respect to the position of Provincial Administrator:
. . . what is prohibited under Section 49 of P.D.
807 is the appointment of a relative to a career
Civil Service position, like that of a provincial
administrator. Governor Laurel did not appoint his
brother, Benjamin, as Provincial Administrator. He
merely designated him "Acting Provincial
Administrator." And "appointment" and
"designation" are two entirely different things.
Appointment implies original establishment of
official relation. Designation is the imposition of
new or additional duties upon an officer to be
performed by him in a special manner. It
presupposes a previous appointment of the officer
in whom the new or additional duties are
imposed.
Appointment is generally permanent, hence the
officer appointed cannot be removed except for
cause; designation is merely temporary and the
new or additional powers may be withdrawn with
or without cause.
Benjamin C. Laurel had already been appointed
Senior Executive Assistant in the Office of the
Governor when Governor Laurel designated him
Acting Provincial Administrator.
It is further alleged that there was no violation of
the Anti-Graft and Corrupt Practices Act because:
As Acting Provincial Administrator, Benjamin is
entitled under Office of the President
Memorandum-Circular No. 437, series of 1971, to
a monthly representation allowance of P350.00.
And said allowance is "strictly on reimbursement
basis." 6
On 12 July 1983, the Civil Service Commission
handed down the aforesaid Resolution No. 83-358
7 which, inter alia, revokes the designation of
Benjamin as Acting Provincial Administrator on
the ground that it is "nepotic", or in violation of
Section 49, P.D. No. 807 on nepotism. The
relevant portion of said section reads as follows:
SECTION 49. Nepotism. — (a) All appointments in
the national, provincial, city and municipal
governments or in any branch or instrumentality
thereof, including government-owned or
controlled corporations, made in favor of a
relative of the appointing or recommending
authority, or of the chief of the bureau or office, or
of the persons exercising immediate supervision
over him, are hereby prohibited.
As used in this Section, the word "relative" and
members of the family referred to are those
related within the third degree either of
consanguinity or affinity.
(b) The following are exempted from the
operation of the rules on nepotism: (1) persons
employed in a confidential capacity, (2) teachers,
(3) physicians, and (4) members of the Armed
Forces of the Philippines: Provided, however, That
in each particular instance full report of such
appointment shall be made to the Commission.
xxx xxx xxx
Although what was extended to Benjamin was
merely a designation and not an appointment, the
Civil Service Commission ruled that "the
prohibitive mantle on nepotism would include
designation, because what cannot be done
directly cannot be done indirectly." It further held
that Section 24(f) of Republic Act No. 2260
provides that no person appointed to a position in
the non-competitive service (now non-career)
shall perform the duties properly belonging to any
position in the competitive service (now career
service). The petitioner, therefore, could not
legally and validly designate Benjamin, who
successively occupied the non-career positions of
Senior Executive Assistant and Civil Security
Officer, to the position of Provincial Administrator,
a career position under Section 4 of R.A. No.
5185.
Petitioner's motion to reconsider said Resolution,
8 based on the claim that the questioned position
is primarily confidential in nature, having been
denied in Resolution No. 85-271 of 3 July 1985 9
wherein the respondent Civil Service Commission
maintains that said position is not primarily-
confidential in nature since it neither belongs to
the personal staff of the Governor nor are the
duties thereof confidential in nature considering
that its principal functions involve general
planning, directive and control of administrative
and personnel service in the Provincial Office,
petitioner filed the instant petition invoking the
following grounds:
A. Respondent Commission has committed a (sic)
grave abuse of discretion amounting to lack or
excess of jurisdiction when it held that the
position of provincial administrator is not a
primarily-confidential position because said ruling
is diametrically opposed to, and in utter disregard
of rulings of this Honorable Court as to what is a
primarily-confidential position under Article XII-B,
Sec. 2 of the Constitution.
B. Respondent Commission gravely abused its
discretion and acted without jurisdiction when it
arrogated unto itself the power to review a
designation made by petitioner by virtue of the
powers in him vested under Section 2077 of the
Revised Administrative Code.
C. Respondent Commission exceeded its
jurisdiction when it gave due course to the
complaint of private respondent and thereafter
promulgated the resolutions under question in
this petition.
D. There is no appeal, nor any other plain, speedy
and adequate remedy in the ordinary course of
law available to petitioner to have the questioned
resolutions of respondent Commission reviewed
and thereafter nullified, revoked and set aside,
other than this recourse to a petition for certiorari
under Rule 65 of the Rules of Court.
In the Comment filed for the respondent
Commission on 7 October 1985, the Solicitor
General sustains the challenged resolutions and
contends that the position of Provincial
Administrator is intended to be part of the career
system and since it requires a specific civil service
eligibility, it belongs to the career service under
Section 5(1) of P.D. No. 807 and has not been
declared primarily confidential by the President
pursuant to Section 1 of P.D. No. 868; that the
Commission has the authority to review,
disapprove, and set aside even mere
designations, as distinguished from appointments,
for Section 2 of P.D. No. 807 vests in it the power
to enforce the laws and rules governing the
selection, utilization, training and discipline of civil
servants; and that it can act on Sangalang's
complaint pursuant to Section 37 of P.D. No. 807,
for what he filed was not an action for quo
warranto, but an administrative complaint to
correct a violation of the Civil Service law and
rules which involved public service and the public
interest. Per Benitez vs. Paredes, 10 reiterated in
Tañada vs.
Tuvera, 11 where the question is one of public
right, the people are regarded as the real parties
in interest, and the relator at whose instigation
the proceedings are instituted need only show
that he is a citizen and as such interested in the
execution of the laws.
On 11 December 1985, petitioner filed his Reply
to the Comment insisting therein that the duties,
functions and responsibilities of the Provincial
Administrator render said position primarily
confidential in nature; the requirement of a
specific service eligibility and absence of a
presidential declaration that the position is
primarily confidential do not place the said
position in the career service; the position of
Provincial Administrator is in the non-career
service; and that the Benitez vs. Paredes and
Tañada vs. Tuvera cases are not applicable in this
case. Petitioner insists that the controlling
doctrines are those enunciated in Salazar vs.
Mathay, 12 where this Court held that there are
two instances when a position may be considered
primarily confidential, to wit: (a) when the
President, upon recommendation of the
Commissioner of Civil Service (now Civil Service
Commission) has declared a position to be
primarily confidential; and (2) in the absence of
such declaration, when by the very nature of the
functions of the office, there exists close intimacy
between the appointee and the appointing power
which insures freedom of intercourse without
embarrassment or freedom from misgiving or
betrayals of personal trust or confidential matters
of state and Piñero vs. Hechanova, 13 where this
Court ruled that at least, since the enactment of
the 1959 Civil Service Act (R.A. No. 2260), it is the
nature of the position that finally determines
whether a position is primarily confidential, policy
determining, or highly technical and that
executive pronouncements can be no more than
initial determinations that are not conclusive in
case of conflict, which 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 of the
Constitution."
In his Rejoinder filed on 16 December 1986, the
Solicitor General states that the rulings in the
Salazar and Piñero cases have been modified and
superseded by Section 6 of P.D. No. 807, and by
the third paragraph of Section 1 of P.D. No. 868,
which provides:
Any provision of law authorizing any official, other
than the President, to declare positions policy-
determining, primarily confidential or highly
technical which are exempt from the Civil Service
Law and rules is hereby repealed, and only the
President may declare a position-determining,
highly technical or primarily confidential, upon
recommendation of the Civil Service Commission,
the Budget Commission and the Presidential
Reorganization Commission.
The Solicitor General further asseverates that the
Commissions' giving due course to the complaint
of Sangalang is manifestly valid and legal for it is
also in accordance with the declared policies of
the State provided for in Section 2 of P.D. No. 807.
In the Resolution of 9 February 1987, this Court
gave due course to the petition and required the
parties to submit simultaneous memoranda.
We shall take up the issues in the order they are
presented above.
1. The first issue becomes important because if
the questioned position is primarily confidential,
Section 49 of P.D. No. 807 on nepotism would not
apply in the instant case. Interestingly, however,
petitioner did not raise it in the letter to the
Chairman of the Civil Service Commission dated
18 January 1983. 14
On the contrary, he submits, or otherwise admits
therein, that said position is not primarily
confidential for it belongs to the career service.
He even emphasized this fact with an air of
absolute certainty, thus:
At this juncture, may I emphasize that what is
prohibited under Sec. 49 of P.D. 807 is the
appointment of a relative to a career Civil Service
position, LIKE THAT OF PROVINCIAL
ADMINISTRATOR . . . (capitalization supplied for
emphasis).
The sole ground invoked by him for exemption
from the rule on nepotism is, as above indicated:
the rule does not apply to designation — only to
appointment. He changed his mind only after the
public respondent, in its Resolution No. 83-358,
ruled that the "prohibitive mantle on nepotism
would include designation, because what cannot
be done directly cannot be done indirectly" and,
more specifically, only when he filed his motion to
reconsider said resolution. Strictly speaking,
estoppel has bound petitioner to his prior
admission. Per Article 1431 of the Civil Code,
through estoppel an admission or representation
is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the
person relying thereon. 15
But even if estoppel were not to operate against
him, or regardless thereof, his claim that the
position of Provincial Administrator is primarily
confidential, is without merit.
As correctly maintained by the public respondent
and the Solicitor General, the position of
Provincial Administrator is embraced within the
Career Service under Section 5 of P.D. No. 807 as
evidenced by the qualifications prescribed for it in
the Manual of Position Descriptions, 16 to wit:
Education : Bachelor's degree preferably in
Law/Public or Business Administration.
Experience : Six years of progressively
responsible experience in planning, directing and
administration of provincial government
operations. Experience in private agencies
considered are those that have been more or less
familiar level of administrative proficiency.
Eligibility : RA 1080 (BAR)/Personnel Management
Officer/Career Service (Professional)/First
Grade/Supervisor).
It may be added that the definition of its functions
and its distinguishing characteristics as laid down
in the Manual, thus:
xxx xxx xxx
2. DEFINITION:
Under the direction of the Provincial Governor,
responsible for the overall coordination of the
activities of the various national and local
agencies in the province; and general planning,
direction and control of the personnel functions
and the administrative services of the Governor's
Office.
3. DISTINGUISHING CHARACTERISTICS:
This is the class for top professional level
management, administrative and organizational
work in the operation of provincial government
with highly complex, involved relationships with
considerable delegation of authority and
responsibility and a high degree of public contact.
render indisputable the above conclusion that the
subject position is in the career service which, per
Section 5 of P.D. No. 807, is characterized by (a)
entrance based on merit and fitness to be
determined as far as practicable by competitive
examinations, or based on highly technical
qualifications, (b) opportunity for advancement to
higher career positions, and (c) security of tenure.
More specifically, it is an open career position, for
appointment to it requires prior qualification in an
appropriate examination. 17 It falls within the
second major level of positions in the career
service, per Section 7 of P.D. No. 807, which
reads:
Sec. 7. Classes of Positions in the Career Service.
— (a) Classes of positions in the career service
appointment to which requires examinations shall
be grouped into three major levels as follows:
xxx xxx xxx
(2) 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; . . .
In Piñero, et al. vs. Hechanova, et al., 18 this
Court had the occasion to rule that:
It is plain that, at least since the enactment of the
1959 Civil Service Act (R.A. 2260), it is the nature
of the position which finally determines whether a
position is primarily confidential, policy
determining or highly technical. Executive
pronouncements can be no more than initial
determinations that are not conclusive in case of
conflict. And 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 19 of the
Constitution.
This rule stands despite the third paragraph of
Section 1 of P.D. No. 868 which pertinently reads:
. . . and only the President may declare a position
policy-determining, highly technical or primarily
confidential, upon recommendation of the Civil
Service Commission, the Budget Commission and
the Presidential Reorganization Commission.
for the reason that the latter may be considered
merely as the initial determination of the
Executive, which in no case forecloses judicial
review. A rule that exclusively vests upon the
Executive the power to declare what position may
be considered policy-determining, primarily
confidential, or highly technical would subvert the
provision on the civil service under the 1973
Constitution which was then in force at the time
the decree was promulgated. Specifically, Section
2 of Article XII of said Constitution makes
reference to positions which are policy-
determining, primarily confidential, or highly
technical in nature," thereby leaving no room for
doubt that, indeed, it is the nature of the position
which finally determines whether it falls within the
above mentioned classification. The 1987
Constitution retains this rule when in Section 2 of
Article IX-C, it clearly makes reference to
"positions which are policy-determining, primarily
confidential, or highly technical."
In the light of the foregoing, We cannot accept the
view of the Solicitor General in his Rejoinder 20
that Salazar vs. Mathay 21 and Piñero, et al. vs.
Hechanova, et al., 22 have already been modified
by Section 6 of P.D. No. 807 and the third
paragraph of Section 1 of P.D. No. 868.
Not being primarily confidential, appointment
thereto must, inter alia, be subject to the rule on
nepotism.
We likewise agree with the public respondent that
there is one further obstacle to the occupation by
Benjamin Laurel of the position of Provincial
Administrator. At the time he was designated as
Acting Provincial Administrator, he was holding
the position of Senior Executive Assistant in the
Office of the Governor, a primarily confidential
position. He was thereafter promoted as Civil
Security Officer, also a primarily confidential
position. Both positions belong to the non-career
service under Section 6 of P.D. No. 807. As
correctly ruled by the public respondent,
petitioner cannot legally and validly designate
Benjamin Laurel as Acting Provincial
Administrator, a career position, because Section
24(f) of R.A. No. 2260 provides that no person
appointed to a position in the non-competitive
service (now non-career) shall perform the duties
properly belonging to any position in the
competitive service (now career service).
2. Being embraced in the career service, the
position of Provincial Administrator must, as
mandated by Section 25 of P.D. No. 807, be filled
up by permanent or temporary appointment. The
first shall be issued to a person who meets all the
requirements for the position to which he is
appointed, including the appropriate eligibility
prescribed. In the absence of appropriate eligibles
and it becomes necessary in the public interest to
fill a vacancy, a temporary appointment shall be
issued to a person who meets all the
requirements for the position except the
appropriate civil service eligibility, provided,
however, that such temporary appointment shall
not exceed twelve months, but the appointee may
be replaced sooner if a qualified civil service
eligible becomes available. 23
Petitioner could not legally and validly appoint his
brother Benjamin Laurel to said position because
of the prohibition on nepotism under Section 49 of
P.D. No. 807. They are related within the third
degree of consanguinity and the case does not fall
within any of the exemptions provided therein.
Petitioner, however, contends that since what he
extended to his brother is not an appointment,
but a DESIGNATION, he is not covered by the
prohibition. Public respondent disagrees, for:
By legal contemplation, the prohibitive mantle on
nepotism would include designation, because
what cannot be done directly cannot be done
indirectly. 24
We cannot accept petitioner's view. His specious
and tenuous distinction between appointment and
designation is nothing more than either a ploy
ingeniously conceived to circumvent the rigid rule
on nepotism or a last-ditch maneuver to cushion
the impact of its violation. The rule admits of no
distinction between appointment and designation.
Designation is also defined as "an appointment or
assignment to a particular office"; and "to
designate" means "to indicate, select, appoint or
set apart for a purpose or duty. 25
In Borromeo vs. Mariano, 26 this Court said:
. . . All the authorities unite in saying that the
term "appoint" is well-known in law and whether
regarded in its legal or in its ordinary acceptation,
is applied to the nomination or designation of an
individual . . . (emphasis supplied).
In Binamira vs. Garrucho, 27 this Court, per Mr.
Justice Isagani M. Cruz, stated:
Designation may also be loosely defined as an
appointment because it likewise involves the
naming of a particular person to a specified public
office. That is the common understanding of the
term. However, where the person is merely
designated and not appointed, the implication is
that he shall hold the office only in a temporary
capacity and may be replaced at will by the
appointing authority. In this sense, the
designation is considered only an acting or
temporary appointment, which does not confer
security of tenure on the person named.
It seems clear to Us that Section 49 of P.D. No.
807 does not suggest that designation should be
differentiated from appointment. Reading this
section with Section 25 of said decree, career
service positions may be filled up only by
appointment, either permanent or temporary;
hence a designation of a person to fill it up
because it is vacant, is necessarily included in the
term appointment, for it precisely accomplishes
the same purpose. Moreover, if a designation is
not to be deemed included in the term
appointment under Section 49 of P.D. No. 807,
then the prohibition on nepotism would be
meaningless and toothless. Any appointing
authority may circumvent it by merely
designating, and not appointing, a relative within
the prohibited degree to a vacant position in the
career service. Indeed, as correctly stated by
public respondent, "what cannot be done directly
cannot be done indirectly." 28
3. As regards the last issue, We rule that the
letter-complaint of Sangalang was validly given
due course by public respondent. Undoubtedly, as
shown above, there was a violation of law
committed by petitioner in designating his brother
as Acting Provincial Administrator. Any citizen of
the Philippines may bring that matter to the
attention of the Civil Service Commission for
appropriate action conformably with its role as the
central personnel agency to set standards and to
enforce the laws and rules governing the
selection, utilization, training and discipline of civil
servants, 29 with the power and function to
administer and enforce the Constitutional and
statutory provisions on the merit system. 30
Moreover, Section 37 of the decree expressly
allows a private citizen to directly file with the
Civil Service Commission a complaint against a
government official or employee, in which case it
may hear and decide the case or may deputize
any department or agency or official or group of
officials to conduct an 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.
This provision gives teeth to the Constitutional
exhortation that a public office is a public trust
and public officers and employees must at all
times be, inter alia, accountable to the people. 31
An ordinary citizen who brings to the attention of
the appropriate office any act or conduct of a
government official or employee which betrays
the public interest deserves nothing less than the
praises, support and encouragement of society.
The vigilance of the citizenry is vital in a
democracy.
WHEREFORE, this petition is DENIED for lack of
merit, and the challenged Resolutions of the Civil
Service Commission are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Bidin and Romero, JJ.,
concur.
# Footnotes
1 Section 6 of P.D. No. 807. HONORABLE SIMPLICIO C. GRIÑO, SIXTO P.
DEMAISIP, SANTOS B. AGUADERA, MANUEL
2 Annex "C" of Petition.
B. TRAVIÑA and MANUEL M. CASUMPANG,
3 Annexes "B" and "B-1" of Petition. petitioners,
4 Loc cit. vs.
CIVIL SERVICE COMMISSION, TEOTIMO
5 Annex "D" of Petition. ARANDELA, CIRILO GELVEZON, TEODULFO
6 Annex "D" of Petition, 3. DATO-ON, and NELSON GEDUSPAN,
respondents.
7 Annex "B" of Petition.
Sixto P. Demaisip for petitioners.
8 Annex "E" of Petition.
Rex C. Muzones for private respondents.
9 Annex "A" of Petition.
Thelma A. Panganiban-Gaminde, Rogelio C.
10 52 Phil. 1. Limare and Normita M. Llamas-Villanueva for Civil
11 136 SCRA 27, G.R. No. 63915, 24 April 1985. Service Commission.
12 73 SCRA 275.
13 18 SCRA 417. GANCAYCO, J.:p
14 Annex "D" of Petition. The main issue in this petition is whether or not
the position of a provincial attorney and those of
15 See Llacer vs. Muñoz, et al., 12 Phil. 328.
his legal subordinates are primarily confidential in
16 Annex "G" of Petition; Rollo, 55. This was nature so that the services of those holding the
prepared in 1976 and revised in 1977 under a said items can be terminated upon loss of
Joint Program of the Civil Sevice Commission , the confidence.
Provincial Management Project and the USAID
The facts of this case are simple.
Philippine Mission.
Petitioner Sixto Demaisip was the first appointed
17 No. (1) Second paragraph, Section 5, P.D. No.
Provincial Attorney of Iloilo. He held this position
807.
from April 3, 1973 up to June 2, 1986 when he
18 Supra. offered to resign and his resignation was accepted
19 This is Section 4 of Article XII of the 1935 by the then Acting Governor. In his resignation
Constitution which provides: letter, petitioner Demaisip recommended the
elevation of respondent Teotimo Arandela from
No officer or employee in the Civil Service shall be Senior Legal Officer to Provincial Attorney. OIC
removed or suspended except for cause as Governor Licurgo Tirador later on decided to
provided by law. appoint respondent Arandela as the Provincial
20 Rollo, 101. Attorney. Respondent Cirilo Gelvezon, on the
other hand, was promoted from Legal Officer II to
21 Supra. Senior Legal Officer. Respondents Teodolfo Dato-
22 Supra. on and Nelson Geduspan were appointed to the
position of Legal
23 Section 25, P.D. No. 807.
Officer II.
24 Annex "B" of Petition.
On February 2, 1988, petitioner Simplicio Griño
25 Black's Law Dictionary, Fifth ed., 402. assumed office as the newly elected governor of
26 41 Phil. 322, 326-327. Iloilo. One month later, he informed respondent
Arandela and all the legal officers at the Provincial
27 188 SCRA 154, 159. Attorney's Office about his decision to terminate
28 Annex "D" of Petition. their services. In his letter, petitioner Griño made
mention of an article pertaining to the Iloilo office
29 Section 2 (Declaration of Policy), P.D. No. 807. of the Provincial Attorney which appeared in the
30 Section 9(a), P.D. No. 807. Panay News and which "undermined that trust
and confidence" that he reposed on them.
31 Sec. 1, Article XI, 1987 Constitution. See Also
Petitioner Demaisip was reappointed by Governor
Sec. 1 Article XIII, 1973 Contitution.
Griño as the Provincial Attorney, The latter, on the
Republic of the Philippines other hand, arranged the replacements of the
SUPREME COURT other legal officers. Respondent Cirilo Gelvezon
Manila was replaced by petitioner Santos Aguadera,
EN BANC respondent Nelson Geduspan was replaced by
petitioner Manuel Casumpang and petitioner
Manuel Traviña took the place of respondent
G.R. No. 91602 February 26, 1991 Teodolfo Dato-on.
On March 15, 1988, petitioner Governor Griño
formally terminated the services of the
respondents herein on the ground of loss of trust
and confidence. This action taken by the governor
was appealed by respondents to the Merit
Systems Protection Board of the Civil Service
Commission.
On March 9, 1989, the Merit Systems Board
issued an Order declaring the respondents'
termination illegal and ordering that they be
immediately restored to their positions with back
salaries and other emoluments due them. This
was appealed by petitioner Griño to the Civil
Service Commission.
In Resolution No. 89-736 dated October 9, 1989,
the Civil Service Commission affirmed the Order
of the Merit Systems Protection Board, and
directed that the respondents be restored to their
former legal positions and be paid back salaries
and other benefits.
Petitioners filed a Motion for Reconsideration of
the above-mentioned Decision of the Civil Service
Commission. The motion was denied on
December 7, 1989 in Resolution No. 89-920.
Hence, this petition for review whereby
petitioners seek the reversal of Resolution No. 89-
736 of the Civil Service Commission and
Resolution No. 89-920 which denied the Motion
for Reconsideration.
We shall first discuss whether the position of a
provincial attorney is primarily confidential so that
the holder thereof may be terminated upon loss of
confidence.
In Cadiente vs. Santos, 1 this Court ruled that the
position of a city legal officer is undeniably one
which is primarily confidential in this manner:
In resolving the merits of the instant case, We find
as an undeniable fact that the position of a City
Legal Officer is one which is "primarily
confidential." This Court held in the case of
Claudio vs. Subido, L-30865, August 31, 1971, 40
SCRA 481, that the position of a City Legal Officer
is one requiring that utmost confidence on the
part of the mayor be extended to said officer. The
relationship existing between a lawyer and his
client, whether a private individual or a public
officer, is one that depends on the highest degree
of trust that the latter entertains for the counsel
selected. As stated in the case of Pinero vs.
Hechanova, L-22562, October 22, 1966, 18 SCRA
417 (citing De los Santos vs. Mallare, 87 Phil.
289), the phrase "primarily confidential" "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 on
confidential matters of state. (Emphasis supplied.)
The tenure of officials holding primarily
confidential positions ends upon loss of
confidence, because their term of office lasts only
as long as confidence in them endure; and thus
their cessation involves no removal (Corpus vs.
Cuaderno, L-23721, March 31, 1965, 13 SCRA
591-596). When such confidence is lost and the
officer holding such position is separated from the
service, such cessation entails no removal but an
expiration of his term. In the case of Hernandez
vs. Villegas, L-17287, June 30, 1965, 14 SCRA
548, it was held —
It is to be understood of course that officials and
employees holding primarily confidential positions
continue only for so long as confidence in them
endures. The termination of their official relation
can be justified on the ground of loss of
confidence because in that case their cessation
from office involves no removal but merely the
expiration of the term of office — two different
causes for the termination of official relations
recognized in the Law of Public Officers.
In the case at bar, when the respondent City
Mayor of Davao terminated the services of the
petitioner, he was not removed or dismissed.
There being no removal or dismissal it could not,
therefore, be said that there was a violation of the
constitutional provision that "no officer or
employee in the civil service shall be suspended
or dismissed except for cause as provided by law"
(Article XII-B, Section 1 (3), 1973 Constitution).
The matter of expiration of a term of an officer
holding a primarily confidential position, as
distinguished from a removal or dismissal, was
further explained by this Court, in the case of
Ingles vs. Mutuc, L-20390, November 29, 1960, 26
SCRA 171, in this wise:
When an incumbent of a primarily confidential
position holds office at the pleasure of the
appointing power, and the pleasure turns into a
displeasure, the incumbent is not removed or
dismissed from office — his term merely expires,
in much the same way as an officer, whose right
thereto ceases upon expiration of the fixed term
for which he had been appointed or elected, is not
and cannot be deemed removed or dismissed
therefrom, upon expiration of said term.
The main difference between the former — the
primary confidential officer — and the latter is
that the latter's term is fixed or definite, whereas
that of the former is not pre-fixed, but indefinite,
at the time of his appointment or election, and
becomes fixed and determined when the
appointing power expresses its decision to put an
end to the services of the incumbent. When this
event takes place, the latter is not removed or
dismissed from office — his term merely expired.
The foregoing merely elaborates what this Court,
speaking thru Justice J.B.L. Reyes, stressed in the
case Corpus vs. Cuaderno, L-23721, March 31, counterpart in the province a provincial attorney
1965, 13 SCRA 591. In said case We stated that: appointed by the provincial governor. In the same
vein, a municipality may have a municipal
The tenure of officials holding primarily
attorney who is to be named by the appointing
confidential positions ends upon loss of
power. The positions of city legal officer and
confidence, because their term of office lasts only
provincial attorney were created under Republic
as long as confidence in them endures, and thus
Act No. 5185 which categorized them together as
their cessation involves no removal. 2
positions of "trust", to wit:
In Besa vs. Philippine National Bank, 3 where
Sec. 19. Creation of positions of Provincial
petitioner, who was the Chief Legal Counsel with
Attorney and City Legal officer. — To enable the
the rank of Vice President of the respondent
provincial and city governments to avail
Philippine National Bank, questioned his being
themselves of the full time and trusted services of
transferred to the position of Consultant on Legal
legal officers, the positions of provincial attorney
Matters in the Office of President, this Court,
and city legal officer may be created and such
considering said position to be primarily
officials shall be appointed in such manner as is
confidential held —
provided for under Section four of this Act. For
It cannot be denied of course that the work of the this purpose the functions hitherto performed by
Chief Legal Counsel of respondent Bank, as of any the provincial and city fiscals in serving as legal
lawyer for that matter, is impressed with a highly adviser and legal officer for civil cases of the
technical aspect. As had been pointed out, province and city shall be transferred to the
however, it does not mean that thereby a client is provincial attorney and city legal officer,
precluded from substituting in his stead another respectively. (Emphasis supplied.) 4
practitioner. That is his right; Ms decision to
By virtue of Republic Act No. 5185, both the
terminate the relationship once made is
provincial attorney and city legal officer serve as
impressed with the attribute of finality. The
the legal adviser and legal officer for the civil
lawyer cannot be heard to complain; it is enough
cases of the province and the city that they work
that his right to compensation earned be duly
for. Their services are precisely categorized by
respected.
law to be "trusted services."
In that sense, it is equally clear that where the
A comparison of the functions, powers and duties
position partakes of the attributes of being both
of a city legal officer as provided in the Local
technical and confidential, there can be no
Government Code with those of the provincial
insistence of a fixed or a definite term if the latter
attorney of Iloilo would reveal the close similarity
aspect predominates. To paraphrase the language
of the two positions. Said functions clearly reflect
of the Chief Justice in the opinion previously cited,
the highly confidential nature of the two offices
the incumbent of a primarily confidential position,
and the need for a relationship based on trust
as was the case of petitioner, should realize that
between the officer and the head of the local
at any time the appointing power may decide that
government unit he serves. The "trusted services"
his services are no longer needed. As thus
to be rendered by the officer would mean such
correctly viewed, Corpus v. Cuaderno cannot be
trusted services of a lawyer to his client which is
read as lending support to petitioner's efforts to
of the highest degree of trust. 5
retain his position as Chief Legal Counsel of
respondent Bank, contrary to its wishes as so The fact that the position of respondent Arandela
explicitly declared in its Resolution No. 1053. as provincial attorney has already been classified
as one under the career service and certified as
The question now is — should the ruling in
permanent by the Civil Service Commission
Cadiente be made applicable to a provincial
cannot conceal or alter its highly confidential
attorney? According to the petitioners, Cadiente
nature. As in Cadiente where the position of the
must be applied because by the nature of the
city legal officer was duly attested as permanent
functions of a provincial attorney and a city legal
by the Civil Service Commission before this Court
officer, their positions are both primarily
declared that the same was primarily confidential,
confidential. Respondents, on the other hand,
this Court holds that the position of respondent
maintain that since the Civil Service Commission
Arandela as the provincial attorney of Iloilo is also
has already classified the position of private
a primarily confidential position. To rule otherwise
respondent Arandela as a career position and
would be tantamount to classifying two positions
certified the same as permanent, he is removable
with the same nature and functions in two
only for cause, and therefore Cadiente is not
incompatible categories. This being the case, and
applicable.
following the principle that the tenure of an
We agree with the petitioners and answer the official holding a primarily confidential position
question earlier propounded in the affirmative. A ends upon loss of confidence, 6 the Court finds
city legal officer appointed by a city mayor to that private respondent Arandela was not
work for and in behalf of the city has for its dismissed or removed from office when his
services were terminated. His term merely
expired.
The attorney-client relationship is strictly personal
because it involves mutual trust and confidence of
the highest degree, irrespective of whether the
client is a private person or a government
functionary. 7 The personal character of the
relationship prohibits its delegation in favor of
another attorney without the client's consent. 8
However, the legal work involved, as
distinguished from the relationship, can be
delegated. 9 The practice of delegating work of a
counsel to his subordinates is apparent in the
Office of the Provincial Attorney wherein it can be
gleaned from the power granted to such officer to
exercise administrative supervision and control
over the acts and decision of his subordinates. 10
It is therefore possible to distinguish positions in
the civil service where lawyers act as counsel in
confidential and non-confidential positions by
simply looking at the proximity of the position in
question in relation to that of the appointing
authority. Occupants of such positions would be
considered confidential employees if the
predominant reason they were chosen by the
appointing authority is the latter's belief that he
can share a close intimate relationship with the
occupant which measures freedom of discussion,
without fear of embarrassment or misgivings of
possible betrayal of personal trust on confidential
matters of state. 11
This implies that positions in the civil service of
such nature would be limited to those not
separated from the position of the appointing
authority by an intervening public officer, or
series of public officers, in the bureaucratic
hierarchy. This is an additional reason why the
positions of "City Legal Officer" and "Private
Secretary to the President" were considered
primarily confidential by the Court. 12 On the other
hand, a customs policeman serving in the Harbor
Patrol, in relation to the Commissioner of
Customs, and an executive assistant,
stenographer, or clerk in the Office of the
President, were not considered so by the Court. 13
There is no need to extend the professional
relationship to the legal staff which assists the
confidential employer above described. Since the
positions occupied by these subordinates are
remote from that of the appointing authority, the
element of trust between them is no longer
predominant. The importance of these
subordinates to the appointing authority now lies
in the contribution of their legal skills to facilitate
the work of the confidential employee. At this
level of the bureaucracy, any impairment of the
appointing authority's interest as a client, which
may be caused through the breach of residual
trust by any of these lower-ranked lawyers, can
be anticipated and prevented by the confidential
employee, as a reasonably competent office head,
through the exercise of his power to "review,
approve, reverse, or modify" their acts and
decisions. 14 At this level, the client can be
protected without need of imposing upon the
lower-ranked lawyers the fiduciary duties inherent
in the attorney-client relationship. Hence, there is
now no obstacle to giving full effect to the
security of tenure principle to these members of
the civil service.
Thus, with respect to the legal assistants or
subordinates of the provincial attorney namely,
Cirilo Gelvezon, Teodolfo Dato-on and Nelson
Geduspan, the Cadiente and Besa rulings cannot
apply. To recall, said cases specifically dealt with
the positions of city legal officer of the city and
chief legal counsel of the PNB. There was no
reference to their legal staff or subordinates. As
head of their respective departments, the city
legal officer, the provincial attorney or the PNB
chief legal counsel cannot be likened to their
subordinates. The latter have been employed due
to their technical qualifications. Their positions
are highly technical in character and not
confidential, so they are permanent employees,
and they belong to the category of classified
employees under the Civil Service Law. Thus, the
items of Senior Legal Officer and Legal Officer II
remain permanent as classified by the Civil
Service Commission. Consequently, the holders of
the said items, being permanent employees,
enjoy security of tenure as guaranteed under the
Constitution.
This notwithstanding, petitioners contend that
respondents are estopped from protesting the
termination of their services because of their
actions which, if taken together, would allegedly
reveal that they have accepted their termination,
such as: applying for clearances, not remaining in
office and signing their payroll for March 15, 1988
acknowledging therein that their appointment
"terminated/expired."
We cannot agree with petitioners in this regard.
The respondents did the above-mentioned acts
because their services were actually dispensed
with by petitioner Governor Griño. As a
consequence of their termination, they could not
remain in office and as required of any
government employee who is separated from the
government service, they had to apply for
clearances. However, this did not mean that they
believed in principle that they were validly
terminated. The same should not prevent them
from later on questioning the validity of said
termination.
The facts clearly show that respondents protested
their termination with the Civil Service
Commission within a month from the time of their
termination. The Court holds that the said protest
was filed within a reasonable period of time.
WHEREFORE, and in view of the foregoing, the
petition is GRANTED with respect to the position
of provincial attorney of Iloilo. Respondent
Teotimo Arandela is hereby ordered to vacate
said position upon the finality of this Decision. The
Decision of the respondent Civil Service
Commission pertaining to respondents Cirilo
Gelvezon, Teodolfo Dato-on and Nelson Geduspan
is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz,
Paras, Feliciano, Bidin, Medialdea and Regalado,
JJ., concur.
Gutierrez, Jr., J., concurs in the result.
Griño-Aquino and Davide, Jr., JJ., took no part.
Separate Opinions
PADILLA, J., concurring and dissenting:
I concur with the majority opinion in its
classification of the positions of legal assistants or
subordinates of the Provincial Attorney as highly
technical in character, falling under the category
of permanent employees, with security of tenure
under the civil service system. I dissent, however,
from the majority opinion in its treatment of the
position of Provincial Attorney, for the following
reasons:
The position of Provincial Attorney was created
under Sec. 19 of RA 5185 to enable the provincial
government to avail of the legal advice and
services of its own counsel in civil cases affecting
the province. Although the power to appoint the
Provincial Attorney is vested in the Governor,
however, the said local public officer is an
employee of the provincial government to which
he owes his loyalty, and not to the elected
Governor, for he is not part of the latter's personal
or confidential staff. As a provincial public officer,
the Provincial Attorney's suspension, removal or
transfer is subject to the provisions of the civil
service law, rules and regulations. In other words,
he may not be removed or suspended except for
cause provided by law. More specifically, he may
be removed from office for incompetence,
dishonesty, or other misconduct but not for the
Governor's loss of confidence in him, which by its
very nature, can be as broad as anything
imaginable.
In its resolution, the Civil Service Commission has
classified the position of Provincial Attorney as a
career service position and a permanent one. It is
but proper that a career position be developed for
the Provincial Attorney to minimize the "spoils
system", whereby everytime a new Governor is
elected, he can appoint his own man by
terminating the services of the one holding the
position, regardless of his competence and
performance, on the basis (in reality, pretext) of
an alleged "loss of confidence", leaving the
appointees to said position at the mercy of the
Governor's whims and caprices. To clothe the
Governor with an unlimited or blanket authority to
dismiss the Provincial Attorney on the ground of
such generality as "loss of confidence" only
aggravates the problem which has for too long
plagued this country and that is the undue
dominance of partisan politics in the appointment
and retention of government officers and/or
employees. Such practice only hinders the growth
of trained-career personnel in the government
service resulting in the demoralization of those
officers and/or employees who would prefer to
stake their fate in the government service on the
basis of merit.
The Office of Provincial Attorney is composed of a
Provincial Attorney, one (1) Senior Legal Officer,
five (5) Legal Officers and its administrative staff.
Private respondent Teotimo Arandela rose from
the ranks, wherein he started as Legal Officer III,
to Senior Legal Officer and finally to Provincial
Attorney, under the terms of three (3) Governors,
before Gov. Griño was elected to office. 1 To
unceremoniously terminate private respondent
Arandela, who has risen from the ranks and who
has been in government service for many years,
at the pleasure or fancy of an incumbent
Governor, is, to my mind, contrary to the
constitutional provision that "no officer or
employee of the civil service shall be removed or
suspended except for cause provided by law."
Abuse of power in the termination and/or
suspension of an appointee to the position of
Provincial Attorney or of a similar position on the
basis of "loss of confidence" which is not duly
substantiated should not be allowed. The reason
stated by the Governor for his alleged loss of trust
and confidence in private respondent was that
" . . . an article pertaining to your office which
appeared yesterday in Panay News undermined
that trust and confidence which should otherwise
prevail." Whatever the content of said article
which allegedly triggered the loss of confidence
on the part of the Governor in the private
respondent was not specifically stated in his letter
dated 1 March 1988 dispensing with the services
of the private respondent. 2 The reason given by
the Governor in terminating private respondent's
services does not only appear unsubstantiated
but is vague and uncertain.
The presence of Cadiente vs. Santos, 142 SCRA
280 (1980), upon which the majority opinion relies
in support of its thesis that the Provincial Attorney
may be terminated at any time by the Provincial
Governor upon loss of confidence, should be the
last thing to bother one in attempting to establish
a wholesome doctrine in the law of public officers.
ACCORDINGLY, I vote to DISMISS the Petition and
to AFFIRM the questioned Civil Service
Commission rulings in favor of private
respondents.
SARMIENTO, J., concurring & dissenting:
I concur with the first part of the ponencia holding
that the position of a provincial attorney
appointed by the provincial governor being akin
to that of a city legal officer appointed by the city
mayor, is primarily confidential and hence, the
termination from office of the provincial attorney
follows as a consequence of the loss of confidence
upon him by the provincial governor.
However, I can not agree with the second part of
the decision when it refused to apply the same
aforementioned ruling to the case of legal
assistants or subordinate lawyers on the
justification that the earlier cases of Cadiente and
Besa only specifically dealt with the positions of
city legal officer and PNB chief legal counsel,
respectively, and that the positions of legal
assistants or subordinate lawyers are highly
technical in character and not confidential.
While it is true that Cadiente and Besa only
involved a city legal officer and the PNB chief
legal counsel, the same cases do not by any
means preclude the application of the said
precedents to legal assistants or subordinate
lawyers in appropriate cases when such issue is
squarely raised as presently.
Anent the claim that the positions of assistant
legal officers or subordinate lawyers is highly
technical and not confidential, this contention is
not supported by any evidence on record or any
basis in law. On the contrary, the function of an
assistant or a subordinate legal officer, as can be
gleaned from the Local Government Code, is to
"assist the chief officer and perform such duties
as the latter may assign him." I can not see how
such a function can be any less confidential than
that of the chief legal officer.
Absent any showing of substantial distinctions
between the nature of the work or function of the
provincial attorney and that of the legal assistants
or subordinate lawyers, it is logical to presume
that both public officers handle confidential
matters relating to the legal aspect of provincial
administration and that their relationship with
their appointing power is that of a lawyer and his
client requiring utmost confidence and the highest
degree of trust. Hence, both positions being
primarily confidential, the termination from office
of the legal assistants or subordinate lawyers
must likewise follow as a consequence of the loss
of confidence upon them by the provincial
governor.
Separate Opinions
PADILLA, J., concurring and dissenting:
I concur with the majority opinion in its
classification of the positions of legal assistants or
subordinates of the Provincial Attorney as highly
technical in character, falling under the category
of permanent employees, with security of tenure
under the civil service system. I dissent, however,
from the majority opinion in its treatment of the
position of Provincial Attorney, for the following
reasons:
The position of Provincial Attorney was created
under Sec. 19 of RA 5185 to enable the provincial
government to avail of the legal advice and
services of its own counsel in civil cases affecting
the province. Although the power to appoint the
Provincial Attorney is vested in the Governor,
however, the said local public officer is an
employee of the provincial government to which
he owes his loyalty, and not to the elected
Governor, for he is not part of the latter's personal
or confidential staff. As a provincial public officer,
the Provincial Attorney's suspension, removal or
transfer is subject to the provisions of the civil
service law, rules and regulations. In other words,
he may not be removed or suspended except for
cause provided by law. More specifically, he may
be removed from office for incompetence,
dishonesty, or other misconduct but not for the
Governor's loss of confidence in him, which by its
very nature, can be as broad as anything
imaginable.
In its resolution, the Civil Service Commission has
classified the position of Provincial Attorney as a
career service position and a permanent one. It is
but proper that a career position be developed for
the Provincial Attorney to minimize the "spoils
system", whereby everytime a new Governor is
elected, he can appoint his own man by
terminating the services of the one holding the
position, regardless of his competence and
performance, on the basis (in reality, pretext) of
an alleged "loss of confidence", leaving the
appointees to said position at the mercy of the
Governor's whims and caprices. To clothe the
Governor with an unlimited or blanket authority to
dismiss the Provincial Attorney on the ground of
such generality as "loss of confidence" only
aggravates the problem which has for too long
plagued this country and that is the undue
dominance of partisan politics in the appointment
and retention of government officers and/or
employees. Such practice only hinders the growth
of trained-career personnel in the government
service resulting in the demoralization of those
officers and/or employees who would prefer to
stake their fate in the government service on the
basis of merit.
The Office of Provincial Attorney is composed of a
Provincial Attorney, one (1) Senior Legal Officer,
five (5) Legal Officers and its administrative staff.
Private respondent Teotimo Arandela rose from
the ranks, wherein he started as Legal Officer III,
to Senior Legal Officer and finally to Provincial
Attorney, under the terms of three (3) Governors,
before Gov. Griño was elected to
office. 1 To unceremoniously terminate private
respondent Arandela, who has risen from the
ranks and who has been in government service
for many years, at the pleasure or fancy of an
incumbent Governor, is, to my mind, contrary to
the constitutional provision that "no officer or
employee of the civil service shall be removed or
suspended except for cause provided by law."
Abuse of power in the termination and/or
suspension of an appointee to the position of
Provincial Attorney or of a similar position on the
basis of "loss of confidence" which is not duly
substantiated should not be allowed. The reason
stated by the Governor for his alleged loss of trust
and confidence in private respondent was that
" . . . an article pertaining to your office which
appeared yesterday in Panay News undermined
that trust and confidence which should otherwise
prevail." Whatever the content of said article
which allegedly triggered the loss of confidence
on the part of the Governor in the private
respondent was not specifically stated in his letter
dated 1 March 1988 dispensing with the services
of the private respondent. 2 The reason given by
the Governor in terminating private respondent's
services does not only appear unsubstantiated
but is vague and uncertain.
The presence of Cadiente vs. Santos, 142 SCRA
280 (1980), upon which the majority opinion relies
in support of its thesis that the Provincial Attorney
may be terminated at any time by the Provincial
Governor upon loss of confidence, should be the
last thing to bother one in attempting to establish
a wholesome doctrine in the law of public officers.
ACCORDINGLY, I vote to DISMISS the Petition and
to AFFIRM the questioned Civil Service
Commission rulings in favor of private
respondents.
SARMIENTO, J., concurring & dissenting:
I concur with the first part of the ponencia holding
that the position of a provincial attorney
appointed by the provincial governor being akin
to that of a city legal officer appointed by the city
mayor, is primarily confidential and hence, the
termination from office of the provincial attorney
follows as a consequence of the loss of confidence
upon him by the provincial governor.
However, I can not agree with the second part of
the decision when it refused to apply the same
aforementioned ruling to the case of legal
assistants or subordinate lawyers on the
justification that the earlier cases of Cadiente and
Besa only specifically dealt with the positions of
city legal officer and PNB chief legal counsel,
respectively, and that the positions of legal
assistants or subordinate lawyers are highly
technical in character and not confidential.
While it is true that Cadiente and Besa only
involved a city legal officer and the PNB chief
legal counsel, the same cases do not by any
means preclude the application of the said
precedents to legal assistants or subordinate
lawyers in appropriate cases when such issue is
squarely raised as presently.
Anent the claim that the positions of assistant
legal officers or subordinate lawyers is highly
technical and not confidential, this contention is
not supported by any evidence on record or any
basis in law. On the contrary, the function of an
assistant or a subordinate legal officer, as can be
gleaned from the Local Government Code, is to
"assist the chief officer and perform such duties
as the latter may assign him." I can not see how
such a function can be any less confidential than
that of the chief legal officer.
Absent any showing of substantial distinctions
between the nature of the work or function of the
provincial attorney and that of the legal assistants
or subordinate lawyers, it is logical to presume
that both public officers handle confidential
matters relating to the legal aspect of provincial
administration and that their relationship with
their appointing power is that of a lawyer and his
client requiring utmost confidence and the highest
degree of trust. Hence, both positions being
primarily confidential, the termination from office
of the legal assistants or subordinate lawyers
must likewise follow as a consequence of the loss
of confidence upon them by the provincial
governor.
Footnotes
1 142 SCRA 280, (1986).
2 Supra, pages 284 to 286.
3 33 SCRA 330, 337.
4 Section 19, Republic Act No. 5185.
5 Cadiente vs. Santos, supra.
6 Corpus vs. Cuaderno, Sr., 13 SCRA 591 (1965).
7 In Re Sycip, 92 SCRA 10 (1979) and Claudio vs.
Subido, 40 SCRA 481 (1971).
8 Menzi & Company vs. Bastida, 63 Phil. 16
(1936).
9 In Ke Kaeunerer, 178 S.W. 2d 481 (1944).
10 Section 38(c), Chapter 7, Book 4, Revised
Administrative Code of 1987.
11 Cadiente vs. Santos, supra; Besa vs. PNB,
supra.
12 Cadiente vs. Santos, supra; Claudia supra;
Ingles vs. Mutuc, 26 SCRA 171 (1968).
13 Pinero vs. Hechanova, 18 SCRA 417, 423-424
(1966); Ingles vs. Mutuc, supra.
14 Revised Administrative Code.
PADILLA, J., concurring & dissenting:
1 Rollo, p. 103.
2 Rollo, p. 13.
EN BANC
[G.R. No. 123708. June 19, 1997]
CIVIL SERVICE COMMISSION and PHILIPPINE
AMUSEMENT AND GAMING CORPORATION,
petitioners, vs. RAFAEL M. SALAS, respondent.
DECISION
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.
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.
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, 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 Griño, et al. vs. Civil
Service Commission, et al.. 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 the Philippine Amusement
and Gaming Corporation vs. Court of Appeals, et
al., The Supreme Court has classified PAGCOR
employees as confidential appointees;
(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.
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 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.
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. 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.
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 Piñero, et al. vs.
Hechanova, et al., 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 x x x 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 Tañada, 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 policy-determining 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, x x x who is going
to determine whether it is primarily confidential?'
Senator Tañada replied:
'SENATOR TAÑADA: 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" (Italics 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 explicitly 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. 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 Piñero 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.
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 the 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 Piñero 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,
Book 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.
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 policy-determining 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 policy-determining, 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 it 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 policy-determining
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" (Italics
supplied).
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 is
primarily confidential if at all, merely exempts the
position from the civil service eligibility
requirement." Accordingly, the Piñero 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., 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 ensures freedom of intercourse without
embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters
of state. x x x" (Emphasis supplied).
This was reiterated in Piñero, 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 closed 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". (Stress 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.
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.
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 ensure
"freedom from misgivings of betrayals of personal
trust."
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 members 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 respondents'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.
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 her to damages under the Civil
Code." (Italics 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.
WHEREFORE, the impugned judgment of
respondent Court of Appeals is hereby AFFIRMED
in toto.
SO ORDERED.
Narvasa, C.J., Padilla, Davide, Jr., Romero, Melo,
Puno, Kapunan, Mendoza, Hermosisima, Jr.,
Panganiban and Torres, Jr., JJ., concur.
Bellosillo, and Francisco, JJ., on leave.
Vitug, J., see separate opinion.
Penned by Associate Justice Delilah Vidallon-
Magtolis, with Associate Justices Gloria C. Paras
and Quirino D. Abad Santos, Jr., concurring: Annex
A, Petition, Rollo, 26.
Original Record, 22.
Ibid., 148.
G.R. No. 91602. February 26, 1991. 194 SCRA
548.
G.R. No. 93396, September 30, 1991, 202 SCRA
191.
Infra, fn. 20.
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."
Sec. 12. Powers and functions. — The Commission
shall have the following powers and functions:
xxx
(9) Declare positions in the Civil Service as may
be primarily confidential, highly technical or
policy-determining; x x x
Salazar vs. Mathay, Sr., et al., L-44061,
September 20, 1976, 73 SCRA 275.
L-22562, October 22, 1966, 18 SCRA 417.
"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).
Approved, October 6, 1975.
Executive Order No. 292 took effect on November
23, 1989 pursuant to Proclamation No. 495 of the
Office of the President of even date.
"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
and functions: x x x 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).
Record of the Constitutional Commission, Vol. I,
571-572.
87 Phil. 289 (1950).
Griño, et al. vs. Civil Service Commission, et al.,
supra., fn. 4.
Petition, 12-13, Rollo, 19-20.
Borres, et al. vs. Court of Appeals, et al., L-36845,
August 21, 1987, 153 SCRA 120.
Tria vs. Sto. Tomas, et al., G.R. No. 85670 July 31,
1991, 199 SCRA 833.
Pamil vs. Teleron, L-34854, November 20, 1978,
86 SCRA 413.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR
M. ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner
as a "taxpayer," questioning the appointment of
respondent Gabriel Singson as Governor of the
Bangko Sentral Ng Pilipinas for not having been
confirmed by the Commission on Appointments.
The petition seeks to enjoin respondent Singson
from the performance of his functions as such
official until his appointment is confirmed by the
Commission on Appointments and respondent
Salvador M. Enriquez, Secretary of Budget and
Management, from disbursing public funds in
payment of the salaries and emoluments of
respondent Singson.
I
Respondent Singson was appointed Governor of
the Bangko Sentral by President Fidel V. Ramos
on July 2, 1993, effective on July 6, 1993 (Rollo, p.
10).
Petitioner argues that respondent Singson's
appointment is null and void since it was not
submitted for confirmation to the Commission on
Appointments. The petition is anchored on the
provisions of Section 6 of R.A. No. 7653, which
established the Bangko Sentral as the Central
Monetary Authority of the Philippines. Section 6,
Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The
powers and functions of the Bangko Sentral shall
be exercised by the Bangko Sentral Monetary
Board, hereafter referred to as the Monetary
Board, composed of seven (7) members
appointed by the President of the Philippines for a
term of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall
be the Chairman of the Monetary Board. The
Governor of the Bangko Sentral shall be head of a
department and his appointment shall be subject
to confirmation by the Commission on
Appointments. Whenever the Governor is unable
to attend a meeting of the Board, he shall
designate a Deputy Governor to act as his
alternate: Provided, That in such event, the
Monetary Board shall designate one of its
members as acting Chairman . . . (Emphasis
supplied).
In their comment, respondents claim that
Congress exceeded its legislative powers in
requiring the confirmation by the Commission on
Appointments of the appointment of the Governor
of the Bangko Sentral. They contend that an
appointment to the said position is not among the
appointments which have to be confirmed by the
Commission on Appointments, citing Section 16 of
Article VII of the Constitution which provides that:
Sec. 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other
officers of the Government whose appointments
are not otherwise provided for by law, and those
whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment
of other officers lower in rank in the President
alone, in the courts, or in the heads of
department, agencies, commissions, or
boards . . . (Emphasis supplied).
Respondents also aver that the Bangko Sentral
has its own budget and accordingly, its budgetary
requirements are not subject to the provisions of
the General Appropriations Act.
We dismiss the petition.
II
The instant petition is in the nature of a quo
warranto proceeding as it seeks the ouster of
respondent Singson and alleges that the latter is
unlawfully holding or exercising the powers of
Governor of the Bangko Sentral (Cf. Castro v. Del
Rosario, 19 SCRA 196 [1967]). Such a special civil
action can only be commenced by the Solicitor
General or by a "person claiming to be entitled to
a public office or position unlawfully held or
exercised by another" (Revised Rules of Court,
Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637
(1992), we held that the petitioner therein, who
did not aver that he was entitled to the office of
the City Engineer of Cabanatuan City, could not
bring the action for quo warranto to oust the
respondent from said office as a mere usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903),
67 N.E. 910, it was held that the question of title
to an office, which must be resolved in a quo
warranto proceeding, may not be determined in a
suit to restrain the payment of salary to the
person holding such office, brought by someone
who does not claim to be the one entitled to
occupy the said office.
It is obvious that the instant action was
improvidently brought by petitioner. To uphold
the action would encourage every disgruntled
citizen to resort to the courts, thereby causing
incalculable mischief and hindrance to the
efficient operation of the governmental machinery
(See Roosevelt v. Draper, 7 Abb. Pr. 108, 23 N.Y.
218).
Its capstone having been removed, the whole
case of petitioner collapses. Hence, there is no
need to resolve the question of whether the
disbursement of public funds to pay the salaries
and emoluments of respondent Singson can be
enjoined. Likewise, the Court refrains from
passing upon the constitutionality of Section 6,
R.A. No. 7653 in deference to the principle that
bars a judicial inquiry into a constitutional
question unless the resolution thereof is
indispensable for the determination of the case
(Fernandez v. Torres, 215 SCRA 489 [1992]).
However for the information of all concerned, we
call attention to our decision in Calderon v.
Carale, 208 SCRA 254 (1992), with Justice Isagani
A. Cruz dissenting, where we ruled that Congress
cannot by law expand the confirmation powers of
the Commission on Appointments and require
confirmation of appointment of other government
officials not expressly mentioned in the first
sentence of Section 16 of Article VII of the
Constitution.
WHEREFORE, the petition is DENIED. No
pronouncement as to costs.
SO ORDERED.
Feliciano, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Vitug and Kapunan, JJ.,
concur.
Narvasa, C.J. and Cruz, JJ., are on leave.
Separate Opinions
PADILLA, J., concurring:
I concur in the result. Instead, however, of basing
the petition's dismissal mainly on technicality, I
would anchor said dismissal squarely on the ruling
laid down by the Court in Calderon vs. Carale, 208
SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under
the Constitution (Sec. 16, Article VII) are not
among those required to be confirmed by the
Commission on Appointments, may not, by
legislation, be made subject to such confirmation.
This ruling was a reiteration of the doctrine earlier
laid down in Sarmiento vs. Mison, (G.R. No.
79974, 156 SCRA 549, December 17, 1987) and
Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA
160, April 13, 1989).
# Bureau of Customs, in view of respondent Allas'
Separate Opinions
PADILLA, J., concurring:
I concur in the result. Instead, however, of basing
the petition's dismissal mainly on technicality, I
would anchor said dismissal squarely on the ruling
laid down by the Court in Calderon vs. Carale, 208
SCRA 254 (1992), to the effect that appointments
by the President of the Philippines, which under
the Constitution (Sec. 16, Article VII) are not
among those required to be confirmed by the
Commission on Appointments, may not, by
legislation, be made subject to such confirmation.
This ruling was a reiteration of the doctrine earlier
laid down in Sarmiento vs. Mison, (G.R. No.
79974, 156 SCRA 549, December 17, 1987) and
Bautista vs. Salonga, (G.R. No. 86439, 172 SCRA
160, April 13, 1989).
SECOND DIVISION
[G.R. No. 131977. February 4, 1999]
PEDRO MENDOZA, petitioner, vs. RAY ALLAS and
GODOFREDO OLORES, respondents.
DECISION
PUNO, J.:
Before us, petitioner prays for the execution of
the decision of the trial court granting his petition
for quo warranto which ordered his reinstatement
as Director III, Customs Intelligence and
Investigation Service, and the payment of his
back salaries and benefits.
Petitioner Pedro Mendoza joined the Bureau of
Customs in 1972. He held the positions of Port
Security Chief from March 1972 to August 1972,
Deputy Commissioner of Customs from August
1972 to September 1975, Acting Commissioner of
Customs from September 1975 to April 1977 and
Customs Operations Chief I from October 1987 to
February 1988. On March 1, 1988, he was
appointed Customs Service Chief of the Customs
Intelligence and Investigation Service (CIIS). In
1989, the position of Customs Service Chief was
reclassified by the Civil Service as "Director III" in
accordance with Republic Act No. 6758 and
National Compensation Circular No. 50.
Petitioner's position was thus categorized as
"Director III, CIIS" and he discharged the function
and duties of said office.
On April 22, 1993, petitioner was temporarily
designated as Acting District Collector, Collection
District X, Cagayan de Oro City. In his place,
respondent Ray Allas was appointed as "Acting
Director III" of the CIIS. Despite petitioner's new
assignment as Acting District Collector, however,
he continued to receive the salary and benefits of
the position of Director III.
In September 1994, petitioner received a letter
from Deputy Customs Commissioner Cesar Z.
Dario, informing him of his termination from the
appointment as Director III by President Fidel V.
Ramos. The pertinent portion of the letter reads:
"Effective March 4, 1994, Mr. Ray Allas was
appointed Director III by President Fidel V. Ramos
and as a consequence, [petitioner's] services
were terminated without prejudice to [his] claim
for all government benefits due [him]."
Attached to the letter was the appointment of
respondent Ray Allas as "Director III, CIIS, Bureau
of Customs, vice Pedro Mendoza."
Petitioner wrote the Customs Commissioner
demanding his reinstatement with full back wages
and without loss of seniority rights. No reply was
made.
On December 2, 1994, petitioner filed a petition
for quo warranto against respondent Allas before
the Regional Trial Court, Paranaque, Branch 258.
The case was tried and on September 11, 1995, a
decision was rendered granting the petition. The
court found that petitioner was illegally
terminated from office without due process of law
and in violation of his security of tenure, and that
as he was deemed not to have vacated his office,
the appointment of respondent Allas to the same
office was void ab initio. The court ordered the
ouster of respondent Allas from the position of
Director III, and at the same time directed the
reinstatement of petitioner to the same position
with payment of full back salaries and other
benefits appurtenant thereto.
Respondent Allas appealed to the Court of
Appeals. On February 8, 1996, while the case was
pending before said court, respondent Allas was
promoted by President Ramos to the position of
Deputy Commissioner of Customs for Assessment
and Operations. As a consequence of this
promotion, petitioner moved to dismiss
respondent's appeal as having been rendered
moot and academic. The Court of Appeals
granted the motion and dismissed the case
accordingly. The order of dismissal became final
and entry of judgment was made on March 19,
1996.
On May 9, 1996, petitioner filed with the court a
quo a Motion for Execution of its decision. On July
24, 1996, the court denied the motion on the
ground that the contested position vacated by
respondent Allas was now being occupied by
respondent Godofredo Olores who was not a party
to the quo warranto petition.
Petitioner filed a special civil action for certiorari
and mandamus with the Court of Appeals
questioning the order of the trial court. On
November 27, 1997, the Court of Appeals
dismissed the petition. Hence, this recourse.
Petitioner claims that:
"The Court of Appeals grossly erred in holding
that a writ of execution may no longer be issued,
considering that respondent Olores who was not a
party to the case now occupies the subject
position."
The instant petition arose from a special civil
action for quo warranto under Rule 66 of the
Revised Rules of Court. Quo warranto is a
demand made by the state upon some individual
or corporation to show by what right they exercise
some franchise or privilege appertaining to the
state which, according to the Constitution and
laws of the land, they cannot legally exercise
except by virtue of a grant or authority from the
state. In other words, a petition for quo warranto
is a proceeding to determine the right of a person
to the use or exercise of a franchise or office and
to oust the holder from its enjoyment, if his claim
is not well-founded, or if he has forfeited his right
to enjoy the privilege. The action may be
commenced for the Government by the Solicitor
General or the fiscal against individuals who usurp
a public office, against a public officer whose acts
constitute a ground for the forfeiture of his office,
and against an association which acts as a
corporation without being legally incorporated.
The action may also be instituted by an individual
in his own name who claims to be entitled to the
public office or position usurped or unlawfully held
or exercised by another.
Where the action is filed by a private person, he
must prove that he is entitled to the controverted
position, otherwise respondent has a right to the
undisturbed possession of the office. If the court
finds for the respondent, the judgment should
simply state that the respondent is entitled to the
office. If, however, the court finds for the
petitioner and declares the respondent guilty of
usurping, intruding into, or unlawfully holding or
exercising the office, judgment may be rendered
as follows:
"Sec. 10. Judgment where usurpation found.--
When the defendant is found guilty of usurping,
intruding into, or unlawfully holding or exercising
an office, position, right, privilege, or franchise,
judgment shall be rendered that such defendant
be ousted and altogether excluded therefrom, and
that the plaintiff or relator, as the case may be,
recover his costs. Such further judgment may be
rendered determining the respective rights in and
to the office, position, right, privilege, or franchise
of all the parties to the action as justice requires."
If it is found that the respondent or defendant is
usurping or intruding into the office, or unlawfully
holding the same, the court may order:
(1) The ouster and exclusion of the defendant
from office;
(2) The recovery of costs by plaintiff or relator;
(3) The determination of the respective rights in
and to the office, position, right, privilege or
franchise of all the parties to the action as justice
requires.
The character of the judgment to be rendered in
quo warranto rests to some extent in the
discretion of the court and on the relief sought. In
the case at bar, petitioner prayed for the following
relief:
"WHEREFORE, it is respectfully prayed that
respondent be ousted and altogether excluded
from the position of Director III, Customs
Intelligence and Investigation Service of the
Bureau of Customs, and petitioner be seated to
the position as the one legally appointed and
entitled thereto.
Other reliefs, just or equitable in the premises, are
likewise prayed for."
In granting the petition, the trial court ordered
that:
"WHEREFORE, viewed in the light of the foregoing,
judgment is hereby rendered granting this
petition for quo warranto by:
1. Ousting and excluding respondent Ray Allas
from the position of Director III, Customs
Intelligence and Investigation Service of the
Bureau of Customs; and
2. Reinstating petitioner Pedro C. Mendoza, Jr. to
the position of Director III, Customs Intelligence
and Investigation Service of the Bureau of
Customs with full back wages and other monetary
benefits appurtenant thereto from the time they
were withheld until reinstated."
The trial court found that respondent Allas
usurped the position of "Director III, Chief of the
Customs Intelligence and Investigation Service."
Consequently, the court ordered that respondent
Allas be ousted from the contested position and
that petitioner be reinstated in his stead.
Although petitioner did not specifically pray for his
back salaries, the court ordered that he be paid
his "full back wages and other monetary benefits"
appurtenant to the contested position "from the
time they were withheld until reinstated."
The decision of the trial court had long become
final and executory, and petitioner prays for its
execution. He alleges that he should have been
reinstated despite respondent Olores'
appointment because the subject position was
never vacant to begin with. Petitioner's removal
was illegal and he was deemed never to have
vacated his office when respondent Allas was
appointed to the same. Respondent Allas'
appointment was null and void and this nullity
allegedly extends to respondent Olores, his
successor-in-interest.
Ordinarily, a judgment against a public officer in
regard to a public right binds his successor in
office. This rule, however, is not applicable in quo
warranto cases. A judgment in quo warranto does
not bind the respondent's successor in office,
even though such successor may trace his title to
the same source. This follows from the nature of
the writ of quo warranto itself. It is never directed
to an officer as such, but always against the
person-- to determine whether he is
constitutionally and legally authorized to perform
any act in, or exercise any function of the office to
which he lays claim. In the case at bar, the
petition for quo warranto was filed by petitioner
solely against respondent Allas. What was
threshed out before the trial court was the
qualification and right of petitioner to the
contested position as against respondent Ray
Allas, not against Godofredo Olores. The Court of
Appeals did not err in denying execution of the
trial court's decision.
Petitioner has apprised this Court that he reached
the compulsory retirement age of sixty-five (65)
years on November 13, 1997. Reinstatement not
being possible, petitioner now prays for the
payment of his back salaries and other benefits
from the time he was illegally dismissed until
finality of the trial court's decision.
Respondent Allas cannot be held personally liable
for petitioner's back salaries and benefits. He was
merely appointed to the subject position by the
President of the Philippines in the exercise of his
constitutional power as Chief Executive. Neither
can the Bureau of Customs be compelled to pay
the said back salaries and benefits of petitioner.
The Bureau of Customs was not a party to the
petition for quo warranto.
IN VIEW WHEREOF, the petition is denied and
the decision of the Court of Appeals in CA-G.R. SP
No. 41801 is affirmed.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and
Buena, JJ., concur.
Regional Trial Court, Paranaque, Branch 258,
presided by Judge Raul E. de Leon.
Petition, p. 3, Rollo, p. 23.
Civil Case No. 94-3078.
CA Rollo, p. 83.
Rollo, pp. 42-45.
CA-G.R. SP No. 41801.
Quirino Abad Santos, Jr., J., ponente with Ruben
Reyes and Hilarion Aquino, JJ., concurring.
Petition, p. 7, Rollo, p. 27.
Francisco, V., The Revised Rules of Court in the
Philippines, vol. IV-B, Part I, p. 281 [1972] citing
44 Am Jur 88-89; see also Sections 1 to 5, Rule 66,
Revised Rules of Court.
Castro v. del Rosario, 19 SCRA 196, 200 [1967].
Referred to as public prosecutor under the 1997
Rules of Civil Procedure.
Sections 1 to 4, Rule 66, Revised Rules of Court;
see also Sections 1 to 3, Rule 66, 1997 Rules of
Civil Procedure.
Section 6, Rule 66, Revised Rules of Court; see
also Section 5, Rule 66, 1997 Rules.
Castro v. del Rosario, 19 SCRA 196, 201 [1967];
Caraan-Medina v. Quizon, 18 SCRA 562, 569
[1966]; Austria v. Amante, 79 Phil. 780, 783
[1948].
Francisco, supra, at 334.
Martin, Rules of Court in the Philippines, vol. III, p.
268 [1986].
Martin, Rules of Court in the Philippines, vol. III, p.
268 [1986].
Petition, p. 4, Annex "C" to the CA Petition, CA
Rollo, p. 43.
Decision, pp. 14-15, Rollo, pp. 66-67.
Petition, pp. 10-14, Rollo, pp. 29-33.
Francisco, supra, at 339-340, citing 44 Am. Jur
181-182.
Id.
Petition, pp. 14-15, Rollo, pp. 33-34.
Angara v. Gorospe, 101 Phil. 79, 92 [1957].
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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104226 August 12, 1993
CONCHITA ROMUALDEZ-YAP, petitioner,
vs.
THE CIVIL SERVICE COMMISSION and THE
PHILIPPINE NATIONAL BANK, respondents.
Estelito P. Mendoza for petitioner.
The Solicitor General for the Civil Service
Commission.
Domingo A. Santiago, Jr. for Philippine National
Bank.
PADILLA, J.:
This is a special civil action for certiorari under
Rule 65 of the Rules of Court, assailing Resolution
No. 92-201 of the respondent Civil Service
Commission, which upheld the petitioner's
separation from the Philippine National Bank(PNB)
as a result of the abolition of the Fund Transfer
Department pursuant to a reorganization under
Executive Order No. 80, dated 3 December 1986.
Petitioner Conchita Romualdez-Yap started
working with the Philippine National Bank on 20
September 1972 as special assistant with the rank
of Second Assistant Manager assigned to the
office of the PNB President. After several
promotions, she was appointed in 1983 Senior
Vice President assigned to the Fund Transfer
Department.
Starting 1 April 1986 up to 20 February 1987,
petitioner filed several applications for leave of
absence (due to medical reasons) which were
duly approved. While she was on leave, Executive
Order No. 80 (Revised Charter of the PNB) was
approved on 3 December 1986. Said executive
order authorized the restructure/reorganization
and rehabilitation of PNB. Pursuant to the
reorganization plan, the Fund Transfer
Department was abolished and its functions
transferred to the International Department.
Consequently, petitioner was notified of her
separation from the service in a letter dated 30
January 1987, thus:
Pursuant to the Transitory Provision of the 1986
Revised Charter of the Bank, please be informed
that Management has approved your separation
from the service effective February 16, 1986. You
shall be entitled to the regular benefits allowed
under existing law. (emphasis supplied)
Please be informed further that under Sec. 37 of
the Bank's 1986 Revised Charter, any officer or
employee who feels aggrieved by any matter
treated above may submit his case to the Civil
Service
Commission. 1
This letter was received by petitioner's secretary
at the PNB head office on 16 February 1987.
Petitioner's first recorded appeal to the Civil
Service Commission questioning her separation is
a letter dated 4 August 1989. Then CSC Chairman
Samilo N. Barlongay upheld the validity of her
separation from the service in a letter/opinion
dated 30 August 1989 (this was allegedly
received by petitioner only on 26 February 1990)
stating thus:
xxx xxx xxx
It may be mentioned in this connection, that
inasmuch as you did not avail of the
ERIP/Supplementary Retirement Plans adopted by
the PNB in 1986, you have therefore lost your
right thereto. Moreover, since you lack the
required number of years of service to entitle you
to retirement benefits under existing laws, you
may be entitled to the return of your GSIS
personal contributions. Considering further that
you have exhausted all your accumulated leave
credits as you went on leave of absence for the
period from April 1, 1986 to February 20, 1987,
there is no legal or valid basis to entitle you to
payment of terminal leave.
Finally, pursuant to Section 16, Article XVIII of the
Transitory Provisions of the 1987 Philippine
Constitution, you may be entitled to payment of
separation subject to auditing rules and
regulations. 2
In her motion for reconsideration with the Civil
Service Commission, dated 5 March 1990,
questioning Chairman Barlongay's ruling,
petitioner claimed:
1. The opinion/ruling was not fully supported by
the evidence on record;
2. Errors of law prejudicial to the interest of the
movant have been committed. She argued:
. . . that her separation from the service was
illegal and was done in bad faith considering that
her termination on February 16, 1986 was made
effective prior to the effectivity of Executive Order
No. 80 on December 3, 1986, which law
authorized the reorganization of the PNB, and
even before February 25, 1986, when President
Corazon C. Aquino came into power. She further
claims that although the notice of termination was
dated January 30, 1987 it was only served upon
her on February 16, 1987 when the new
Constitution which guarantees security of tenure
to public employees was already in effect. 3
xxx xxx xxx
. . . the bad faith in her separation from the
service in 1987 was evident from the recent
restoration of the Fund Transfer Department as a
separate and distinct unit from the International
Department . . . 4
Denying the motion for reconsideration, the Civil
Service Commission in its aforecited Resolution
No. 92-201, dated 30 January, 1992, ruled:
Sec. 33 of EO 80 (1986 Revised Charter of the
PNB) provides:
Sec. 33. Authority to Reorganize. — In view of
reduced operations contemplated under this
charter in pursuance of the national policy
expressed in the "Whereas" clause hereof, a
reorganization of the Bank and a reduction in
force are hereby authorized to achieve greater
efficiency and economy in operations, including
the adoption of a new staffing pattern to suit the
reduced operations envisioned. The program of
reorganization shall begin immediately after the
approval of this Order, and shall be completed
within six (6) months and shall be fully
implemented within eighteen (18) months
thereafter." Clearly; as aforequoted, PNB was
authorized to undergo reorganization and to
effect a reduction in force to "achieve greater
efficiency and economy in operations". It cannot,
be disputed that reduction in force necessitates,
among others, the abolition of positions/offices.
The records show that prior to its reorganization,
PNB originally had 7,537 positions which were
reduced to 5,405 after the reorganization. Indeed,
2,132 positions were abolished, that is, the
original positions in PNB were reduced by 28%.
This reduction in force likewise included the
senior officer positions, in PNB, which were
reduced, thus:
Positions Incumbents Proposed Position
President 1 1 1
Sr. Exec. VP 1 1 0
Exec. VP 3 2 2
Senior VP 12 11 7
Vice Pres. 33 27 15
The position of movant Yap (SVP) was one among
the original twelve (12) SVP positions. It was one
among the five (5) SVP positions which were
abolished. In fact, the FTD of which she was then
the incumbent SVP, was merged with the
International Department to which its functions
were closedly related.
It should be noted that as ruled by the Supreme
Court in Dario vs. Mison (G.R. NO. 81954):
Reorganizations in this jurisdiction have been
regarded as valid provided they are pursued in
good faith. As a general rule, a reorganization is
carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient.
In that event, no dismissal or separation actually
occurs because the position itself ceases to exist.
And in that case, security of tenure would not be a
Chinese Wall. . . . .
. . . Good faith, as a component of a
reorganization under a constitutional regime is
judged from the facts of each case.
In the instant case, therefore, this Commission is
inclined to believe that the reorganization of PNB
was done in good faith. For indeed, the
reorganization was pursued to achieve economy.
It undertook reduction in force as a means to
streamline the numbers of the workforce. It was
incidental that movant Yap's position was one
among those abolished. Movant Yap failed to
substantiate her claim by clear and convincing
evidence that the abolition of her position was a
result of her close identification with the previous
regime, being a sister of former First Lady Imelda
Romualdez Marcos. This being so, and pursuant to
the presumption of regularity in the performance
of official functions, the abolition of movant Yap's
position should be upheld. PNB, in the instant
case, has clearly proved by substantial evidence
that its act in terminating the services of some of
its employees was done in good faith. 5
Overruling her imputation of bad faith, i.e. her
separation was illegal because it took effect on 16
February 1986 or even before the promulgation of
EO No. 80 on 3 December 1986, the CSC noted
that the year "1986" stated in the notice of her
separation from the service was a typographical
error. PNB submitted documents (p. 6 of
Resolution No. 92-201) supporting its stand that
the separation actually took effect on 16 February
1987.
On the issue of bad faith as related to the later
restoration of the Fund Transfer Department, the
subject CSC resolution adds:
xxx xxx xxx
It may be mentioned that the recent restoration of
the Fund Transfer Department, actually was a
merger of the Fund Transfer Group, the Foreign
Remittance Development and Coordinating Unit
based on board Resolution No. 60 of March 12,
1991, or after the lapse of over four (4) years
from the date it was abolished in 1987. Moreover,
the restoration of the Fund Transfer Department
and other offices in the PNB was primarily caused
by the improved financial capability and present
needs of the Bank. This improved financial
condition of the PNB is evident from the 1990
Annual Report it submitted. It may be further
stated that the re-established FTD is headed by a
Vice President, a position much lower in rank than
the former department headed by a Senior Vice
President.
Furthermore, it should be noted that granting
arguendo that movant Yap's termination from the
service was tainted with bad faith, she however, is
now barred from assailing the same as she did not
seasonably assert her right thereto. Records show
that she was separated from PNB on February 16,
1987 and it was only in 1989 or about 2 years
thereafter when she brought this matter to this
Commission. By her inaction in questioning her
termination within a period of one year, she is
considered to have acquiesced to her separation
from the service and abandoned her right to the
position. 6
In the present petition before the Court, the
following issues are raised:
1. Existence of bad faith in the reorganization of
the Philippine National Bank resulting in the
separation from the service of petitioner.
2. Erroneous application of the Dario v. Mison
doctrine vis-a-vis PNB's reorganization.
3. Erroneous application of the one (1) year
prescriptive period for quo warranto proceedings
in petitioner's case.
Dario v. Mison 7 laid down the requirement of
good faith in the reorganization of a government
bureau wherein offices are abolished. It says:
. . . Reorganizations in this jurisdiction have been
regarded as valid provided they are pursued in
good faith. As a general rule, a reorganization is
carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient.
In that event, no dismissal (in case of dismissal)
or separation actually occurs because the position
itself ceases to exist. And in that case, security of
tenure would not be a Chinese wall. Be that as it
may, if the "abolition," which is nothing else but a
separation or removal, is done for political
reasons or purposely to defeat security of tenure,
or otherwise not in good faith, no valid "abolition"
takes place and whatever "abolition" is done, is
void ab initio. There is an invalid "abolition" as
where there is merely a change of nomenclature
of positions, or where claims of economy are
belied by the existence of ample funds. It is to be
stressed that by predisposing a reorganization to
the yardstick of good faith, we are not, as a
consequence, imposing a "cause" for
restructuring. Retrenchment in the course of a
reorganization in good faith is still removal "not
for cause" if by "cause" we refer to "grounds" or
conditions that call for disciplinary action. Good
faith, as a component of a reorganization under a
constitutional regime, is judged from the facts of
each case.
In Petitioner's case, the following instances are
cited by her as indicia of bad faith:
1. The abolished department was later restored
and the number of senior vice presidents was
increased.
2. PNB did not follow the prescribed sequence of
separation of employees from the service
contained in Rep. Act No. 6656 which is:
Sec. 3. In the separation of personnel pursuant to
reorganization, the following order of removal
shall be followed:
(a) Casual employees with less than five (5) years
of government service;
(b) Casual employees with five (5) years or more
of government service;
(c) Employees holding temporary appointments;
and
(d) Employees holding permanent appointments:
Provided, That those in the same category as
enumerated above, who are least qualified in
terms of performance and merit shall be laid off
first, length of service notwithstanding.
3. Petitioner was not extended preference in
appointment to the positions in the new staffing
pattern as mandated by Sec. 4 of Rep. Act 6656,
her qualification and fitness for new positions
were never evaluated or considered in violation of
Sec. 27 of P.D. 807 which was incorporated as
Sec. 29 Ch. 5 Subtitle A, Book V of the
Administrative Code of 1987.
4. Lack of notice and bearing before separation
from the service.
5. Petitioner was forced to take a leave of
absence and prevented from reporting for work.
6. There is a discrepancy in the date of her
separation from the service and the effectivity
thereof.
7. PNB employees in the Fund Transfer
Department identified with her were reassigned or
frozen.
8. She is listed as having resigned instead of
being separated or dismissed which was what
actually happened.
9. The dismissal was politically motivated, she
being a sister of Mrs. Imelda Romualdez Marcos,
wife of deposed President Ferdinand Marcos.
Executive Order No. 80 conferred upon the PNB
the authority to reorganize. The order was issued
by then Pres. Corazon Aquino on 3 December
1986 while she was exercising the powers vested
in the President of the Philippines by the Freedom
Constitution. After 3 December 1986, what
remained to be done was the implementation of
the reorganization. There is no doubt as to the
legal basis for PNB's reorganization. The real
question is: was it done in good faith, tested by
the Dario v. Mison doctrine?
To start with it is almost absurd for petitioner to
insist that her termination from the service was
antedated to 16 February 1986. At that time, the
reorganization of PNB had not even been
conceived. In most of PNB's pleadings, it has
documented and supported its stand that the year
of petitioner's separation is 1987 not 1986. The
antedating of the termination date, aside from
being clearly a typographical error, is a
periphernal issue. The real issue is existence of
bad faith consisting of tangible
bureaucratic/management pressures exerted to
ease her out of office. Bad faith has been defined
as a state of mind affirmatively operating with
furtive design or with some motive of self interest
or ill will or for an ulterior purpose. 8 It is the
performance of an act with the knowledge that
the actor is violating the fundamental law or right,
even without willful intent to injure or purposive
malice to perpetrate a damnifying harm. 9
PNB's reorganization, to repeat, was by virtue of a
valid law. At the time of reorganization, due to the
critical financial situation of the bank,
departments, positions and functions were
abolished or merged. The abolition of the Fund
Transfer Department (FTD) was deemed
necessary. This, to the Court's mind, was a
management prerogative exercised pursuant to a
business judgment. At this point, a distinction can
be made in ruling on the validity of a
reorganization between a government bureau or
office performing constituent functions (like the
Customs) and a government-owned or controlled
corporation performing ministrant functions (like
the PNB).
Constituent function are those which constitute
the very bonds of society and are compulsory in
nature; ministrant functions are those undertaken
by way of advancing the general interests of
society, and are merely optional. Commercial or
universal banking is, ideally, not a governmental
but a private sector, endeavor. It is an optional
function of government.
. . . The principles determining whether or not a
government shall exercise certain of these
optional functions are: (1) that a government
should do for the public welfare those things
which private capital would not naturally
undertake and (2) that a government should do
those things which by its very, nature it is better
equipped to administer for the public welfare than
is any private individual or group of individuals
(Malcolm, The Government of the Philippine
Islands, pp. 19-20)
From the above we may infer that, strictly
speaking, there are functions which our
government is required to exercise to promote its
objectives as expressed in our Constitution and
which are exercised by it as an attribute of
sovereignty, and those which it may exercise to
promote merely the welfare, progress and
prosperity of the people. To this latter class
belongs the organization of those corporations
owned or controlled by the government to
promote certain aspects of the economic life of
our people such as the National Coconut
Corporation. These are what we call government-
owned or controlled corporations which may take
on the form of a private enterprise or one
organized with powers and formal characteristics
of a private corporation under the Corporation
Law. (Bacani vs. Nacoco, No, L-9657, November
29, 1956, 100 Phil. 468)
But a reorganization whether in a government
bureau performing constituent functions or in a
government-owned or controlled corporation
performing ministrant functions must meet a
common test, the test of good faith. In this
connection, the philosophy behind PNB's
reorganization is spelled out in the whereas
clauses of Executive Order No. 80:
WHEREAS, within the context of the general policy
there nevertheless exists a clear role for direct
government-participation in the banking system,
particularly in servicing the requirements of
agriculture, small and medium scale industry,
export development, and the government sector.
WHEREAS, in pursuit of this national policy there
is need to restructure the government financial
institutions, particularly the Philippine National
Bank, to achieve a more efficient and effective
use of available scarce resources, to improve its
viability, and to avoid unfair competition with the
private sector, and
WHEREAS, the reorganization and rehabilitation of
the Philippine National Bank into a similar but
stronger and more operationally viable bank is an
important component of the nationalization
programs for both the financial system and the
government corporation sector; . . . .
Whether there was a hidden political agenda to
persecute petitioner due to her consanguinial
relation to Mrs. Imelda Romualdez Marcos, the
widow of former President Marcos, is not clearly
shown. On the other hand, it is entirely possible
that, precisely because of such consanguinial
relation, petitioner may have been the object of
deferential, if not special treatment under the
Marcos regime. It is part of the Filipino culture to
extend such deferential, if not special treatment
to close relatives of persons in power. Many times
this is carried to unwholesome extremes. But a
discontinuance of such deferential or special
treatment in the wake of a change in government
or administration is not bad faith per se. It may be
merely putting things in their proper places.
Due to the restructuring — and this is empirically
verifiable — PNB became once more a viable
banking institution. The restoration of the FTD
four years after it was abolished and its functions
transferred to the International Department, can
be attributed to the bank's growth after
reorganizations, thereby negating malice or bad
faith in that reorganization. The essence of good
faith lies in an honest belief in the validity of one's
right. 10 It consists of an honest intention to
abstain from taking an unconscionable and
unscrupulous advantage of another, its absence
should be established by convincing evidence. 11
The records also clearly indicate that starting April
1986 to February 1987, petitioner went on leave
of absence for medical reasons. While she was not
reporting to the office, the bank's reorganization
got underway. She continued, however, receiving
her salaries, allowances, emoluments, honoraria
and fees up to March 1987. Employees who were
affected by the reorganization had the option to
avail of the bank's Separation Benefits Plan/Early
Retirement Plan (SBP/ERIP). Petitioner opted not
to avail of such plan and instead submitted to the
result of the bank's ongoing reorganization and
management's discretion. If petitioner had the
desire for continued employment with the bank,
she could have asserted it for management's
consideration. There is no proof on record that
she affirmatively expressed willingness to be
employed. Since she cannot rebut the CSC finding
that her earliest appeal was made on 4 August
1989, there is no reason for this Court to hold that
she did not sleep on her rights. On the contrary,
her present argument that bad faith existed at the
time of the abolition of the FTD because it was
restored four years later is a little too late. Who
could have predicted in 1986 or 1987 that PNB
would be able to rise from its financial crisis and
become a viable commercial bank again? The
decision to abolish the FTD at the time it was
abolished, to repeat, was a business judgment
made in good faith.
PNB for its part submits that its reorganization
was effected in good faith
because —
a) There was not only a perceptible but
substantial restructuring of the PNB hierarchy
showing reduction of personnel, consolidation of
offices and abolition of positions.
b) Two thousand one hundred thirty two (2,132)
positions were abolished during the period from
February 16, 1986 to January 14, 1987 leaving a
lean workforce of five thousand four hundred five
(5,405) as of latter date per B.R. No. 34 hereto
attached as Annex "R".
c) The number of senior officers, including Senior
Vice Presidents, was accordingly reduced.
Another issue raised by petitioner is PNB's alleged
non-compliance with the mandate of Sections 2
and 4 of Rep. Act No. 6656. These Sections
provide:
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 bona fide
reorganization, a position has 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 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 those less
qualified in terms of status of appointment,
performance and merit;
(d) Where there is a reclassification of offices in
the department or 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.
xxx xxx xxx
Sec. 4. Officers and employees holding
permanent, appointments shall be given
preference for appointment to the new position in
the approved staffing pattern comparable to their
former positions or in case there are not enough
comparable positions, to positions next lower in
rank.
No new employees shall be taken in until all
permanent officers and employees have been
appointed, including temporary and casual
employees who possess the necessary
qualification requirements, among which is the
appropriate civil service eligibility, for permanent
appointment to positions in the approved staffing
pattern, in case there are still positions to be
filled, unless such positions are policy-
determining, primarily confidential or highly
technical in nature.
In the first place, Rep. Act No. 6656 cannot be
invoked by petitioner because it took effect on 15
June 1987, or after PNB's reorganization had
already been implemented. But assuming, ex
gratia argumenti, that it is applicable here and
petitioner must be accorded preferential right to
appointment in the bank, PNB in its rejoinder
impressively asserts:
Needless to say, there were various committees
that were created in the implementation of the
organizational restructuring of the Bank based on
the foregoing policy guidelines. Each personnel to
be retained was evaluated in terms of relative
fitness and merit along with the other personnel
of the Bank. Thus, when then SVP Federico
Pascual was chosen to head the International
Department from among other officers of the
Bank, including Ms. Yap, his qualifications far
exceeded those of the other candidates for the
position.
We attach hereto as Annexes "G-1" and "G-2" the
service records of Mr. Federico Pascual and
Petitioner Ms. Yap, respectively, which clearly
show that the qualifications of Mr. Pascual far
exceed those of Petitioner Yap. Aside from being a
lawyer having been a law graduate from the
University of the Philippines, he is also a Bachelor
of Arts degree holder from Ateneo de Manila and
a Master of Laws graduate o Columbia Law
School. He had studied Masteral Arts in Public
Administration at the London School of Economics
and had undergone extensive seminars since
1974 at the International Department and had
been assigned in several foreign branches of the
Bank. Before he resigned from the Bank, he held
the second highest position of Executive Vice
President and served as Acting President of the
Bank before the incumbent president, President
Gabriel Singson assumed his position.
On the other hand, the service record of Petitioner
Yap will show that she only holds a Bachelor of
Science in Commerce Degree from Assumption
Convent and has undergone only one seminar on
Management and Leadersbip Training Program.
She entered the Bank service in 1972. (Rollo at
pp. 312 to 313)
xxx xxx xxx
The prayer in the petition at bar seeks petitioner's
immediate reinstatement to her former position
as senior vice president and head of the Fund
Transfer Department, or reappointment to a
position of comparable or equivalent rank without
loss of seniority rights and pay, etc., under the
bank's new staffing pattern.
A person claiming to be entitled to a public office
or position usurped or unlawfully held or
exercised by another may bring an action for quo
warranto (Rule 66, Sec. 6, Rules of Court). The
petitioner therein must show a clear legal right to
the office allegedly held unlawfully by another. 12
An action for quo warranto should be brought
within one (1) year after ouster from office; 13 the
failure to institute the same within the
reglementary period constitutes more than a
sufficient basis for its dismissal 14 since it is not
proper that the title to a public office be subjected
to continued
uncertainty . . . 15 An exception to this prescriptive
period lies only if the failure to file the action can
be attributed to the acts of a responsible
government officer and not of the dismissed
employee. 16
Measured by the above jurisprudence, petitioner's
action may be said to be one for quo warranto,
seeking reinstatement to her former position
which at present is occupied by another. She
cannot invoke De Tavera v. Phil. Tuberculosis
Society, Inc., et. al. 17 and contend that there is no
claim of usurpation of office, and that quo
warranto may be availed of to assert one's right
to an office in the situation obtaining in the case
at bar.
Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19
are invoked by petitioner to illustrate that this
action is one for separation without just cause,
hence, the prescriptive period is allegedly four (4)
years in accordance with Article 1146 of the Civil
Code. 20 We do not agree. Petitioner's separation
from the service was due to the abolition of her
office in implementation of a valid reorganization.
This is not the unjustifiable cause which results in
injury to the rights of a person contemplated by
Article 1146. The abolition of the office was not a
whimsical, thoughtless move. It was a thoroughly
evaluated action for streamlining functions based
on a rehabilitation plan. 21 At the time of the
abolition of the Fund Transfer Department in
1986, foreign exchange losses of the bank
amounted to P81.1 Million. 22 The head of office
was a Senior Vice President. At the time of
restoration of the department in 1991, it was
headed by a vice president (lower in rank) and
showed earnings of P2,620.0 Million. 23 Other
departments abolished in 1986 were also
subsequently restored.
Restoring petitioner to her previous position with
backwages would be unjust enrichment to her,
considering that she had abandoned or showed
lack of interest in reclaiming the same position
when the bank was not yet fully rehabilitated and
she only insisted on reinstatement in August 1989
or two (2) years after her alleged unjustified
separation.
To those who feel that their unjustified separation
from the service is for a cause beyond their
control, the aforecited Magno case teaches:
. . . while We fully recognize the special protection
which the Constitution, labor laws, and social
legislation accord the workingman, We cannot,
however, alter or amend the law on prescription
to relieve him of the consequences of his inaction.
Vigilantibus, non dormientibus, jura subveniunt
(Laws come to the assistance of the vigilant, not
of the sleeping). His explanation that he could not
have filed the complaint earlier because "he was
prevented to do so beyond his control for the
simple reason that private respondent have (sic)
tried to circumvent the law by merely floating"
him is very flimsy and does not even evoke
sympathetic consideration, if at all it is proper and
necessary. We note that petitioner herein is not
an unlettered man; he seems to be educated and
assertive of his rights and appears to be familiar
with judicial procedures. He filed a motion for
extension of time to file the petition and the
petition itself without the assistance of counsel.
We cannot believe that if indeed he had a valid
grievance against PNCC he would not have taken
immediate positive steps for its redress.
WHEREFORE, premises considered, the assailed
CSC resolution is AFFIRMED. The petition is
DISMISSED for failure to show grave abuse of
discretion on the part of said CSC in rendering the
questioned resolution. No pronouncement as to
costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Nocon, Bellosillo,
Melo, Quiason, Puno and Vitug, JJ., concur.
# Footnotes
1 Rollo, p. 12.
2 Rollo, pp. 43-44.
3 Resolution No. 92-201, CSC, Rollo, p. 31.
4 Ibid., p. 32.
5 Ibid., pp. 33-34.
6 Rollo at p. 36.
7 G.R. No. 81954, August 8, 1989, 176 SCRA 92-
93.
8 Air France v. Carrascoso L-21438, September
28, 1966, 18 SCRA 166.
9 De Castro v. Carranza, 50460-R, July 3, 1974,
see Moreno, F.B., Philippine Law Dictionary, Third
Edition.
10 Bernardo vs. Bernardo, 96 Phil., 205.
11 Hilario vs. Galvez, 45494-R, August 19, 1971.
12 Carillo vs. CA, G.R. No. L-24554, May 31, 1967,
77 SCRA 170.
13 Cornejo vs. Secretary of Justice, G.R. No. L-
32818, June 28, 1974, 57 SCRA 663.
14 Alejo vs. Marquez, G.R. No. L-29053, February
27, 1971, 37 SCRA 762.
15 Villegas vs. de la Cruz, G.R. No. L-23752,
December 31, 1965, 15 SCRA 720.
16 Cristobal vs. Melchor, G.R. No. L-43203, July
29, 1977, 75 SCRA 175.
17 G.R. No. L-48928, February 25, 1982, 112
SCRA 243.
18 G.R. No. L-47750, February 29, 1980, 96 SCRA
448.
19 G.R. No. L-87320, June 6, 1991, 198 SCRA 230.
20 Article 1146, Civil Code, provides:
Art 1146. The following actions must be instituted
within four years:
1. Upon an injury to the rights of the plaintiff;
2. Upon a quasi-delict."
21 Annex F-2, Rollo at 336.
22 PNB's Rejoinder, p. 29, Rollo at 293.
23 Ibid., p. 294.
EN BANC
[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.
DECISION
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 Audit 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;
Francis H. P. Militante
- allowance, and excessive per diems to members
Domingo V. Cotiamco
payee
Apolonio G. Medina
do -
Nilo T. Ramada
- receive benefits in excess of that authorized by
Virginia P. Espinosa
-
Ernesto L. Gorre
do -
Antonio R. C. Palencia
-
Ma. Josette B. Astorga
- First. As far as the directors of the BWD are
Love Joy A. Fernandez
- D. No. 768 and P. D. No. 1479, reads:
Frank Bula
do -
are held liable.
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.
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
- do employees, as well as the grant of RATA, rice
as 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
- do BWD officers and employees are entitled to
- do 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.
- do
198, the guidelines of the LWUA, and other
applicable laws.
- do
- do concerned, P. D. No. 198, §13, as amended by P.
- 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,
§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, Vengco v. Trajano, and
Philippine Duplicators, Inc. v. NLRC, 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, due regard being given to the context in
which the words and phrases are used. 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 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, sub-professional
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 bachelor’s 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 DBM-CSC-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 Commission 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.
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. 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.
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. The cash gift granted to Francis H. P.
Militante, BWD Manager, for the year 1994
amounted to P1,500.00. 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 quasi-judicial
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. 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, Philippine Ports Authority v. Commission
on Audit, and Manila International Airport
Authority v. Commission on Audit 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.
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, 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 pre-empting 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. 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
board’s 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.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan,
Panganiban, Quisumbing, Pardo, Buena, Ynares-
Santiago, De Leon, Jr., Sandoval-Gutierrez, and
Carpio, JJ., concur.
Vitug, J., in the result.
Per Chairman Celso D. Gangan and
Commissioners Raul C. Flores and Emmanuel M.
Dalman.
Rollo, p. 26.
Petition, p. 7; Rollo, p. 9.
Amending, Expanding, Increasing and Integrating
the Social Security and Insurance Benefits of
Government Employees and Facilitating the
payment thereof under Commonwealth Act No.
167, as amended, and for other purposes.
167 SCRA 99 (1988).
173 SCRA 155 (1989).
241 SCRA 380 (1995).
Espino v. Cleofe, 52 SCRA 92 (1973).
U. S. v. Estapia, 37 Phil. 17 (1917).
Sec. 22. Repealing Clause.-All laws, decrees,
orders, rules or regulations or parts thereof
inconsistent with the provisions of this Act are
hereby repealed, amended, or modified
accordingly.
201 SCRA 593 (1991).
E. Rodriguez, Inc. v. Collector of Internal Revenue,
28 SCRA 1119 (1969).
Cebu Portland Cement Co. v. de Jesus, 7 SCRA
572 (1963).
Grace Christian High School v. Court of Appeals,
281 SCRA 133 (1997).
R.A. No. 6686, §1.
Laysa v. Commission on Audit, G. R. No. 128134,
October 18, 2000.
294 SCRA 152 (1998).
214 SCRA 653 (1992).
238 SCRA 714 (1994).
Tierra International Construction Corp. v. NLRC,
256 SCRA 36 (1996).
P. D. 198, §18.
Alliance of Government Workers (AGW) v. The
Minister of Labor, 209 Phil. 1 (1983).
FIRST DIVISION
[G.R. No. 125498. February 18, 1999]
CONRADO B. RODRIGO, JR., ALEJANDRO A.
FACUNDO and REYNALDO G. MEJICA, petitioners,
vs. THE HONORABLE SANDIGANBAYAN (First
Division), OMBUDSMAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
KAPUNAN, J.:
Petitioners Conrado B. Rodrigo and Reynaldo G.
Mejica are the Mayor and Municipal Planning and
Development Coordinator, respectively, of San
Nicolas, Pangasinan, while petitioner Alejandro A.
Facundo is the former Municipal Treasurer of the
same municipality.
On 15 June 1992, the Municipality of San Nicolas,
represented by Mayor Rodrigo, entered into an
agreement with Philwood Construction,
 represented by Larry Lu, for the electrification of
Barangay Caboloan, San Nicolas, for the sum of
P486,386.18, requiring:
1. Installation of the two (2) units diesel power
generator (20) KVA, 220 W, Battery start and
other accessories);
2. Installation of 24 rolls feeder lines with nos. 6, 8
and ten wires;
3. Installation of 40 units 4 x 4 wooden post with
accessories; and
4. Construction of powerhouse with concrete
foundation double throw safety switches (double
pole, 250 amperes capacity of 220 V with fuse).
On 2 September 1992, Mejica, the Planning and
Development Coordinator of San Nicolas,
prepared an Accomplishment Report stating that
the Caboloan Power Generation project was
97.5% accomplished. Said report was supposedly
approved by mayor Rodrigo and confirmed by
Larry Lu. On the basis of said report, payment of
P452,825.53 was effected by the Municipal
Treasurer, petitioner Facundo, to Philwood
Construction.
On 14 August 1993, petitioners received a Notice
of Disallowance dated 21 June 1993 from the
Provincial Auditor of Pangasinan, Atty. Agustin
Chan, Jr., who found that as per COA (Commission
on Audit) evaluation of the electrification project,
only 60.0171% of the project (equivalent to
P291,915.07) was actually accomplished. Of the
two units of generator supposedly purchased,
only one second-hand unit was delivered. The
same generator broke down after only two nights
of operation. In addition, instead of 40 wooden
posts, only 27 were installed. The powerhouse
was only 65.635% completed. The Provincial
Auditor thus disallowed the amount of
P160,910.46.
The graph below serves to illustrate the conflicts
between Mejica’s report and the COA’s:
Percentage
Accomplish
ed
Amount paid P452,825. 93.0090% (accdg. to
By Municipality 53 Mejica’s
report)
Cost of Actual P291,915. 60.0171% (accdg. to
Accomplishmen07 COA report)
t
Amount P160,910. 33.08% (difference)
46
Disallowed
In September 1993, petitioners requested the
Provincial Auditor to lift the notice of disallowance
and to re-inspect the project. Petitioners
reiterated their plea in a letter to the Provincial
Auditor dated 3 November 1993, attaching
therewith a “Certificate of Acceptance and
Completion” signed by Clemente Arquero, Jr.,
Barangay Captain of Caboloan, and Eusebio
Doton, President of the Cabaloan Electric
Cooperative. The Provincial Auditor, however,
allegedly did not act on petitioners’ requests.
On 10 January 1994, the Provincial Auditor filed a
criminal complaint for estafa before the
Ombudsman against petitioners. Likewise
impleaded were Larry Lu and Ramil Ang,
President and General Manager, and Project
Engineer, respectively, of Philwood Construction.
On 10 June 1995, Acting Ombudsman Francisco
Villa approved the filing of an information against
petitioners for violation of Section 3 (e) of
Republic Act No. 3019 before the Sandiganbayan.
On 28 July 1995, petitioners filed a motion for
reinvestigation before the Sandiganbayan. The
Sandiganbayan granted said motion in an Order
dated 22 April 1996.
On 7 November 1995, the Office of the Special
Prosecutor issued a memorandum recommending
that the charges against petitioners be
maintained. The Ombudsman approved said
memorandum.
Petitioners thereafter filed before the
Sandiganbayan a motion to quash the information
alleging, as grounds therefor that (1) the facts
alleged in the information did not constitute an
offense, and (2) the same information charged
more than one offense. Petitioners, however, did
not elaborate on these grounds. They instead
faulted the Provincial Auditor for instituting the
complaint against them notwithstanding the
pendency of their opposition to the notice of
disallowance. They also argued that the evidence
against them did not establish the element of
damage nor the presence of any conspiracy
between them.
The Sandiganbayan denied said motion in an
Order dated 18 March 1996.
On 18 March 1996, the prosecution moved to
suspend petitioners pendente lite. Petitioners
opposed the motion on the ground that the
Sandiganbayan lacked jurisdiction over them. In
a Resolution dated 2 July 1996, the
Sandiganbayan ruled that it had jurisdiction over
petitioners and ordered the suspension of
petitioners pendente lite.
Petitioners thus filed before this Court the instant
petition for certiorari under Rule 65, praying that
the Court annul: (a) the order of the
Sandiganbayan denying petitioners’ motion to
quash, and (b) the resolution of the same court
upholding its jurisdiction over petitioners.
Petitioners likewise prayed that this Court issue a
temporary restraining order to enjoin the
Sandiganbayan from proceeding with the case.
On 28 August 1998, the court resolved to issue
the temporary restraining order prayed for.
Petitioners allege the following grounds in support
of their petition:
I or extending the time to answer beyond the
THE SANDIGANBAYAN ERRED IN ALLOWING THE
LITIGATION OF THE CRIMINAL INFORMATION FOR
CONSPIRACY IN VIOLATING SECTION 3(E) OF THE
ANTI- GRAFT ACT (R.A. 3019) WHEN THE NOTICE
OF DISALLOWANCE STILL PENDS WITH THE
PROVINCIAL AUDITOR UNDER PETITIONER’
PROTEST SUPPORTED BY CERTIFICATE OF
COMPLETION AND ACCEPTANCE OF THE
REQUIRED ELEMENT OF 'CAUSING UNDUE INJURY
TO ANY PARTY, INCLUDING THE GOVERNMENT’
AND GROSS NEGLIGENCE.
II
THE SANDIGANBAYAN HAS NO JURISDICTION TO
PROCEED AGAINST ALL THE PETITIONERS AND
ALL THE PROCEEDINGS THEREIN, PARTICULARLY
THE ORDER OF SUSPENSION FROM OFFICE
PENDENTE LITE, ARE NULL AND VOID AB INITIO.
III
THE ONGOING PROCEEDINGS BEFORE THE
SANDIGANBAYAN IS A CLEAR VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE PETITIONERS
UNDER THE DUE PROCESS CLAUSE AS IT WAS
PRECEDED BY HASTY, MALICIOUS, SHAM AND
HASTY PRELIMINARY INVESTIGATION INEVITABLY
EXPOSING THEM TO A PROLONGED ANXIETY,
AGGRAVATION, EXPENSES, AND HUMILIATION OF
A PUBLIC TRIAL.
IV
THE PRECIPITATE SANDIGANBAYAN ORDER OF
SUSPENSION IS A LEGAL ERROR AS THE SAME
EVIDENTLY THE LACK OF THE REQUIRED COLD
NEUTRALITY OF AN IMPARTIAL TRIBUNAL
VIOLATING PETITIONERS’ CONSTITUTIONAL
RIGHTS UNDER THE DUE PROCESS CLAUSE AND
BILL OF RIGHTS.
The first ground raises two issues: (1) whether
petitioners’ right to due process was violated by
the filing of the complaint against them by the
Provincial Auditor, and (2) whether the
Ombudsman committed grave abuse of discretion
in filing the information against petitioners. The
second questions the jurisdiction of the
Sandiganbayan over petitioners. The third and
fourth grounds are related to the first and are
subsumed thereunder.
After a meticulous scrutiny of petitioners’
arguments, we find the petition devoid of merit.
I
Petitioners contend that the institution by the
Provincial Auditor of the complaint despite the
pendency of their opposition to the notice of
disallowance violates their right to due process.
They submit that “the issuance of a notice of
disallowance against (them) compels the
provincial auditor to either accept a settlement or
adjudicate and decide on ‘the written explanation
for the purpose of lifting/settling the suspension
ninety (90) day period prior to its conversion into
a disallowance.”’
The italicized portion above is an excerpt from
Section 44.6.4 of the State Audit Manual, which
states in full:
Sec. 44.6.4. Auditor’s Responsibility re
Evaluation of Disallowance. – It shall be the
responsibility of the auditor to exercise
professional judgment in evaluating, on the basis
of the facts and circumstances of each case as
well as the pertinent provisions of applicable laws,
rules and regulations, the grounds for a charge or
suspension/disallowance of an account or
transaction.
It shall be the responsibility of the auditor to
exercise sound judgment in evaluating the written
explanation of the accountable/responsible/liable
officer concerned for the purpose of lifting the
suspension or extending the time to answer
beyond the ninety (90) day period prior to its
conversion into a disallowance. (Underscoring
supplied.)
The aforequoted provision should be read in
conjunction with Section 82 of the State Audit
Code, which states that:
(a) charge of suspension which is not satisfactorily
explained within ninety days after receipt or
notice by the accountable officer concerned shall
become a disallowance, unless the Commission or
auditor concerned shall, in writing and for good
cause shown, extend the time for answer beyond
ninety days.
At this point, it may be useful to distinguish
between a disallowance and a suspension. A
disallowance is the disapproval of a credit or
credits to an account/accountable officer’s
accountability due to non-compliance with law or
regulations. Thus, the auditor may disallow an
expenditure/transaction which is unlawful or
improper.
A suspension, on the other hand, is the
deferment of action to debit/credit the
account/accountable officer’s accountability
pending compliance with certain requirements. A
notice of suspension is issued on transactions or
accounts which could otherwise have been settled
except for some requirements, like lack of
supporting documents or certain signatures. It is
also issued on transactions or accounts the
legality/propriety of which the auditor doubts but
which he may later allow after satisfactory or
valid justification is submitted by the parties
concerned.
As stated in Section 82, supra, however, the
suspension shall become a disallowance if the
charge of suspension is “not satisfactorily
explained within ninety days after receipt or
notice by the accountable officer concerned." The
ninety-day period within which the accountable
officer may answer the charge of suspension may
nevertheless be extended by the Commission or
the auditor for “good cause shown.”
Clearly, petitioners misinterpreted Section 44.6.4.
First, petitioners were not charged with
suspension but disallowance. Second, the “written
explanation” referred to in said section is “for the
purpose of lifting the suspension or extending the
time to answer beyond the ninety (90) day period
prior to its conversion into a disallowance,” not for
contesting a disallowance, as petitioners
wrongfully assert. Section 44.6.4., therefore, finds
no application in this case.
On the other hand, respondents correctly invoke
Sections 55 and 56 of Commission on Audit
Circular No. 85-156-B, which respectively provide:
SECTION 55. REPORTING FRAUD/UNLAWFUL
ACTIVITIES
If after evaluation of the findings, the auditor is
convinced that the evidence sufficiently discloses
the fraud and other unlawful activities and
identifies the perpetrators thereof, he shall
prepare the sworn statements of the examining
witnesses and/or other witnesses and make a
report to the Manager/Regional Director
concerned, attaching thereto copies of the
pertinent affidavits and other supporting
documents.
SECTION 56. INSTITUTION OF CRIMINAL ACTION
If criminal prosecution is warranted, the Regional
Director/Manager concerned with respect to
National Government Agencies/government
Owned or Controlled Corporations or
Provincial/City Auditors with respect to local
government units shall prepare a letter-complaint
and file the same with the Tanodbayan or the
local deputized Tanodbayan prosecutor within ten
(10) days from receipt of the report from the
examining auditor, attaching thereto copies of the
sworn statements or affidavits of witnesses and
other pertinent documents.
Section 56 imposes upon the Provincial Auditor
the duty to file a complaint before the
Tanodbayan (now the Ombudsman) when, from
the evidence obtained during the audit, he is
convinced that “criminal prosecution is
warranted.” The Provincial Auditor need not
resolve the opposition to the notice of
disallowance and the motion for re-inspection
pending in his office before he institutes such
complaint so long as there are sufficient grounds
to support the same. The right to due process of
the respondents to the complaint, insofar as the
criminal aspect of the case is concerned, is not
impaired by such institution. The respondents will
still have the opportunity to confront the
accusations contained in the complaint during the
preliminary investigation. They may still raise the
same defenses contained in their motion to lift the
disallowance, as well as other defenses, in the
preliminary investigation. Should the Provincial
Auditor later reverse himself and grant
respondents’ motions, or should the COA, or this
Court, subsequently absolve them from liability
during the pendency of the preliminary
investigation, the respondents may ask the
prosecuting officer to take cognizance of such
decision. The prosecuting officer may then
accord such decision its proper weight.
It bears stressing that the exoneration of
respondents in the audit investigation does not
mean the automatic dismissal of the complaint
against them. The preliminary investigation, after
all, is independent from the investigation
conducted by the COA, their purposes distinct
from each other. The first involves the
determination of the fact of the commission of a
crime; the second relates to the administrative
aspect of the expenditure of public funds.
Accordingly, we hold that the Ombudsman did not
err in entertaining the complaint filed by the
Provincial Auditor against petitioners, nor the
Sandiganbayan in allowing trial to proceed,
despite the pendency of petitioners’ motions
before the auditor.
II
Petitioners argue that their opposition to the
disallowance, supported as it is by a certificate of
acceptance and completion, would betray the
absence of the elements of evident bad faith or
negligence, and damage. They likewise claim
that the evidence does not establish conspiracy
among them.
The presence or absence of the elements of the
crime, however, is evidentiary in nature and is a
matter of defense, the truth of which can be best
passed upon after a full-blown trial on the merits.
The same applies to the alleged absence of any
conspiracy between the accused.
This Court, moreover, has maintained a consistent
policy of non-interference in the determination of
the Ombudsman regarding the existence of
probable cause, provided there is no grave abuse
in the exercise of such discretion. In a recent
decision, this Court, quoting Young vs. Office of
the Ombudsman, stated the rationale for this rule:
... The rule is based not only upon respect for the
investigatory and prosecutory powers granted by
the Constitution to the Office of the Ombudsman
but upon practicality as well. Otherwise, the
functions of the court will be grievously hampered
by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office
of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts
would be extremely swamped if they could be
compelled to review the exercise of discretion on
the part of the fiscals or prosecuting attorneys
each time they decide to file an information in
court or dismiss a complaint by a private
complainant.
Petitioners have failed to establish any such
abuse on the part of the Ombudsman.
III
Petitioners next question the jurisdiction of the
Sandiganbayan. They contend that Mayor
Rodrigo occupies a position of Grade 24 and is,
therefore, beyond the original and exclusive
jurisdiction of the Sandiganbayan.
Before the passage of Republic Act No. 7975 on
30 March 1995, the pertinent portions of section 4
of Presidential Decree No. 1606, as amended by
Presidential Decree No. 1861, read as follows:
SEC. 4. Jurisdiction. – The Sandiganbayan shall
exercise:
(a) Exclusive original jurisdiction in all cases
involving:
(1) Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal
Code;
(2) Other offenses or felonies committed by
public officers and employees in relation to their
office, including those employed in government-
owned or controlled corporations, whether simple
or complexed with other crimes, where the
penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or
a fine of P6,000.00; PROVIDED, HOWEVER, that
offenses or felonies mentioned in this paragraph
where the penalty prescribed by law does not
exceed prision correccional or imprisonment for
six (6) years or a fine of P6,000.00 shall be tried
by the proper Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court and Municipal
Circuit Trial Court.
xxx.
Section 2 of R.A. No. 7975 subsequently redefined
the jurisdiction of the Anti-Graft Court such that
the pertinent portions of Section 4 of P.D. No.
1606 now reads:
Sec. 4. Jurisdiction. -- the Sandiganbayan shall
exercise original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal
Code, where one or more of the principal accused
are officials occupying the following positions in
the government, whether in a permanent, acting
or interim capacity, at the time of the commission
of the offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher,
otherwise classified as grade “27” and higher, of
the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members
of the sangguniang panlalawigan and provincial
treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads.
(c) Officials of the diplomatic service occupying
the position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of
higher rank;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations,
state universities or educational institutions or
foundations;
(2) Members of Congress and officials thereof
classified as Grade “27” and up under the
Compensation and Position Classification Act of
1989;
(3) Members of the judiciary without prejudice to
the provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions
of the Constitution; and
(5) All other national and local officials classified
as Grade “27” and higher under the
Compensation and Position Classification Act of
1989.
b. Other offenses or felonies committed by the
public officials and employees mentioned in
subsection (a) of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and
14-A.
In cases where none of the principal accused are
occupying positions corresponding to salary grade
“27” or higher, as prescribed in the said Republic
Act No. 6758, or PNP officers occupying the rank
of superintendent or higher, or their equivalent,
exclusive jurisdiction thereof shall be vested in
the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court, and Municipal Circuit
Trial Court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas
Pambansa Blg. 129.
xxx
Then Associate, now Chief Justice, Hilario Davide
explained the effects of these amendments in
People vs. Magallanes:
As a consequence of these amendments, the
Sandiganbayan partly lost its exclusive original
jurisdiction in cases involving violations of R.A.
No. 3019, as amended, as amended; R.A. No.
1379, and Chapter II, Section 2, Title VII of the
Revised Penal Code, it retains only cases where
the accused are those enumerated in subsection
a, Section 4 above and, generally, national and
local officials classified as Grade “27” and higher
under the Compensation and Position
Classification Act of 1989 (R.A. No. 6758).
Moreover, its jurisdiction over other offenses or
felonies committed by public officials and
employees in relation to their office is no longer
determined by the prescribed penalty, viz., that
which is higher than prision correccional or
imprisonment for six years or a fine of P6,000.00;
it is enough that they are committed by those
public officials and employees enumerated in
subsection a, Section 4 above. However, it
retains its exclusive original jurisdiction over civil
and criminal cases filed pursuant to or in
connection with E.O. Nos. 1, 2, 14, and 14-A.
The apparent intendment of these amendments is
to ease the dockets of the Sandiganbayan and to
allow the Anti-Graft Court to focus its efforts on
the trial of those occupying higher positions in
government, the proverbial “big fish.” Section 4,
as amended, freed the Sandiganbayan from the
task of trying cases involving lower-ranking
government officials, imposing such duty upon
the regular courts instead. The present structure
is also intended to benefit these officials of lower
rank, especially those residing outside Metro
Manila, charged with crimes related to their office,
who can ill-afford the expenses of a trial in Metro
Manila. As the Explanatory Note of House Bill No.
9825 states:
One is given the impression that only lowly
government workers or the so-called ‘small fry’
are expediently tried and convicted by the
Sandiganbayan. The reason for this is that at
present, the Sandiganbayan has the exclusive and
original jurisdiction over graft cases committed by
all officials and employees of the government,
irrespective of rank and position, from the lowest-
paid janitor to the highly-placed government
official. This jurisdiction of the Sandiganbayan
must be modified in such a way that only those
occupying high positions in the government and
the military (the big fishes) may fall under its
exclusive and original jurisdiction. In this was,
the Sandiganbayan can devote its time to big
time cases involving the “big fishes” in the
government. The regular courts will be vested
with the jurisdiction of cases involving less-
ranking officials (those occupying positions
corresponding to salary grade twenty-seven (27)
and below and PNP members with a rank lower
than Senior Superintendent. This set-up will
prove more convenient to people in the
provinces. They will no longer have to travel to
Manila to file their complaint or to defend
themselves. They can already file their complaint
or their defense before the Regional Trial Court or
the Municipal Trial Court in their respective
localities, as the case may be.
To distinguish the “big fish” from the “small fry,”
Congress deemed the 27th Grade as the
demarcation between those who should come
under the jurisdiction of the Sandiganbayan and
those within the regular courts’. (While H.B. No.
9825 originally intended only officials of Grade 28
and above as within the exclusive and original
jurisdiction of the Sandiganbayan, the resulting
law included officials of Grade 27.) Thus, officials
occupying positions of Grade 27 and above,
charged with crimes referred to in Section 4 a.
and b., are within the original and exclusive
jurisdiction of the Sandiganbayan; those below
come under the jurisdiction of the regular courts.
Although some positions of Grade 27 and above
are stated by name in Section 4 a., the position of
Municipal Mayor is not among them.
Nevertheless, Congress provided a catchall in
Section 4 a. (5), thus:
(5) All other national and local officials classified
as Grade “27” and higher under the
Compensation and Position Classification Act of
1989.
Such a catchall is necessary, for it would be
impractical, if not impossible, for Congress to list
down each position created or will be created
pertaining to Grades 27 and above.
At present, Volume III of the 1997 edition of the
Index of Occupational Services, Position Titles and
Salary Grades, which was prepared by the
Department of Budget and Management (DBM)
pursuant to Republic Act No. 6758, otherwise
known as the “Compensation and Position
Classification Act of 1989,” lists the following
positions under Salary Grade 27, including the
position of “Municipal Mayor I”:
Assistant Commissioner of Internal Revenue
Assistant Regional Cabinet Secretary
Assistant Regional Executive Secretary
Board Member I
Chairman, Police Regional Appellate Board
Chief of Mission, Class II
City Government Department Head III
City Trial Court Judge
Clerk of the Commission
Commission Member I
Court Attorney VI
Court of Appeals Reporter II
Deputy Administrator I
Deputy Commissioner I
Deputy Executive Director III
Deputy Insurance Commissioner
Director III
Executive Clerk of Court II
Executive Director II
Government Corporate Attorney III
Graft Investigation Officer II
Municipal Mayor I
Professor IV
Project Manager III
Prosecutor II
Provincial Agrarian Reform Adjudicator
Public Attorney IV
Regional Treasurer
Register of Deeds IV
Sangguniang Panlalawigan Member
Sangguniang Panlungsod Member II
Scientist II
Solicitor II
Special Prosecution Officer II
State Counsel IV
SUC President I
SUC Vice-President III
Earlier, in the 1989 version of the same Index, the
Municipal Mayor was also assigned a Salary Grade
of 27. It appears, therefore, that petitioner Mayor
comes within the exclusive and original
jurisdiction of the Sandiganbayan.
Petitioners, however, claim that at the time of the
commission of the alleged crime on or about 2
September 1992, Mayor Rodrigo, the highest
public ranking public official impleaded in this
case, was receiving a monthly salary of
P10,441.00. Such amount 6758 is supposedly
equivalent to a fourth step increment in Grade 24
under the Salary Schedule prescribed in Section 7
of R.A. No. 6758: *
SEC. 7. Salary Schedule. – The Department of
Budget and Management is hereby directed to
implement the Salary Schedule prescribed below:
Salary
Sched
ule
Grade 1st 2nd 3rd 4th 5th 6th 7th 8th
Xxx
24 10,1 10,2 10,3 10,4 10,6 10,6 10,7 10,8
35 36 39 42 46 52 68 66
Xxx
Petitioners conclude that Mayor Rodrigo, at the
time of the commission of the alleged crime, was
occupying a Grade 24 position and, thus, not
within the Sandiganbayan’s original and exclusive
jurisdiction, as defined in Section 2 of R.A. No.
7975.
This is a simplistic, and altogether incorrect,
interpretation of the law.
Section 5, Article IX-C of the Constitution provides
that:
The Congress shall provide for the standardization
of compensation of government officials and
employees, including those in government-owned
or controlled corporation with original charters,
taking into account the nature of the
responsibilities pertaining to, and the
qualifications required for their positions.
This provision is not unique to the 1987
Constitution. The 1973 Constitution, in Section 6,
Article XII thereof, contains a very similar
provision pursuant to which then President
Marcos, in the exercise of his legislative powers,
issued Presidential Decree No. 985.
However, with the advent of the new Constitution,
and in compliance therewith, Congress enacted
R.A. No. 6758. Section 2 thereof declares it the
policy of the State “to provide equal pay for
substantially equal work and to base differences
in pay upon substantive differences in duties and
responsibilities, and qualification requirements of
the positions."
To give life to this policy, as well as the
constitutional prescription to “(take) into account
the nature of the responsibilities pertaining to,
and the qualifications required” for the positions
of government officials and employees, Congress
adopted the scheme employed in P.D. No. 985 for
classifying positions with comparable
responsibilities and qualifications for the purpose
of according such positions similar salaries. This
scheme is known as the “Grade,” defined in P.D.
No. 985 as:
Includ[ing] all classes of positions which, although
different with respect to kind or subject matter of
work, are sufficiently equivalent as to level of
difficulty and responsibilities and level of
qualification requirements of the work to warrant
the inclusion of such classes of positions within The Department of Budget and Management is
one range of basic compensation. hereby authorized to determine the officials who
are of equivalent rank to the foregoing Officials,
The Grade is therefore a means of grouping
where applicable, and may be assigned the same
positions “sufficiently equivalent as to level of
Salary Grades based on the following guidelines:
difficulty and responsibilities and level of
qualification requirements of the work” so that xxx
they may be lumped together in “one range of As indicated in the aforequoted section, Congress
basic compensation.” delegated the rest of this tedious task (of fixing
Thus, Congress, under Section 8 of R.A. No. 6758, Salary Grades) to the DBM, subject to the
fixed the Salary Grades of officials holding standards contained in R.A. No. 6758, by
constitutional positions, as follows: authorizing the DBM to “determine the officials
who are of equivalent rank to the foregoing
SEC. 8. Salaries of Constitutional Officials and
officials, where applicable,” and to assign them
their Equivalent. – Pursuant to Section 17, Article
the same Salary Grades subject to a set of
XVIII of the Constitution, the salary of the
guidelines found in said section.
following officials shall be in accordance with the
Salary Grades indicated hereunder: For positions below those mentioned under
Section 8, Section 9 directs the DBM to prepare
Salar
the “Index of Occupational Services” guided by
y
(a) the Benchmark Position prescribed in Section
Grad
9, and (b) the following factors:
e
(1) the education and experience required to
perform the duties and responsibilities of the
President of 33 position;
the
(2) nature and complexity of the work to be
Philippines
performed;
Vice-President 32
of the (3) the kind of supervision received;
Philippines (4) mental and/or physical strain required in the
President of 32 completion of the work;
the Senate
Speaker of 32 (5) nature and extent of internal and external
the House of relationships;
Representativ (6) kind of supervision exercised;
es
(7) decision-making responsibility;
Chief Justice 32
of the (8) responsibility for accuracy of records and reports;
Supreme (9) accountability for funds, properties and
Court equipment; and
Senator 31
Member of 31 (10) hardship, hazard and personal risk involved in
the House of the job.
Representativ Pursuant to such authority, the DBM drafted the
es 1989 Index of Occupational Services, Position
Associate 31 Titles and Salary Grades, later revised in 1997. In
Justices of the both versions, the position of Municipal Mayor was
Supreme assigned a Salary Grade 27.
Court That petitioner received a salary less than that
Chairman of a 31 prescribed for such Grade is explained by
Constitutional Sections 10 and 19 (b) of R.A. No. 6758, which
Commission respectively provide:
under
Article IX, SEC. 10. Local Government Units (LGUs). -- The
1987 rates of pay in LGUs shall be determined on the
Constitution basis of the class and financial capability of each
Member of a 30 LGU: Provided, That such rates of pay shall not
Constitutional exceed the following percentages of the rates in
Commission the salary schedule prescribed under Section 7
under Article hereof:
IX, 1987 For For
Constitution
 Provinces/Citi Municipaliti
es es
Specia 100%
l Cities
1st 100% 90%
Class
2nd 95% 85%
Class
3rd 90% 80%
Class
4th 85% 75%
Class
5th 80% 70%
Class
6th 75% 65%
Class
SEC. 19. Funding Source. – The funding sources
for the amounts necessary to implement this Act
shall be as follows:
(a) x x x
(b) For local government units, the amount shall
be charged against their respective funds. Local
government units which do not have adequate or
sufficient funds shall only partially implement the
established rates as may be approved by the Joint
Commission under Section 8 of Presidential
Decree No. 1188: Provided, That any partial
implementation shall be uniform and
proportionate for all positions in each local
government unit: Provided further, That savings
from National Assistance to Local Government
Units (NALGU) funds may be used for this
purpose.
x x x. (Underscoring supplied.)
Thus, a local government official’s actual salary
may be less than what the Salary Schedule under
Section 7 prescribes, depending on the class and
financial capability of his or her respective local
government unit. This circumstance, however,
has no bearing on such official’s Grade. As the
foregoing discussion shows, on official’s salary
is determined by the Grade accorded his
position, and ultimately by the nature of his
position – the level of difficulty and
responsibilities and level of qualification
requirements of the work. To give credence to
petitioners’ argument that Mayor Rodrigo’s salary
determines his Grade would be to misconstrue the
provisions of R.A. No. 6758, and ignore the
constitutional and statutory policies behind said
law.
Petitioner mayor’s position having been classified
as Grade 27 in accordance with R.A. No. 6758,
and having been charged with violation of Section
3 (e) of R.A. No. 3019, petitioner is subject to the
jurisdiction of the Sandiganbayan, as defined by
Section 4 a. of P.D. No. 1606, as amended by
Section 2 of R.A. No. 7975. By virtue of the same
Section 4 a., as amended, his co-accused are also
subject to the Anti-Graft Court’s jurisdiction.
WHEREFORE, the petition is hereby DISMISSED
and the Temporary Restraining Order issued by
this Court on 28 August 1996 LIFTED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, and Pardo, JJ.,
concur.
* * Note, however, the P1.00 discrepancy between
petitioner's alleged salary and the salary
prescribed under the 4th step increment for
Grade 24.*
Rollo, p. 44.
Annex “A” of Petition, Rollo, p. 39.
Annex “B” of Petition, id., at 40.
Annex “C” of Petition, id., at 41.
Annex “D” of Petition, id., at 42.
The Anti-Graft and Corrupt Practices Act.
Rollo, pp. 20-21. Italics in the original.
Id., at. 188. Italics in the original.
Presidential Decree No. 1445.
Section 2k, Commission on Audit Circular No. 85-
156-B. Section 3.9 of the Manual on Certificate of
Settlement and Balances (Revised 1993)
(Commission on Audit Circular No. 94-001) which
superseded COA Circular No. 85-156-B, defines
disallowance as “the disapproval in audit of a
transaction, either in whole or in part.”
Section 19, id. See also Section 14 of the Manual
on Certificate of Settlement and Balances
(Revised 1993).
Section 2r, id. Under Section 3.18 of the Manual
on Certificate of Settlement and Balances
(Revised 1993), a suspension is “the deferment of
action to allow or disallow in audit a transaction
pending compliance with certain requirements.”
Section 21, id. See also Section 16, Manual on
Certificates of Settlement and Balances (Revised
1993).
Cf. Ramos vs. Aquino, 39 SCRA 585 (1971).
Olivarez vs. Sandiganbayan, 248 SCRA 700
(1995); Ocampo III vs. Sandiganbayan, 236 SCRA
1 (1994).
Bienvenido Tan, Jr., vs. The Honorable
Sandiganbayan (Third Division), G.R. No. 128764,
10 July 1998; Rene Knecht and Cristina de Knecht
vs. Hon. Aniano A. Desierto, as Ombudsman, et
al., G.R. No. 121916, 26 June 1998; Leonila
Garcia-Rueda vs. Wilfred L. Pacasio et al., G.R. No.
118141, 5 September 1997; Camanag vs.
Guerrero, 268 SCRA 473 (1997); Paredes vs.
Sandiganbayan, 252 SCRA 659 (1996); Olivarez
vs. Sandiganbayan, supra, note 15.
 Annie Tan vs. The Office of the Ombudsman, et
al., G.R. Nos. 114332 &114895, September 10,
1998.
228 SCRA 718 (1995).
Entitled “An Act to Strengthen the Functional
and Structural Organization of the
Sandiganbayan, amending for that Purpose
Presidential Decree No. 1606 , as amended."
Entitled “Revising Presidential Decree No. 1486
Creating A Special Court to be known as
“Sandiganbayan” and for Other Purposes,”
promulgated 10 December 1978.
Entitled “Amending the Pertinent Provisions of
Presidential Decree No. 1606 and Batas
Pambansa Blg. 129 Relative to the Jurisdiction of
the Sandiganbayan and for other purposes,”
promulgated 23 March 1983.
249 SCRA 212 (1995).
Anti-Graft and Corrupt Practices Act.
Entitled, “An Act Declaring Forfeiture in Favor of
the State Any Property Found to Have Been
Unlawfully Acquired by Any Public Officer or
Employee and Providing for the Proceeding
Therefor.”
Article 210, Direct Bribery; Article 211, Indirect
Bribery; and Article 212, Corruption of Public
Officials.
Creating the Presidential Commission on Good
Government.
Regarding the Funds, Moneys, Assets, and
Properties Illegally Acquired or Misappropriated by
Former President Ferdinand E. Marcos, Mrs.
Imelda R. Marcos, Their Close Relatives,
Subordinates, Business Associates, Dummies,
Agents, or Nominees.
Defining the Jurisdiction Over Cases Involving the
Ill-gotten Wealth of Former President Ferdinand E.
Marcos, Mrs. Imelda R. Marcos, Members of Their
Immediate Family, Close Relatives, Subordinates,
Close and/or Business Associates, Dummies,
Agents, and Nominees.
Amending E.O. No. 14.
Introduced by Representatives Garcia (P.),
Starke, Damasing, Apostol, Abueg, Abaya, Sator,
Panes and other members of the House of
Representatives Committee on Justice.
An Act Prescribing A Revised Compensation and
Position Classification System in the Government
and Other Purposes. R.A. No. 6758 went into
effect on July 1, 1989 per Section 23 thereof.
A Decree Revising the Position Classification and
Compensation Systems in the National
Government, and integrating the same.
Section 3h, P.D. No. 985.
“Salary Grade” is “the numerical place on the
Salary Schedule representing multiple steps or
rates which is assigned to a class.” (Section 2s,
P.D. No. 985.)
GRADE 33 – This Grade is assigned to the
President of the Republic of the Philippines as the
highest position in the government. No other
position in the government service is considered
to be of equivalent rank.
GRADE 32 – This Grade is limited to the Vice
President of the Republic of the Philippines and
those positions which head the Legislative and
Judicial Branches of the government, namely: the
Senate President, Speaker of the House of
Representatives and Chief Justice of the Supreme
Court. No other positions in the government
service are considered to be of equivalent rank.
GRADE 31 – This Grade is assigned to Senators
and members of the House of Representatives
and those with equivalent rank as follows: the
Executive Secretary, Department Secretary,
Presidential Spokesman, Ombudsman, Press
Secretary, Presidential Assistant with Cabinet
Rank, Presidential Adviser, National Economic and
Development Authority Director General, Court of
Appeals Presiding Justice, Sandiganbayan
Presiding Justice, Secretary of the Senate,
Secretary of the House of Representatives, and
President of the University of the Philippines.
An entity with a broad functional scope of
operations and wide area of coverage ranging
from top level policy formulation to the provision
of technical and administrative support to the
units under it, with functions comparable to the
aforesaid positions in the preceding paragraph,
can be considered organizationally equivalent to a
Department, and its head to that of a Department
Secretary.
GRADE 30 – Positions included are those of
Department Undersecretary, Cabinet
Undersecretary, Presidential Assistant, Solicitor
General, Government Corporate Counsel, Court
Administrator of the Supreme Court, Chief of Staff
of the Office of the Vice-President, National
Economic and Development Authority Deputy
Director General, Presidential Management Staff
Executive Director, Deputy Ombudsman,
Associate Justices of the Court of Appeals,
Associate Justices of the Sandiganbayan, Special
Prosecutor, University of the Philippines Executive
Vice-President, Mindanao State University
President, Polytechnic University of the Philippines
President and President of other state universities
and colleges of the same class.
Heads of councils, commissions, boards and
similar entities whose operations cut across
offices or departments or are serving a sizeable
portion of the general public and whose coverage
is nationwide or whose functions are comparable
to the aforecited positions in the preceding
paragraph, may be placed at this level.
The equivalent rank of positions not mentioned
herein or those that may be created hereafter
shall be determined based on these guidelines.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 91860 January 13, 1992
ROSEO U. TEJADA and RADITO C. CHING,
petitioners,
vs.
HON. EUFEMIO C. DOMINGO, in his capacity
as Chairman of the Commission on Audit,
respondent.
Brillantes, Nachura, Navarro & Arcilla for
petitioners.
DAVIDE, JR., J.:
In this special civil action for certiorari with
prohibition and mandamus, petitioners urge this
Court to annul and set aside the alleged
"erroneous, arbitrary, wrongful and illegal
interpretation and implementation" 1 by the
respondent Chairman of the Commission on Audit
(COA) of Republic Act. No. 6758, otherwise known
as the Compensation and Position Classification
Act of 1989.
Specifically involved is Section 18 of the Act,
which reads:
Sec.18. Additional Compensation of Commission
on Audit Personnel and Other Agencies. — In
order to preserve the independence and integrity
of the Commission on Audit (COA), its officials and
employees are prohibited from receiving salaries,
honoraria, bonuses, allowances or other
emoluments from any government entity, local
government unit, and government-owned and
controlled corporations, and government financial
institutions, except those compensation paid
directly by the COA out of its appropriations and
contributions.
Government entities including government-owned
or controlled corporations including financial
institutions and local government units are hereby
prohibited from assessing or billing other
government entities, government-owned or
controlled corporations including financial
institutions or local government units for services
rendered by its officials and employees as part of
their regular functions for purposes of paying
additional compensation to said officials and
employees.
The questioned interpretation and implementation
are contained in the memorandum of the
respondent dated 24 August 1989, the pertinent
portion of which reads:
. . . Thus effective July 1, 1989, the salaries,
allowances and other emoluments to be received
by COA officials and employees, regardless of
station or assignment, are only those that are
paid directly by COA out of its own appropriations
and contributions.
Henceforth, the continued payment by any other
government entity, whether in the national, local
or corporate sector, to any COA official or
employee of such compensation, including those
incorporated in the computerized payroll, would
no longer have legal basis. Accordingly, in order
not to delay the processing of the salary payroll of
all COA officials and employees for September,
1989, all such additional emoluments will be
deleted in the computation of the said payroll. 2
The genesis of this controversy is not disputed.
Petitioners Roseo U. Tejada and Radito C. Ching
are senior clerks of the COA assigned to the
auditing units of the Philippine National Bank
(PNB) and the Central Bank (CB), respectively.
Before the effectivity of R.A. No. 6758, Tejada's
gross monthly compensation was P3,673.20,
broken down as follows:
basic salary P 1,623.00
cost of living allowance 700.00
bank equity pay 648.00
longevity pay 140.00
amelioration pay 162.00
meal allowance 400.00
—————
P 3,673.20
while Ching's was only P3,134.00, itemized as
follows:
basic salary P 1,623.00
cost of living allowance 700.00
bank equity pay 649.00
amelioration pay 162.00
—————
P 3,134.00
Of the foregoing, only the basic salary and the
cost of living allowance, in the total sum of
P2,323.00, were due each of them as senior clerks
in the COA. The other benefits were voluntarily
given to them by the PNB and the CB,
respectively.
Prior to the enactment of Presidential Decree No.
1445, otherwise known as the Government
Auditing Code of the Philippines, all officials and
employees of the COA, like herein petitioners,
assigned to, inter alia, government-owned or
controlled corporations (GOCCs), received their
salaries, allowances, additional compensation,
emoluments and other fringe benefits directly
from such GOCCs. This practice was not deemed
effective enough to enhance the independence
and protect the integrity of the COA. Thus, with
the end in view of insulating these COA officials
and employees, particularly the auditors, from
unwarranted influence, thereby preserving the
independence and integrity of the COA,
Presidential Decree No. 1445 expressly mandates
that the salaries and other forms of compensation
of the personnel of the COA shall follow a
common position classification and compensation
plan regardless of agency assignment and shall
be subject to P.D. No. 985; and that all officials
and employees thereof, including its
representatives and support personnel, shall be
paid their salaries, emoluments and allowances
directly by the COA out of the latter's
appropriations and contributions, 3 which shall be
considered as part of its operating expenses to be
included in the annual appropriations law, but
funded from the assessments made upon, or from
contributions of the GOCCs. 4 It directs GOCCs to
appropriate in their respective budgets and remit
to the National Treasury an amount at least
equivalent to the appropriation for the salaries
and allowances of the representatives and staff of
the Commission during the preceding fiscal year. 5
The requirement of a common position and
compensation plan did away with the old practice
of agencies concerned determining the number,
compensation and assignment of COA
representatives, which was both chaotic and
unjust. The provision on direct payment by COA of
the salaries and other benefits was designed to
instill institution loyalty. 6
This policy was further strengthened by Executive
Order No. 19 which President Corazon C. Aquino
enacted on 19 June 1986. 7 Sections 2 and 3
thereof provide:
Sec. 2. (as amended by E.O. No. 271). The cost of
audit services rendered to government agencies
by the Commission on Audit shall be covered by
the fund sources provided in Sec. 24 of
Presidential Decree No. 1445 which shall be
incorporated in the national government budget
and included in the Annual General Appropriations
Law: provided, that in the case of government-
owned and/or controlled corporations and its
subsidiaries, the cost of audit services shall be
based on the actual cost of the audit function in
the corporation concerned, plus a reasonable rate
to cover overhead expenses. The actual audit cost
shall include personal services, maintenance and
other operating expenses, depreciation on capital
and equipment and out-of-pocket expenses.
This amount shall be remitted in six equal
installments every sixty days (the first installment
to fall on January l5 of every calendar year) to the
National Treasury by each government
corporation/subsidiary concerned; provided, that
if the operating budgets of the government
corporations/ subsidiary are reduced during the
year as a result of operating fund shortfall or
reduction of its operations, the cost of audit
services previously determined shall be reduced
proportionately. . . .
Sec. 3. All allowances and fringe benefits granted
by government-owned or controlled corporations
to the personnel of the Commission's auditing
units in such corporations shall be directly
defrayed by the Commission from its own
appropriation pursuant to Section 31 of the
General Provisions of the General Appropriations
Act otherwise known as Batas Pambansa Bilang
879.
Thus, the law is clear that the contributions from
the GOCCs are limited to the cost of audit services
which are based on the actual cost of the audit
function in the corporation concerned plus a
reasonable rate to cover overhead expenses. The
actual audit cost shall include personnel services,
maintenance and other operating expenses,
depreciation on capital and equipment and out-of-
pocket expenses. In respect to the allowances and
fringe benefits granted by the GOCCs to the COA
personnel assigned to the former's auditing units,
the same shall be directly defrayed by COA from
its own appropriations pursuant to Section 31 of
the General Provisions of the General
Appropriations Act, otherwise known as Batas
Pambansa Bilang 879. The pertinent portion of
said Section 31 reads as follows:
xxx xxx xxx
Officials and employees on detail with other
offices, including representatives and support
personnel of auditing units assigned to serve
other offices and agencies, shall be paid their
salaries, emoluments, allowances and the
foregoing supplemental compensation, fringe
benefits and other personal services costs from
appropriations of their parent agencies, and in no
case shall such be charged against appropriations
of the agencies where they are assigned or
detailed, except when authorized by law.
This provision was re-stated in the General
Appropriations Acts (GAA) of the succeeding
calendar years. 8
Then came Section 18 of R.A. No. 6758, and its
interpretation and implementation 9 by
respondent which provoked this case.
Disagreeing with the respondent's stand,
petitioners, together with other COA employees,
sent to the former a letter-request 10 dated 27
September 1989, asking that the order for the
deletion from the COA Centralized or Special
Payroll of their allowances, fringe benefits and
other emoluments, be reconsidered, and "be
restored or at least considered in the
determination of their respective compensation
rates as of 1 July 1989, so that they will not suffer
any salary deduction when the standardized
salary rates are finally implemented."
On 27 October 1989, respondent issued another
memorandum 11 denying, in effect, the letter-
request. As a consequence, each of the
petitioners presently receive the reduced salary of
P2,323.00.
Hence, they filed this petition on 7 February 1990.
12
They raise the following issues:
1. Does Section 18 of R.A. No. 6758 require, or
even authorize, the diminution of the gross
compensation of COA personnel which they were
receiving prior to its effectivity, notwithstanding
the provisions of Sections 12 and 17 of the same
law?
2. Were all the salaries, allowances, fringe
benefits and other emoluments which petitioners
were receiving as part of their gross
compensation prior to the effectivity of R.A. No.
6758 "paid directly by the COA out of its
appropriations and contributions" within the
meaning of the exception under Section 18 of the
same law?
and then submit a negative answer to the first,
and an affirmative answer to the second as they
were, and have always been, since the effectivity
of P.D. No. 1445, "paid directly by the COA out of
its appropriations and contributions." 13
We required respondent to Comment on the
petition. 14
Respondent, represented by the Office of the
Solicitor General, filed his Comment on 11 May
1990. 15 He maintains that the real issue to be
resolved is:
Whether or not under R.A. No. 6758 COA
personnel may still be allowed to receive from any
government agency, local or national, including
government-owned or controlled corporations and
government financing institutions, other
allowances, emoluments and fringe benefits over
and above their legally set salaries and
allowances as COA employees.
He then asserts that petitioners are no longer
entitled to the extra allowances and benefits
which they used to receive prior to the effectivity
of R.A. No. 6758 for: (a) they are not entitled as a
matter of right to the additional emoluments they
have been receiving from the agencies to which
they are assigned — such were gratuitously given
by the latter; (b) the extra emoluments from
GOCCs have no legal basis; (c) the additional
allowances created a salary distortion; (d) the
additional allowances do not promote auditing
integrity and independence; (e) GOCCs no longer
pay extra emoluments and have been prohibited
from doing so; and (f) COA personnel assigned to
GOCCs are subject to periodic reshuffling or
reassignment pursuant to Sections 20 (4) and 22
(1) of P.D. No. 1445, hence they do not acquire a
vested right to the additional compensation or
fringe benefits being paid by GOCCs as the
receiving of such would cease upon their
reassignment.
We required the petitioners to file a Reply to the
Comment, 16 which they complied with on 28 June
1990. 17 On 10 July 1990, this Court gave due
course 18 to the petition and required both parties
to simultaneously file their respective
Memoranda, which they complied with.
To Our mind, the respondent presents the proper
issue and a careful scrutiny of the arguments
adduced by the parties would lead Us to no other
conclusion but to sustain the respondent and
dismiss the petition for want of merit.
The two (2) main issues formulated by petitioners
are clearly based on erroneous premises or
assumptions. Petitioners assume that their gross
compensation includes the extra emoluments
given by the GOCCs to which they are assigned,
that Sections 12 and 17 of the Act grant them
vested rights to such extra emoluments and that
they were directly paid by the COA out of its
appropriations and contributions.
There can be no question that Section 18 of
Republic Act No. 6758 is designed to strengthen
further the policy, earlier mandated by the
Government Auditing Code of the Philippines and
then by Executive Order No. 19 (as amended by
Executive Order No. 271), to preserve the
independence and integrity of the COA, by
explicitly PROHIBITING: (1) COA officials and
employees from receiving salaries, honoraria,
bonuses, allowances or other emoluments from
any government entity, local government unit,
GOCCs and government financial institutions,
except such compensation paid directly by the
COA out of its appropriations and contributions,
and (2) government entities, including GOCCS,
government financial institutions and local
government units from assessing or billing other
government entities, GOCCs, government
financial institutions or local government units for
services rendered by the latter's officials and
employees as part of their regular functions for
purposes of paying additional compensation to
said official and employees. While the cited
section uses the word "prohibited," Section 22 of
P.D. No. 1445 does not. No one may successfully
argue against the proposition that a total removal
of the temptation and enticement the extra
emoluments provide would be one effective way
to vigorously and aggressively enforce the
Constitutional provision mandating the COA to
prevent or disallow irregular, unnecessary,
excessive, extravagant, or unconscionable
expenditures, or uses of government funds and
properties. 19 The COA personnel assigned to the
GOCCs who have absolutely nothing to look
forward to or expect from the latter in terms of
extra benefits would have no reason to accord
special treatment to the GOCCs by closing their
eyes to irregular or unlawful expenditures or use
of funds or property, or conducting perfunctory
audit. The law realizes that such extra benefits
could diminish the personnel's seriousness and
dedication in the pursuit of their assigned tasks,
affect their impartiality and provide a continuing
temptation to ingratiate themselves to the GOCCs
or government financial institutions concerned. In
the end then, they would become ineffective
auditors.
Upon the other hand, as correctly contended by
the respondent, Memorandum Order No. 177
rationalizing the compensation structure in
GOCCs and government financial institutions,
issued by the President on 31 May 1988, limits
the grant of extra allowances and fringe benefits
to their officials and employees. Section 2 thereof
reads:
Sec. 2. Allowances of incumbents. — Incumbents
of positions in corporate entities covered by the
Memorandom Order who are presently receiving
additional monthly compensation/fringe benefits
and other emoluments which were continuously
enjoyed for a period of at least 12 months prior to
the effectivity of this Order, including those
authorized solely by their governing boards
effected on or before December 31, 1987, the
aggregate of which exceeds the standardized
rates prescribed pursuant to existing laws, rules
and regulations and ministered by the
Department of Budget and Management, shall
continue to receive such excess allowances,
which shall be referred to as "transition
allowance." The "transition allowance" shall be
correspondingly reduced by the amount of any
salary increase or salary adjustment that the
incumbent shall receive in the future.
The additional compensation, fringe benefits and
other emoluments which may be considered as
"transition allowance" under this Memorandum
Order shall be limited to those which are of
common or general application to all the
personnel of the entities covered under Section 1
hereof.
The Corporate Budget Circular No. 15 issued by
the Secretary of the Department of Budget and
Management on 5 July 1988, to implement the
aforesaid Memorandum Order, pertinently
provides for the coverage and exemption thereof,
thus:
2.0 COVERAGE AND EXEMPTION.
2.1. The provisions of MO No. 177, series of 1988,
shall apply only to officials and employees of
profit-making and financially viable government-
owned or controlled corporations and financial
institutions which are not receiving subsidies, for
any operating expenses from the National
Government.
2.2. Members of the governing boards of any
government-owned or controlled corporation and
financial institution, detailed personnel from other
government agencies/corporations including
personnel of the Commission on Audit (COA) and
Civil Service Commission (CSC) are not covered
by the provisions of said Order. (Emphasis
supplied)
Then, too, among the laws specifically repealed
by R.A. No. 6758 20 is the proviso under Section 2
of P.D. No. 985, which reads:
. . . Provided, that notwithstanding a standardized
salary system established for all employees,
additional financial incentives may be established
by government corporations and financial
institutions for their employees to be supported
fully from their corporate funds and for such
technical positions as may be approved by the
President in critical government agencies.
The foregoing legislative and executive
pronouncements unerringly reveal a two-pronged
strategy to preserve and enhance the
independence and integrity of the COA and make
its personnel loyal to none other except that
institution and beholden to nobody but the people
whose coffers they must guard with dedication
and responsibility.
The first aspect of the strategy is directed to the
COA itself, while the second aspect is addressed
directly against the GOCCs and government
financial institutions. Under the first, COA
personnel assigned to auditing units of GOCCs or
government financial institutions can receive only
such salaries, allowances or fringe benefits paid
directly by the COA out of its appropriations and
contributions. The contributions referred to are
the cost of audit services earlier mentioned which
cannot include the extra emoluments or benefits
now claimed by petitioners. The COA is further
barred from assessing or billing GOCCs and
government financial institutions for services
rendered by its personnel as part of their regular
audit functions for purposes of paying additional
compensation to such personnel. Under the
second, GOCCs and government financial
institutions can no longer rely on Section 2 of P.D.
No. 985; moreover, fringe benefits and other
emoluments in excess of the standardized rates,
which may be continued to be received in the
concept of "transition allowance" under
Memorandum Order No. 177, in relation to
Corporate Budget Circular No. 15 (15 July 1988),
apply only to the officials and employees of profit-
making and financially viable GOCCs and
government financial institutions.
The strategy also promotes and is consistent with
the policy behind R.A. No. 6758, which Section 2
thereof announces:
Sec. 2. Statement of Policies — It is hereby
declared the policy of the State to provide equal
pay for substantially equal work and to base
differences in pay upon substantive differences in
duties and responsibilities, and qualification
requirements of the positions. In determining
rates of pay, due regard shall be given to, among
others, prevailing rates in the private sector for
comparable work. For this purpose, the
Department of Budget and Management (DBM) is
hereby directed to establish and administer a
unified Compensation and Position Classification
System, hereinafter referred to as the System, as
provided for in Presidential Decree No. 985, as
amended, that shall be applied for all government
entities, as mandated by the Constitution.
It goes without saying then that the PNB and the
CB cannot legally and validly continue to grant
Tejada and Ching, respectively, the extra
emoluments in question because these could only
be given to its officials, employees or organic
personnel, subject to Memorandum Order No. 177
and Corporate Budget Circular No. 15. Otherwise
stated, Tejada and Ching cannot legally and
validly receive such extra benefits from the PNB
and the CB, respectively, because not only are
they not organic personnel thereof, but also
because of the express prohibition of Section 18
of R.A. No. 6758.
Petitioners' contention that Sections 12 and 17 of
R.A. No. 6758 authorize their continued receipt of
the extra allowances from the GOCCs to which
they are assigned are patently untenable. These
sections read in full as follows:
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 hosoltal 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.
Existing additional compensation of any national
government official or employee paid from local
funds of a local government unit shall be
absorbed into the basic salary of said official or
employee and shall be paid by the National
Government.
xxx xxx xxx
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 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.
The transition allowance referred to herein shall
be treated as part of the basic salary for purposes
of computing retirement pay, year end bonus and
other similar benefits.
As basis for computation of the first across-the-
board salary adjustment of incumbents with
transition allowance, no incumbent who is
receiving compensation exceeding the
standardized salary rate at the time of the
effectivity of this Act, shall be assigned a salary
lower than ninety percent (90%) of his present
compensation or the standardized salary rate,
whichever is higher. Subsequent increases shall
be based on the resultant adjusted salary.
Section 12 refers to the regular allowances and
compensation which an instrumentality, entity or
agency of the government grants to its organic
personnel. In the case of COA personnel, such
allowances and compensation cannot include
allowances, fringe benefits or extra emoluments,
such as those claimed by petitioners, which are
granted by GOCCs or government financial
institutions because Section 18 of the Act itself
bans the COA personnel from receiving them even
as it also prohibits GOCCs and government
financial institutions from granting such benefits
to personnel of other government
instrumentalities, entities or agencies assigned to
them to perform the regular functions of their
mother units. There is no indication at all that R.A.
No. 6758 has jettisoned the first aspect of the
policy. On the contrary, it has strengthened it. It
would have been absurd and illogical for the law
to impose the prohibition and at the same time
mandate its integration in the standardized salary
rates of the personnel of the COA. In the second
place, the Secretary of the DBM, Hon. Guillermo
Carague, has certified that "other than those
authorized/mandated by law, the allowances,
fringe benefits and other emoluments that were
directly received by COA personnel from the
various government owned and controlled
corporations, including government financial
institutions, to which they are assigned, were not
provided under the regular appropriations of the
Commission in the General Appropriations Act of
1989 and 1990." 21 They were not so provided
because, as discussed above, there was no legal
basis therefor.
Were this Court to accept petitioner's theory, it
would ingraft into the law that which the
legislature never intended and interpret the law in
a manner that defeats or negates its purpose.
Worse, it would compel the PNB and the CB to
conntinue granting petitioners Tejada and Ching,
respectively, the subject extra emoluments thus
writing into the law an exception for the benefit of
COA personnel. This would be judicial legislation,
which We are not prepared to experiment on. The
questioned law is clear enough. Frankly, its
interpretation is not even called for. Neither may
petitioners seek refuge or consolation under
Section 17. Again, the additional compensation or
fringe benefits and other emoluments referred to
therein are those granted by the mother or parent
unit to the incumbents thereof, i.e., the organic
personnel, which include benefits absorbed from
local government units. As correctly observed by
respondent, the law does not mention benefits
absorbed from GOCCs or government financial
institutions. This is so because no such benefit
was intended to be absorbed. On the contrary,
GOCCs and government financial institutions were
prohibited from granting them to non-organic
personnel.
Petitioners, nevertheless, posit the view that
since, in respect to GOCCs and government
financial institutions, the law does not seem to
make a distinction between an incumbent therein
who is an organic personnel thereof and an
incumbent who is a COA personnel assigned to
their auditing units, petitioners must, for purposes
of Section 17, be considered "incumbents" of the
PNB and the CB. They appeal to the rule on
statutory construction that where the law does
not make any distinction, no distinction should be
made. A distinction is not in order for the meaning
of incumbent is not doubtful nor susceptible of
more than one interpretatioin. An incumbent is a
person who is in present possession of an office;
one who is legally authorized to discharge the
duties of an office. 22 An office is a public charge
or employment, an employment on behalf of the
government in any station or public trust, not
merely transient, occasional or incidental. 23 An
incumbent then can only refer to the holder of an
office either by appointment or by election.
Insofar as petitioners were concerned, they are
incumbents of the position to which they have
been appointed — senior clerks of the COA — and
not of the PNB or the CB to which they are merely
temporarily assigned.
The foregoing disquisition renders unnecessary
further discussion on the other points raised by
respondent.
WHEREFORE, for lack of merit, the petition is
DISMISSED with costs against petitioners.
IT IS SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado
and Romero, JJ., concur.
Nocon, J., took no part.
Separate Opinion
GUTIERREZ, JR., J., concurring and dissenting:
I agree with the laudable objectives of Rep. Act
No. 6758 but I believe that it must be
implemented in a more reasonable, humane, and
realistic manner.
The petitioner's problems are symptomatic of the
improvident and uncalculating approach of
Government to the compensation and money
problems of its own employees. Judges are
ordered to stop receiving the allowances given to
them for decades by local governments. And yet,
no provisions are made in the budget to enable
the Supreme Court to replace these allowances
with equivalent amounts and to provide them with
the supplies, telephone, electricity and
maintenance services, and accomodations which
have been furnished by local governments since
the turn of the century. Public school teachers are
given increased salaries by the national
government but, at the same time, the "city
share" which the local governments used to pay is
withdrawn. The salary increases are thus
meaningless inspite of so much publicity and
fanfare given to them.
The two petitioners in this case are clerks. When a
clerk joins the government service, he does so on
the basis of the total compensation package
regularly given for a fairly long period to
occupants of that position. Unlike the chief or
assistant chief auditor, he does not expect to be
shifted from agency to agency. In theory a clerk
joins the COA as a national office but in actuality
he joins the COA Supreme Court, COA Philippine
National Bank, COA Bureau of Prisons, etc. To
suddenly reduce the take home pay which has
been received for many years is cruel and
unnecessary.
If standardization of incomes of all clerks in all
government offices is to be effected no matter
how different the workloads, the confidentiality or
sensitivity of functions, the complexity and
magnitutde of assignments, and the amounts of
funds and properties being checked by the office,
some kind of transition arrangement to equal the
lost income must be provided by the Commission
itself, at the very least.
It is easy to mount arguments in defense of
implementing rules intended to make certain
offices more independent and, supposedly, more
effective. But the arguments become rhetorical,
quixotic, and illusive if they do not take into
account the hardships and sacrifices which
affected personnel, especially rank and file
workers, are compelled to suffer.
I, therefore, regret that I cannot concur with the
majority opinion in its entirety until a more
humane and practical mode of implementation is
devised.
Cruz, J., concurs.
Separate Opinion
GUTIERREZ, JR., J., concurring and dissenting:
I agree with the laudable objectives of Rep. Act
No. 6758 but I believe that it must be
implemented in a more reasonable, humane, and
realistic manner.
The petitioner's problems are symptomatic of the
improvident and uncalculating approach of
Government to the compensation and money
problems of its own employees. Judges are
ordered to stop receiving the allowances given to
them for decades by local governments. And yet,
no provisions are made in the budget to enable
the Supreme Court to replace these allowances
with equivalent amounts and to provide them with
the supplies, telephone, electricity and
maintenance services, and accomodations which
have been furnished by local governments since
the turn of the century. Public school teachers are
given increased salaries by the national
government but, at the same time, the "city
share" which the local governments used to pay is
withdrawn. The salary increases are thus
meaningless inspite of so much publicity and
fanfare given to them.
The two petitioners in this case are clerks. When a
clerk joins the government service, he does so on
the basis of the total compensation package
regularly given for a fairly long period to
occupants of that position. Unlike the chief or
assistant chief auditor, he does not expect to be
shifted from agency to agency. In theory a clerk
joins the COA as a national office but in actuality
he joins the COA Supreme Court, COA Philippine
National Bank, COA Bureau of Prisons, etc. To
suddenly reduce the take home pay which has
been received for many years is cruel and
unnecessary.
If standardization of incomes of all clerks in all
government offices is to be effected no matter
how different the workloads, the confidentiality or
sensitivity of functions, the complexity and
magnitutde of assignments, and the amounts of
funds and properties being checked by the office,
some kind of transition arrangement to equal the
lost income must be provided by the Commission
itself, at the very least.
It is easy to mount arguments in defense of
implementing rules intended to make certain
offices more independent and, supposedly, more
effective. But the arguments become rhetorical,
quixotic, and illusive if they do not take into
account the hardships and sacrifices which
affected personnel, especially rank and file
workers, are compelled to suffer.
I, therefore, regret that I cannot concur with the
majority opinion in its entirety until a more
humane and practical mode of implementation is
devised.
Cruz, J., concurs.
Footnotes
1 Rollo, 2.
2 Rollo, 20.
3 P.D. No. 1445, pars. 2 and 3, Section 22.
4 Id., par. 1, Section 24.
5 Id., par. 2, Id.
6 TANTUICO, JR., F.S., State Audit Code
Philippines, 1982 ed., 185-186.
7 Amended later by Executive Order No. 271,
promulgated on 25 July 1987.
8 Third paragraph of Section 27, GAA of 1987
(Executive Order No. 87); Section 24, GAA of 1988
(R.A., No. 6642); Section 25, GAA of 1989 (R.A.
No. 6688); Section 31, GAA of 1990 (R.A. No.
6831); and Section 33, GAA of 1991 (R.A. No.
7078).
9 Rollo, 20-21.
10 Id., 22-28.
11 Id., 29-30.
12 Id., 2.
13 Rollo, 10-11.
l4 Id., 31.
15 Id., 41.
16 Rollo, 31.
17 Id., 34.
18 Id., 48.
19 Section 2 (2), Articie IX-D, 1987 Constitution.
20 Section 16 reads:
Repeal of Special Salary Laws and Regulations. All
laws, decrees, executive orders, corporate
charters, and other issuances or parts thereof,
that exempt agencies from the coverage of the
System, or that authorize and fix position
classification, salaries, pay rates or allowances of
specified positions, or groups of officials and
employees or of, agencies which the System,
including the proviso under Section 2 and Section
16 of Presidential Decree No. 985 are hereby
repealed.
21 Letter of Secretary Carague dated 24 August
1990, marked asAnnex "B" of respondent's
Memorandum, 121.
22 Black's Law Dictionary, Fifth ed,, 691.
23 Id., 976.
EN BANC
[G.R. No. 139792. November 22, 2000]
ANTONIO P. SANTOS, petitioner, vs. THE
HONORABLE COURT OF APPEALS, METROPOLITAN
AUTHORITY, now known as METROPOLITAN
MANILA DEVELOPMENT AUTHORITY, and THE
CIVIL SERVICE COMMISSION, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari petitioner
assails the decision of 19 August 1999 of the
Court of Appeals in CA-G.R. SP No. 48301, which
held that petitioner’s separation pay under
Section 11 of R.A. No. 7924 should be limited to
the number of years of his service in the
Metropolitan Manila Authority (MMA) only,
excluding his years of service as judge of the
Metropolitan Trial Court (MeTC) of Quezon City for
which he has already been given retirement
gratuity and pension.
The undisputed facts are as follows:
On 18 January 1983, petitioner was appointed
Judge of the MeTC of Quezon City, and he
thereafter assumed office. After the military-
backed EDSA revolt, petitioner was reappointed to
the same position.
On 1 April 1992, petitioner optionally retired from
the Judiciary under R.A. No. 910, as amended, and
received his retirement gratuity under the law for
his entire years in the government service; and
five years thereafter he has been regularly
receiving a monthly pension.
On 2 December 1993, petitioner re-entered the
government service. He was appointed Director
III of the Traffic Operation Center of the MMA. His
appointment was approved by the Civil Service
Commission (CSC).
On 1 March 1995, Congress enacted R.A. No.
7924, which reorganized the MMA and renamed it
as Metropolitan Manila Development Authority
(MMDA). Section 11 thereof reads:
Section 11. Transitory Provisions. – To prevent
disruption in the delivery of basic urban services
pending the full implementation of the MMDA’s
organizational structure and staffing pattern, all
officials and employees of the interim MMA shall
continue to exercise their duties and functions
and receive their salaries and allowances until
they shall have been given notice of change of
duties and functions, and of being transferred to
another office or position.
...
The civil service laws, rules and regulations
pertinent to the displacement of personnel
affected by this Act shall be strictly enforced. The
national government shall provide such amounts
as may be necessary to pay the benefits accruing
to displaced employees at the rate of one and
one-fourth (1¼) month’s salary for every year of
service: Provided, That, if qualified for retirement
under existing retirement laws, said employees
may opt to receive the benefits thereunder.
On 16 May 1996, the President of the Philippines
issued Memorandum Order No. 372 approving the
Rules and Regulations Implementing R.A. No.
7924. Pursuant thereto, the MMDA issued
Resolution No. 16, series of 1996, which, inter
alia, authorized the payment of separation
benefits to the officials and employees of the
former MMA who would be separated as a result
of the implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a
Memorandum to petitioner informing him that in
view of his “voluntary option to be separated from
the service” his services would automatically
cease effective at the close of office hours on 15
September 1996, and that he would be entitled to
“separation benefits equivalent to one and one-
fourth (1¼) monthly salary for every year of
service as provided under Section 11 of the MMDA
Law.”
In view of some doubt or confusion as to the
extent of his separation benefits, petitioner
submitted a Position Paper wherein he asserted
that since the retirement gratuity he received
under R.A. No. 910, as amended, is not an
additional or double compensation, all the years
of his government service, including those years
in the Judiciary, should be credited in the
computation of his separation benefits under R.A.
No. 7924. The Assistant Manager for Finance of
the MMDA referred the Position Paper to the
Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of
the CSC-NCR handed down an opinion that the
payment of petitioner’s separation pay must be in
accordance with Civil Service Resolution No. 92-
063, pertinent portions of which read:
[T]he payment of separation/[retirement] benefits
cannot be subject to the prohibition against the
[sic] double compensation in cases when officers
and employees who were previously granted said
benefits are rehired or reemployed in another
government Agency or Office. Thus, there is no
need for separated employees to refund the
separation/retirement benefits they received
when subsequently reemployed in another
government agency or office.
… This being so, while an employee who was paid
separation/retirement benefits is not required to
refund the same once reemployed in the
government service, as aforestated, for reasons of
equity however, it would be proper and logical
that said separation/retirement benefits should
nevertheless be deducted from the retirement/
[separation] pay to be received by the employee
concerned. Moreover, in this instance, the
employee concerned has the option either to
refund his separation/retirement benefits and
claim his gross retirement/separation pay without
any deduction corresponding to his separation
pay received, or not [to] refund his
separation/retirement pay but suffer a deduction
of his retirement/separation gratuity for the total
amount representing his previous
separation/retirement pay received.
His motion for reconsideration having been
denied, petitioner elevated the opinion of Director
Acebedo to the CSC.
On 21 October 1997, the CSC promulgated
Resolution No. 97-4266 affirming the opinion of
Director Acebedo and dismissing petitioner’s
appeal. Citing Chaves v. Mathay, it held that
petitioner cannot be paid retirement benefits
twice – one under R.A. No. 910, as amended, and
another under R.A. No. 7924 – for the same
services he rendered as MeTC Judge. He can only
exercise one of two options in the computation of
his separation pay under R.A. 7924. These
options are (1) to refund the gratuity he received
under R.A. No. 910, as amended, after he retired
from the MeTC and get the full separation pay for
his entire years in the government, that is 9 years
and 2 months with the MeTC plus two (2) years
and eight (8) months for his services as Director
III in the defunct MMA, at the rate of one and one-
fourth salary for every year of service pursuant to
MMDA Memorandum dated 30 August 1996; or (2)
to retain the gratuity pay he received for his
services as MeTC Judge but an equivalent amount
shall be deducted from the separation benefits
due from the former MMA for his entire
government service.
On 9 June 1998, the CSC promulgated Resolution
No. 98-1422 denying petitioner’s motion for
reconsideration. Accordingly, petitioner filed with
the Court of Appeals a petition to set aside these
Resolutions.
On 19 August 1999, the Court of Appeals
promulgated its decision, now challenged in this
case. It held that the CSC was “correct in
dismissing petitioner’s appeal from the opinion of
Director Acebedo.” It ratiocinated as follows:
There is no specific rule of law which applies to
petitioner’s case. Nevertheless, the Court finds it
equitable to deny his claim for payment of
separation pay at the rate of one and one-fourth
(1¼) month’s salary for every year of his service
in government, that is, inclusive of the number of
years he served as Judge of the Metropolitan Trial
Court of Manila [sic].
Petitioner already received and is continually
receiving gratuity for his years of service as a
Metropolitan Trial Court Judge. Equity dictates
that he should no longer be allowed to receive
further gratuity for said years of service in the
guise of separation pay.
Suffice it to state that upon his retirement from
his office as a Judge, petitioner has already closed
a chapter of his government service. The State
has already shown its gratitude for his services
when he was paid retirement benefits under
Republic Act No. 901 [sic]. For that is what
retirement benefits are for. Rewards [are] given
to an employee who has given up the best years
of his life to the service of his country (Gov’t.
Service Insurance System v. Civil Service
Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude
to petitioner by awarding him separation pay for
his services as a director of the Metro Manila
Authority (MMA), another chapter of petitioner’s
government service which has come to a close by
the reorganization of the MMA into the
Metropolitan Manila Development Authority.
The Court, in limiting the computation of
petitioner’s separation pay to the number of years
of his service at the MMA, merely is implementing
the ruling in “Chavez, Sr. vs. Mathay” (37 SCRA
776), which ruling, if not actually in point, is
nevertheless applicable owing to its “common-
sense consideration.” Said ruling reads:
“The ‘common-sense consideration’ stated by Mr.
Justice J.B.L. Reyes for the Court in Espejo, that if
a retiree is being credited with his years of service
under his first retirement in computing his
gratuity under his second retirement, it is but just
that the retirement gratuity received by him
under his first retirement should also be charged
to his account, manifestly govern the case at bar.
It is but in accordance with the rule consistently
enunciated by the Court as in Anciano v. Otadoy,
affirming Borromeo, that claims for double
retirement or pension such as petitioner’s, ‘would
run roughshod over the well-settled rule that in
the absence of an express legal exception,
pension and gratuity laws should be so construed
as to preclude any person from receiving double
pension.’ (p. 780, underscoring supplied)
The case at bench is not, strictly speaking, about
‘double pension.’ It is, however, about the
interpretation of a gratuity law, viz., Section 11 of
Republic Act No. 7924 which awards separation
pay to those government employees who were
displaced by the reorganization of the MMA into
the MMDA, which should be construed to preclude
a government employee from receiving double
gratuity for the same years of service.
We affirm the assailed judgment. We agree with
the Court of Appeals and the Civil Service
Commission that for the purpose of computing or
determining petitioner’s separation pay under
Section 11 of R.A. No. 7924, his years of service in
the Judiciary should be excluded and that his
separation pay should be solely confined to his
services in the MMA.
In the first place, the last paragraph of Section 11
of R.A. No. 7924 on the grant of separation pay at
the rate of “one and one-fourth (1¼) months of
salary for every year of service” cannot by any
stretch of logic or imagination be interpreted to
refer to the total length of service of an MMA
employee in the government, i.e., to include such
service in the government outside the MMA.
Since it allows the grant of separation pay to
employees who were to be displaced thereby the
separation pay can be based only on the length of
service in the MMA. The displacement amounted
to an abolition of the office or position of the
displaced employees, such as that of petitioner.
The rule is settled that Congress may abolish
public offices. Such a power is a consequent
prerogative of its power to create public offices.
However, the power to abolish is subject to the
condition that it be exercised in good faith. The
separation partook of the nature of a disturbance
of compensation; hence, the separation pay must
relate only to the employment thus affected.
Second, petitioner himself must have realized that
Section 11 does not allow the tacking in of his
previous government service. If he were
convinced that it does he could have instead
applied for retirement benefits, since by adding
his years of service in the MMA to his previous
years of service in the Government he could have
retired under the third paragraph of Section 11,
which pertinently reads:
Provided, That, if qualified for retirement under
existing retirement laws, said employee may opt
to receive the benefits thereunder.
Third, after the approval of his optional retirement
on 1 April 1992, petitioner was fully paid of his
retirement gratuity under R.A. No. 910, as
amended; and five years thereafter he has been
receiving a monthly pension.
The petitioner cannot take refuge under the
second paragraph of Section 8 of Article IX-B of
the Constitution, which provides:
Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.
This provision simply means that a retiree
receiving pension or gratuity can continue to
receive such pension or gratuity even if he
accepts another government position to which
another compensation is attached.
Indeed, the retirement benefits which petitioner
had received or has been receiving under R.A. No.
910, as amended, do not constitute double
compensation. He could continue receiving the
same even if after his retirement he had been
receiving salary from the defunct MMA as Director
III thereof. This is but just because said
retirement benefits are rewards for his services as
MeTC Judge, while his salary was his
compensation for his services as Director III of the
MMA.
However, to credit his years of service in the
Judiciary in the computation of his separation pay
under R.A. No. 7924 notwithstanding the fact that
he had received or has been receiving the
retirement benefits under R.A. No. 910, as
amended, would be to countenance double
compensation for exactly the same services, i.e.,
his services as MeTC Judge. Such would run
counter to the policy of this Court against double
compensation for exactly the same services. More
important, it would be in violation of the first
paragraph of Section 8 of Article IX-B of the
Constitution, which proscribes additional, double,
or indirect compensation. Said provision reads:
No elective or appointive public officer or
employee shall receive additional, double, or
indirect compensation, unless specifically
authorized by law… .
Section 11 of R.A. No. 7924 does not specifically
authorize payment of additional compensation for
years of government service outside of the MMA.
WHEREFORE, finding no reversible error in the
judgment appealed from, the petition in this case
is DENIED for want of merit, and the decision of
19 August 1999 of the Court of Appeals in CA-G.R.
SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ.,
concur.
Rollo, 31-41. Per Barcelona, R., J., with Demetria,
D., and Gozo-Dadole, M., JJ., concurring.
Not R.A. No. 901 as stated in the challenged
decision of the Court of Appeals (Rollo, 31), or
R.A. No. 601 as stated in Resolution No. 97-4266
of the Civil Service Commission (Rollo, 50 and
52). R.A. No. 910, as amended, was further
amended by R.A. No. 5095 and P.D. No. 1438.
37 SCRA 776 [1971].
Manalang v. Quitoriano, 94 Phil. 903 [1954];
Rodriguez v. Montinola, 94 Phil. 964 [1954];
Castillo v. Pajo, 103 Phil. 515 [1958]; Ulep v.
Carbonell, 4 SCRA 375 [1962]; Llanto v.
Dimaporo, 16 SCRA 599 [1966]; Canonizado v.
Aguirre, G.R. No. 133132, 25 January 2000.
Cruz v. Primicias, 23 SCRA 998 [1968];
Canonizado v. Aguirre, supra.
II JOAQUIN BERNAS, THE CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES (A Commentary)
341 (1988 ed.).
Espejo v. Auditor General, 97 Phil. 216 [1955];
Borromeo v. GSIS, 110 Phil. 1 [1960]; Anciano v.
Otadoy, 27 SCRA 200 [1969]; Chavez v. Mathay,
supra note 3.