Contents

Tapales vs UP.............................................................................................................. 1
Mangubat vs. Osmea, 105 Phil. 1308.......................................................................4
Marinduque vs Secretary............................................................................................ 4

Tapales vs UP
G.R. No. L-17523

March 30, 1963

RAMON
vs.
THE PRESIDENT and BOARD OF
PHILIPPINES, respondents-appellants.

TAPALES, petitioner-appellee,
REGENTS

OF

THE

UNIVERSITY

OF

THE

Francisco
Carreon
for
petitioner-appellee.
Office of the Solicitor General, Jose A. Espiritu and Vicente Abad Santos for respondents-appellants.
PAREDES, J.:
Ramon Tapales, petitioner-appellee herein, was, prior to December 5, 1945, a duly appointed
Director of the Conservatory of Music of Silliman University in Dumaguete. On December 5, 1945,
by a resolution of the Board of Regents, upon recommendation of the President of the University of
the Philippines, he was appointed Acting Director of the Conservatory of Music of the UP. Because of
the requirement of the UP Charter (Sec. 10), providing that deans or directors are to be selected
from among the members of the faculty, Tapales was on the same date (Dec. 5, 1945), extended an
appointment as professor of violin and chamber music. Such appointment (as professor) was also
necessary for salary rating purposes. On August 14, 1947, likewise by resolution of the Board of
Regents, Tapales was appointed permanent and regular Director of the UP Conservatory of Music.
With the view of increasing his salary to an amount befitting his new status, as regular and
permanent Director, and for salary rating purposes, other appointments increasing his salary as
professor of violin and chamber music from P4,800.00 in 1947 to P7,560.00 in 1956, were extended
to him (Exhs. 2-6).
Under date of October 2, 1959, the Board of Regents of the UP approved the following resolution
Tenure of office, duties and functions of deans and directors
The term of office of all deans of colleges and directors or heads of schools and institutes of
the University of the Philippines shall be five (5) years from the date of their appointment;

and the present deans and directors who have served five (5) years or more, previous to the
approval of this resolution, shall continue to serve in such capacities, only until May 31,
1960, unless reappointed for another term of five years.
The functions of the dean or director shall be to act as presiding officer of the faculty of the
college, the school, or the institute as prescribed by the charter of the University and to
exercise such other administrative duties which the Board of Regents, on recommendation
of the President of the University may prescribe. No dean or director shall serve as academic
head of any department or division in his college, school or institute.
On April 18, 1960, respondent-appellant President of the UP, promulgated the following
MEMORANDUM
Deans
University of the Philippines

TO
and

Directors

Deans and directors whose terms will expire on May 31, 1960, as provided in the resolution
of the Board of Regents of October 2, 1959, are hereby informed that unless notified of the
action of this office recommending their reappointment on or before May 1, 1960, shall
consider their term as deans automatically terminated on May 31, 1960, but shall remain
members of the faculty with the rank that they are actually holding on the date of this notice.
You are advised of the resolution of the Board of Regents adopted in its meeting of April 12,
1960, which runs as follows:
Starting with the new deans and directors, every dean shall be entitled to only one
salary which shall be the salary in the regular scale of his rank as faculty member,
except when a higher salary is expressly provided for him by reason of superior
qualifications. The dean shall be entitled to reduce the number of his teaching hours
at his discretion.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of facts.
1wph1.t

Tapales, not having been recommended for reappointment as Director of the Conservatory of Music
of the UP, and the termination of his appointment as such being imminent, presented to the CFI of
Rizal, Quezon City Branch, a petition asking that the Resolution of the Board of Regents of the UP
dated October 2, 1959, be declared unconstitutional and that the UP President and Board of
Regents, respondents herein, be prohibited from enforcing the resolution of October 2, 1959.
Tapales further asked for the issuance of a writ of preliminary injunction to restrain said respondents
from carrying out and enforcing the Resolution and implementing the Memorandum of April 18,
1960, from removing him from the position of Director of the Conservatory of Music and from
appointing any other person to replace him. The petition was given due course, and the writ of
preliminary injunction prayed for was issued. Respondents, answering, after the usual ADMISSIONS
and DENIALS, alleged as Special and Affirmative Defenses, that the Director or Dean in the

University of the Philippines performs administrative functions and not academic, that he holds office
at the pleasure of the Board of Regents and can be removed without cause and without hearing; that
what is protected by the Constitution and the Civil Service Law is his position as member of the
academic faculty (professors and members of the teaching staff), not as member of the
administrative staff; that under the resolution in question, petitioner remains and continues to be a
professor and member of the academic faculty; that the UP Charter (Sec. 6 [e]), refers to faculty and
employees and not to Deans or Directors and that petitioner had not exhausted the administrative
remedies. In connection with the writ of preliminary injunction ex parte, the respondents claimed it
should not have been issued because the resolution is presumed valid; petitioner will not suffer
irreparable injury by the enforcement of the resolution in question; that refusal of petitioner to comply
with the resolution is a defiance of the duly constituted authorities and the stay of enforcement of the
resolution will cause injury to the administrative policies of the University which can not be
compensated permanently. A prayer for the dissolution of the writ of preliminary injunction and the
dismissal of the petition was invoked by respondents. After trial, the lower court rendered judgment,
the pertinent portions of which read
... IN VIEW OF THE ABOVE CONSIDERATIONS, the Court renders judgment one in favor of
the petitioner, Ramon Tapales and against the respondents, the President and Board of
Regents of the University of the Philippines, by declaring the Resolution of October 2, 1959,
NULL and VOID, being contrary to the Constitution, the Civil Service Law of 1959 and even
to the Charter of the University concerned and, consequently, the Court permanently
prohibits and enjoins the respondents from enforcing the same, inasmuch as there was a
preliminary injunction previously issued, the same is therefore made permanent as against
the respondents, but without costs.
Respondents appealed directly to this Court, assigning five (5) errors, allegedly committed by the
lower court, all of which can be consolidated into the following issues:
(1) Whether or not the Board of Regents of the University of the Philippines has the power under the
Charter of said University, to fix the terms of office of deans and directors to five years; and (2)
Assuming arguendo that it has that power, whether or not its resolution can be given retroactive
effect, so as to limit to five years the terms of office of such deans and directors who had been
appointed in a permanent capacity before the passage of the resolution.
For the purposes of this opinion, it would seem that the resolution of the second question is decisive.
For, assuming, in gratia argumenti, that the UP Board of Regents has the power to limit the terms of
office of deans or directors, such limitation can not affect deans or directors who had been appointed
in a permanent capacity before the passage of the resolution in question, such as the case of
appellee Director Ramon Tapales.
A dean or a director is embraced in the non-competitive or unclassified civil service (Art. XII,
Constitution, sec. 8, sec. 5(e) ; Rep. Act No. 2260, Philippine Civil Service Law). As such, he is
protected against removal or suspension except for cause, as provided by law and after due process
(Art. XI, sec. 4, Constitution; section 694, Rev. Adm. Code; Sec. 32, Rep. Act No. 2260, Civil Service
Act of 1959). The constitutional and statutory guaranty of security of tenure is extended to both those
in the classified and unclassified civil service (Lacson v. Romero, G.R. No. L-3081, Oct. 14, 1949;

Garcia v. Lejano, L-12220, Aug. 8, 1960). The cause must naturally have same relation to the
character or fitness of the officer or the employee, for the discharge of the functions of his office. To
apply the resolution of the Board of Regents of October 2, 1959, to Director Tapales who had been
appointed in a permanent capacity prior to the passage of the resolution, would result in his removal
without cause. Without any reason whatsoever relating to his character and fitness for his office, his
term of office is cut short, when it should continue during good behaviour. To shorten the term of a
dean or director, officer or any employee, for that matter, when at the time of his appointment, he
knew he would hold office during good behaviour or, at least, he was made to understand in virtue of
his selection or appointment, that he would hold office during good behaviour, amounts to a plain
and simple removal without cause, and without hearing or investigation. No officer or employee in
the Civil Service shall be removed or suspended except for cause as provided by law (Lacson v.
Romero, et al., 47 Off. Gaz., 1778, 1785).
In view of the conclusions reached, we deem it unnecessary and irrelevant to discuss and determine
the first issue.
It is contended in this connection, that the appellee failed to exhaust his administrative remedies by
not asking the Board of Regents to reconsider the challenged resolution before bringing the matter
to court. An administrative review is not a condition precedent to judicial relief against a statute or
ordinance which is claimed to be unconstitutional and void (73 C.J.S. 357), or where the question in
dispute is purely a legal one, and nothing of an administrative nature is to be or can be done (73
C.J.S. 354). Here, appellee impugned the constitutionality and validity of the Resolution of October
2, 1959, and appellee's objection thereto is a purely legal one.
IN VIEW HEREOF, the appellants are hereby permanently restrained from enforcing the resolution
of October 2, 1959, against the herein appellee Ramon Tapales, and others similarly situated and
affected, with costs against the appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Dizon and
Makalintal, JJ., concur.

Mangubat vs. Osmea, 105 Phil. 1308

Marinduque vs Secretary
G.R. No. L-15982

May 31, 1963

MARINDUQUE
IRON
MINES
AGENTS,
INC., petitioner-appellant,
vs.
THE SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, respondent-appellee.
Catral
and
Reyes
Office of the Solicitor General for respondents-appellees.
MAKALINTAL, J.:

for

petitioner-appellant.

Appellant's petition for certiorari in the Court of First Instance of Manila was dismissed for lack of
cause of action, on the ground that petitioner had not exhausted the administrative remedy available
to him, namely, appeal to the President from the decision of respondent Secretary of Public Works
and Communications. The events which gave rise to that petition are stated in the order of dismissal
dated July 30, 1959, as follows:
It appears from the allegations of the petition that the petitioner was denounced before the
Port and Harbor Board, Manila, for making certain constructions near the mouth of Calat-an
Creek in Sipalay, Negros Occidental; that on September 11, 1958, petitioner was served with
copy of the charges filed against it by two investigators of respondent Secretary of Public
Works and Communications who conducted an investigation of said charges; that on the
basis of this investigation, respondent Secretary rendered a decision dated January 16, 1959
ordering the petitioner herein to remove the causeway illegally constructed at the mouth of
the Calat-an River and restore the bed of said river to its original condition within thirty days
from receipt of copy of the decision, otherwise, the removal shall be effected by the
government at the expense of herein petitioner. Without appealing the decision of the
respondent Secretary to the President, herein petitioner has filed with this Court the present
petition for certiorari seeking that the decision of respondent be annulled.
The order of dismissal was issued after a preliminary hearing on the question of whether or not an
appeal to the President should first have been taken. It is the same question now raised before us.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove
their case not covered by this stipulation of facts.
1wph1.t

Respondent's action ordering petitioner-appellant to remove the causeway constructed by it at the

mouth of the Calat-an River was based on Republic Act No. 2056, sections 2 and 3 of which provide:
SEC. 2. When it is found by the Secretary of Public Works and Communications, after due
notice and hearing, that any dam, dike or any other works . . . encroaches into any public
navigable river, stream, coastal waters and any other public navigable waters or waterways, .
. . he shall have the authority to order the removal of any such works and shall give the party
concerned a period not to exceed thirty days for the removal of the
same: . . . Provided, further, That should the party concerned fail to comply with the order of
the Secretary of Public Works and Communications within the period so stated in the order,
such removal shall be effected by the Secretary of Public Works and Communications at the
expense of said party within ten days following, the expiration of the period given the party
concerned: Provided, furthermore, That the investigation and hearing to be conducted by the
Secretary of Public Works and Communications under the section shall be terminated and
decided by him within a period which shall not exceed ninety days from the time he shall
have been notified in writing or a written complaint shall have been filed with him by any
interested party apprising him of the existence of a dam, dike or any other works and that
encroaches into any public navigable river, streams, coastal waters or any other public
waters or waterways . . .: Provided,still furthermore, That the failure on the part of the
Secretary of Public Works and Communications without justifiable or valid reason to
terminate and decide a case or effect the removal of any such works, as provided for in this
Section, shall constitute an offense punishable under section three of this
Act . . . .
SEC. 3. Any person who shall violate the provisions of this Act or who shall fail to comply
with a lawful order of the Secretary of Public Works and Communications within the period

given him in the said order for the removal of any works, shall be punished by imprisonment
of not less than six months or more than six years and a fine of not less than five hundred
pesos or more than six thousand pesos. In the case of any Secretary of Public Works and
Communications, in addition to the fine and imprisonment herein provided, he shall suffer the
penalty of perpetual absolute disqualification to hold any office.
Nowhere in the foregoing provisions, or in any other part of Republic Act No. 2056, is it required that
appeal to the President should precede recourse to the courts. The silence of the statute, to be sure,
does not mean the President may not review the action of the Secretary. His power to do so is
implicit in his constitutional power of control of all the executive departments (Section 10, par. 1, Art.
VII of the Constitution). This, however, does not resolve the issue, which is not whether petitioner
could have appealed to the President but whether he should have done so before seeking judicial
relief. The answer depends, in turn, upon whether an appeal to the President would have been
sufficiently effective, adequate and expeditious, a negative finding in this respect being the basis on
which the extraordinary writ of certiorari, as prayed for by petitioner, may be issued.
Section 2 of Republic Act No. 2056, it may be noted, prescribes three peremptory periods: (1) not
more than thirty days for the party concerned to remove the illegal construction, counted from the
date the Secretary of Public Works and Communications gives the order to that effect; (2) ten days
following the expiration of the thirty-day period for the Secretary to carry out the removal in case the
party concerned has not complied with the directive; and (3) ninety days within which the
investigation and hearing to be conducted by the Secretary under the said Section should be
terminated, counted from notice to him, by complaint or otherwise, of the existence of illegal
construction that should be removed. What is more, failure of the offending party to comply with the
order of removal within the time given to him is punishable as a criminal offense. So is failure on the
part of the Secretary of Public Works and Communications "without justifiable or valid reason to
terminate and decide a case or effect the removal of any such works, as provided in this Section
(2)."
The absence of an express provision in Republic Act No. 2056 for an appeal to the President from
the decision of the Secretary, considered together with the peremptory character of the periods
therein prescribed, shows such an appeal assuming that it may be taken in view of the
President's constitutional power of executive control would not affect the inexorable requirement
that those periods be observed, the only exception being in favor of the Secretary, if there is
justifiable or valid reason for his failure or delay to terminate and decide a case or effect of removal
of the illegal construction, such as, for instance, an injunction issued by a court.
The view of the executive department on this point, as expressed by the Secretary of Justice in his
opinion No. 249, s. 1958, coincides with ours. He said:
The above law was evidently enacted to provide for an effective and expeditious manner of
removing illegal obstruction on public waterways. Not only is the Secretary of Public Works
and Communications required to investigate fluvial obstructions but is in terms required to
finish the investigation within a prescribed period. And upon failure of an errant builder of a
dam or dike to comply with an order of removal, the Secretary is specifically directed to
cause the execution of his decision. Failure on the part of the latter, without justifiable or valid
reason, to decide a case or effect the removal of illegal constructions within the time
prescribed by the statute is made a criminal offense.
It is to be noted that the law does not provide for an administrative appeal. But even
assuming that such appeal is legally authorized, in the face of the unmistakable legislative
policy disclosed by the quoted statute, I am inclined to the view that an appeal to the

President from a decision of the Secretary of Public Works and Communications, does not in
the meantime stay the execution of the appealed decision.
Nevertheless, in order to afford the aggrieved party ample opportunity to secure judicial
intervention before a demolition order is carried out, it is thought advisable that said party in
every case be given reasonable notice of the date when the demolition shall be effected.
We are of the opinion that an appeal to the President from the order of respondent Secretary would
not have been expeditious enough for petitioner's purpose, and hence the latter did not have to
resort to it before seeking judicial relief. In any event, we believe the facts of this case place it within
the rule enunciated in Dimaisip vs. Court of Appeals, G.R. No. L-13000, September 25, 1959, as
follows:
Such failure (to appeal from the decision of the Secretary at Agriculture and Natural
Resources to the President) cannot preclude the plaintiffs from taking court action in view of
the theory that the Secretary of a Department is merely an alter-ego of the President; the
assumption is that the action of the Secretary bears the implied sanction of the President,
unless same is disapproved by the latter.
The order appealed from is reversed, and the case is remanded to the court a quo for trial and
judgment on the merits. No costs.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Regala,
JJ.,
concur.
Barrera, J., took no part in view of his intervention in the matter involved, in his former capacity as
Secretary
of
Justice.
Labrador, J., is on leave.