Vous êtes sur la page 1sur 17

March 18, 2015 G.R. No.

207422 Finding that Dela Cruz’s promotion violated Civil Service


ANGEL ABAD, Petitioner, vs. HERMINIO DELA CRUZ Commission Memorandum Circular No. 3, Series of 2001 on the
Appointments in the civil service are made fundamentally on the three- salary-grade rule,20 the Grievance Committee recommended
basis of merit. Both the Constitution and law ensure that those the invalidation of Dela Cruz’s permanent appointment as City
appointed are fit for the position. While those who are next in rank to Government Department Head III.21 This recommendation was
a vacant position may be given some preference, no one has a approved by Mayor San Pedro.
vested right to a government position. Seniority and salary grades Mayor San Pedro’s approval was then referred to the Civil Service
should be given their due weight but should not trump the public Commission-National Capital Region for appropriate action.22
interest. In the Decision23 dated August 17, 2009, the Civil Service
This resolves the Petition for Review on Certiorari 1 filed by Angel Commission-National Capital Region invalidated Dela Cruz’s
Abad assailing the Court of Appeals Decision2dated April 11, 2012. permanent appointment as City Government Department Head III
The Court of Appeals affirmed the Civil Service Commission and ruled that he was appointed in violation of the three-salary-grade
Resolution3 dated June 22, 2010. This Resolution affirmed the rule under Civil Service Commission Memorandum Circular No. 3,
permanent appointment of Herminio Dela Cruz as City Government Series of 2001.24
Department Head III.4 On Dela Cruz’s appeal,25 the Civil Service Commission reversed and
Mayor Jaime R. Fresnedi appointed Herminio Dela Cruz (Dela Cruz) set aside the Civil Service Commission-National Capital Region’s
as City Assessor5 of the City Government of Muntinlupa in a Decision in Resolution No. 101276 dated June 22, 2010.26
permanent capacity on December 28, 2006.6 The City Assessor is The Civil Service Commission found that the City Government of
given the item of City Government Department Head III.7 Muntinlupa’s Personnel Selection Board ranked the applicants for
In Resolution No. 06-361,8 majority of the members of the City Government Department Head III based on the following
Sangguniang Panlungsod of the City Government of Muntinlupa criteria: performance, work history, awards, education, training,
concurred in the appointment of Dela Cruz as City Government potential, and physical characteristics and personality traits. Out of
Department Head III.9 nine (9) applicants, Dela Cruz ranked first with a grade of 90.67 out
Pursuant to Civil Service Commission Resolution No. 02-1235 of 100 points. Although it conceded that Abad was not among the
granting the City Government of Muntinlupa the power to take final nine (9) applicants screened, the Commission nevertheless ruled
action on its appointments, the appointment of Dela Cruz was that Dela Cruz’s appointment was an exception to the three-salary-
considered attested to by the Civil Service Commission.10 grade rule.27 Dela Cruz underwent a deep selection process
Angel A. Abad (Abad), Local Assessment Operations Officer V in the rendering his appointment "very meritorious[.]"28
Office of the City Assessor, wrote the Civil Service Commission and The Commission likewise noted that contrary to the rule that
requested the disapproval of Dela Cruz’s appointment as City whoever alleges must prove, the Grievance Committee placed on
Government Department Head III.11 Abad alleged that the position of Dela Cruz the burden of proving that Abad was not considered for
City Government Department Head III corresponded to Salary Grade appointment. The Grievance Committee, therefore, erred. As for
27, nine (9) salary grades higher than Dela Cruz’s former position as Abad, he failed to prove the allegation that he was not considered for
Local Assessment Operations Officer III with Salary Grade promotion.29
18.12 According to Abad, Dela Cruz’s appointment violated Item 15 of Abad’s Motion for Reconsideration was denied by the Civil Service
Civil Service Commission Memorandum Circular No. 3, Series of Commission in the Resolution dated November 12, 2010.30
2001, which prohibits the promotion of an employee to a position A Petition for Review was filed before the Court of Appeals. 31 The
more than three (3) salary grades above his or her former position:13 Court of Appeals, however, dismissed the Petition for Review in the
15. An employee may be promoted or transferred to a position which Decision dated April 11, 2012.32
is not more than three (3) salary, pay or job grades higher than the The Court of Appeals held that the three-salary-grade rule "only
employee’s present position except in very meritorious cases, such gives preference to the person occupying the position next in rank to
as: if the vacant position is next-in- rank as identified in the System a vacancy, but does not by any means give [the employee next in
of Ranking Positions (SRP) approved by the head of agency, or the rank] [the] exclusive right to be appointed to the said vacancy." 33 As
lone or entrance position indicated in the agency staffing pattern. long as the employee appointed to the position possesses the
Abad added that being a qualified next-in-rank, he applied for the minimum qualifications for the position, the appointment is valid.34
position of City Government Department Head III. However, he and The Court of Appeals also found that Abad failed to prove that he
three (3) other qualified applicants were allegedly excluded from the was the employee next in rank to the position of City Government
selection process, in violation of Item 10 of Civil Service Commission Department Head III.35 On the other hand, Dela Cruz proved that he
Memorandum Circular No. 3, series of 2001.14 This provides: possessed the minimum qualifications for the position and that he
10.For vacancies in the first and second levels, all qualified next-in- underwent a deep selection process where he ranked first among
rank employees shall be automatically considered candidates for nine (9) applicants.36 The Court of Appeals, thus, affirmed Dela
promotion to the next higher position. Cruz’s appointment.37
According to Abad, the appointment of Dela Cruz caused Both Motion for Reconsideration38 and Supplemental Motion for
"demoralization within [their] ranks."15 Reconsideration39 filed by Abad were denied by the Court of Appeals
In the letter16 dated January 26, 2007, the Civil Service Commission in its Resolution40 dated June 4, 2013.
referred Abad’s letter to the City Government of Muntinlupa’s On July 25, 2013,41 Abad filed before this court the Petition for
grievance machinery for proper action. Review on Certiorari. Dela Cruz filed his Comment, 42 after which
In the meantime, newly elected Mayor Aldrin San Pedro (Mayor San Abad filed his Reply.43
Pedro) assumed his office in the City Government of Muntinlupa on Abad insists that Dela Cruz’s promotion was void for violation of the
July 1, 2007. On August 3, 2007, the main building of Muntinlupa three-salary-grade rule under Civil Service Commission
City Hall was gutted by fire, destroying the Office of the City Memorandum Circular No. 3, Series of 2001. Moreover, he and other
Personnel. The City Government of Muntinlupa, therefore, failed to employees who were allegedly next in rank to the position of City
act on Abad’s Letter.17 Government Department Head III were not considered for the
Thus, on September 25, 2007, Abad filed with the Mayor’s Office the position. Contrary to the finding of the Civil Service Commission and
letter-complaint18 reiterating his request for disapproval of Dela the Court of Appeals, the City Government of Muntinlupa’s
Cruz’s permanent appointment as City Government Department Personnel Selection Board did not conduct any deep selection
Head III. process in appointing a new City Government Department Head III.44
Mayor San Pedro referred Abad’s letter-complaint to the City Thus, Abad prays that this court invalidate Dela Cruz’s appointment
Government of Muntinlupa’s Personnel Department.19 and order the City Government of Muntinlupa to conduct a new
selection process for the position of City Government Department For local government units, the appointment of an assessor is
Head III.45 mandatory.68 In the City Government of Muntinlupa, the City
Dela Cruz refutes Abad’s claim of lack of deep selection process. As Assessor is given the item of City Government Department Head III
the Civil Service Commission and the Court of Appeals found, the under the City’s 2007 Personnel Schedule.69 As provided in Section
City Government of Muntinlupa’s Personnel Selection Board 472(a) of the Local Government Code of 1991, the assessor must
conducted a deep selection process for the position of City possess the following qualifications:
Government Department Head III where he ranked first out of nine SECTION 472. Qualifications, Powers and Duties. - (a) No person
(9) applicants.46Dela Cruz emphasizes that the factual findings of the shall be appointed assessor unless he is a citizen of the Philippines,
Civil Service Commission, which was sustained by the Court of a resident of the local government unit concerned, of good moral
Appeals, must be accorded great respect since these have been character, a holder of a college degree preferably in civil or
made by the "administrative agency which [has] acquired expertise mechanical engineering, commerce, or any other related course
[in the field of civil service law.]"47 from a recognized college or university, and a first grade civil service
The issues for this court’s resolution are: eligible or its equivalent. He must have acquired experience in real
First, whether respondent Dela Cruz’s promotion to the position of property assessment work or in any related field for at least five (5)
City Government Department Head III is void because it violated the years in the case of the city or provincial assessor, and three (3)
next- in-rank rule; and years in the case of the municipal assessor.
Second, whether respondent Dela Cruz’s promotion to the position The 1997 Revised Qualification Standards Manual reiterates the
of City Government Department Head III is void for lack of a deep following minimum qualifications for the position of assessor:
selection process. Education : Bachelor’s degree preferably in Civil or Mechanical
This Petition must be denied. Engineering, Commerce or any related course
I Experience : Five (5) years experience in real property
The Civil Service Commission is the "central personnel agency of the assessment work or in any related field
Government[.]"48 Its mandate is to ensure that appointments in the Training : None
civil service are generally made on the basis of merit and Eligibility : First grade or its equivalent.70
fitness.49 The Commission is tasked to strengthen the merit and
The Civil Service Commission-National Capital Region and the Civil
rewards system in the civil service50 by administering and enforcing
Service Commission agree that respondent possesses the minimum
the "constitutional and statutory provisions on the merit system for all
qualifications under the law for the position of City Government
levels and ranks in the Civil Service[.]"51
Department Head III:
The Constitution adopts the merit system to ensure that those
A comparative evaluation of the qualifications of Dela Cruz as
appointed in the civil service are competent.52 This is to "eradicate
indicated in his Personal Data Sheet (PDS) vis-à-vis the qualification
the system of appointment to public office based on political
standards for the position of City Assessor III shows that he meets all
considerations and to eliminate . . . the element of partisanship and
the requirements for appointment thereto. Likewise, he satisfies the
personal favoritism in making appointments."53
requirements prescribed by RA 7160. Hence, Dela Cruz qualifies for
"The civil service embraces all branches, subdivisions,
the issuance of permanent appointment as City Assessor III.
instrumentalities, and agencies of the Government, including
Moreover, the appointment of Dela Cruz was confirmed by the
government- owned or controlled corporations with original
Sangguniang Panlungsod ng Muntinlupa in Resolution No. 06-361
charters."54 Thus, all appointive local government employees are
dated December 7, 2006.71
covered by civil service laws and rules.55 Appointive local
With its constitutional mandate, the Civil Service Commission has
government employees must possess the qualifications provided by
acquired "specialized knowledge and expertise"72in the field of civil
law for the positions they hold.56
service law. Consequently, its findings of fact, if based on substantial
The qualifications the appointee must satisfy depend on whether the
evidence, are "accorded great respect and even finality" 73 by
position belongs to the career service or the non-career service.
appellate courts, this court included. Absent grave abuse of
Entrance in the career service is based on "merit and fitness to be
discretion, this court will not disturb the findings of fact of the Civil
determined as far as practicable by competitive examination, or
Service Commission.74
based on highly technical qualifications[.]"57 On the other hand,
II
entrance in the non-career service is based on criteria other than the
Petitioner contends, however, that he is a qualified next-in-rank who
"usual tests of merit and fitness[.]"58
was bypassed for appointment to the position of City Government
Positions in the career service are further grouped into three (3)
Department Head III. Thus, respondent’s appointment is void
levels. The first level includes positions requiring less than four (4)
notwithstanding his possession of the qualifications for the position.
years of collegiate studies.59 The second level includes positions with
In promotions,75 the appointing authority must automatically consider
duties requiring at least four (4) years of college work up to the
the employees next in rank as candidates for appointment. Section
Division Chief level.60 The third level includes positions in the Career
21, paragraphs (2) and (3) of the Civil Service Law provide for the
Executive Service.61
next-in-rank rule:
Candidates for appointment to first and second level positions are
SEC. 21. Recruitment and Selection of Employees. — . . .
generally screened by the Personnel Selection Board.62 In local
(2)When a vacancy occurs in a position in the first level of the
government units, the Personnel Selection Board is headed by the
Career Service as defined in Section 6, the employees in the
local chief executive and is composed of members appointed by the
department who occupy the next lower positions in the
sanggunian concerned.63 The Personnel Selection Board of each
occupational group under which the vacant position is classified,
local government unit "assist[s] the local chief executive in the
and in other functionally related occupational groups and who
judicious and objective selection of personnel for employment as
are competent, qualified and with the appropriate civil service
well as . . . promotion[.]"64
eligibility shall be considered for promotion.
The appointing authority in local government units, therefore, is the
(3)When a vacancy occurs in a position in the second level of
local chief executive who must assess the merits of the Personnel
the Career Service as defined in Section 8, the employees in the
Selection Board’s recommendation.65 If heads of offices or
government service who occupy the next lower positions in the
departments in a local government unit are appointed, majority of the
occupational group under which the vacant position is classified
members of the sanggunian concerned must concur in the
and in other functionally related occupational groups and who
appointment.66 Finally, the appointment must be submitted to the
are competent, qualified and with the appropriate civil service
Civil Service Commission for attestation within 30 days from the
eligibility shall be considered for promotion. (Emphasis supplied)
appointment’s issuance date.67
"Promotion is the advancement of an employee from one position to 1.The position occupied by the person is next-in- rank to the
another with an increase in duties and responsibilities as authorized vacant position, as identified in the Merit Promotion Plan and the
by law, and usually accompanied by an increase in System of Ranking Positions (SRP) of the agency[;]
salary."76 Employees next in rank are those "who occupy the next 2.The position is a lone, or entrance position, as indicated in the
lower positions in the occupational group under which the vacant agency’s staffing pattern;
position is classified, and in other functionally related occupational 3.The position belongs to the dearth category, such as Medical
groups and who are competent, qualified and with the appropriate Officer/Specialist positions and Attorney positions;
civil service eligibility[.]"77 4.The position is unique and/or highly specialized such as
The reason behind the next-in-rank rule is to maintain the policy of Actuarial positions and Airways Communicator;
merit and rewards in the civil service.78 Since appointments in the 5.The candidates passed through a deep selection process,
civil service are based on merit and fitness, it is assumed that the taking into consideration the candidates’ superior qualifications
appointments of employees next in rank are equally meritorious. in regard to:
Appointments that consider rank, salary grades, and seniority Educational achievements Highly specialized trainings
promote progressiveness and courtesy in the civil service.79 Relevant work experience
Still, the next-in-rank rule is a rule of preference on who to consider Consistent high performance rating/ranking; and
for promotion.80 The rule does not give employees next in rank a 6.The vacant position belongs to the closed career
vested right to the position next higher to theirs should that position system.91 (Emphasis supplied)
become vacant.81Appointment is a discretionary power of the Consistent with the next-in-rank rule, the appointing authority shall
appointing authority.82 So long as the appointee possesses the consider for promotion qualified next-in-rank employees. However,
qualifications required by law, the appointment is valid.83 there are instances when the employees next in rank occupy
Who to appoint is "a political question involving considerations of positions whose salary grades are more than three (3) grades lower
wisdom which only the appointing authority can decide."84 For the than that corresponding to the vacant position. These instances
betterment of government service, the appointing authority may should not prevent the appointing authority from filling the vacancy,
consider other "abstract criteria[,]"85 aside from the minimum but whoever is appointed must undergo a deep selection process
qualifications set by law in making appointments. As this court and demonstrate his or her superior qualifications and
explained in Cortez v. Civil Service Commission:86 competence.92 This is to maintain the standard of merit and fitness
[M]any factors are taken into account in evaluating the qualifications for appointment in the civil service.
of prospective appointees and that formal examinations, work The Civil Service Commission found that respondent’s appointment
experience and educational attainment are only some of them. Such fell under the fifth exception provided in Civil Service Commission
abstract criteria as loyalty, cordiality, initiative, resourcefulness, Resolution No. 03-0106 dated January 24, 2003.93 Contrary to
discipline, and other personality traits are also properly considered. petitioner’s claim, the Personnel Selection Board conducted a deep
When making this evaluation, the appointing authority should be selection process, ranking the candidates for the position of City
given the widest possible leeway and cannot be controlled by the Government Department Head III based on the following criteria:
Commission. . . . performance, 25 points; work history, 25 points; awards, 5 points;
.... education, 5 points; training, 10 points; potential, 10 points; and
As long as the appointee possesses the minimum qualifications physical characteristics and personality traits, 20 points.
prescribed by law or regulations, there is no question that his The document denominated as Merit Promotion and System of
appointment must be respected by the Civil Service Commission Ranking Position shows that out of nine (9) candidates, respondent
even if it be proved that there are others with superior credentials.87 ranked first with a grade of 90.67 out of 100 points.94 Respondent’s
To successfully protest the issuance of an appointment, the case, therefore, is a "very meritorious case." His promotion from
employee next in rank must prove his or her status as a qualified Local Assessment Operations Officer III with Salary Grade 18 to City
next-in-rank; otherwise, the protest shall be dismissed. 88 Being next Government Department Head III with Salary Grade 27 is valid.
in rank is a legal conclusion that would be the result of inference IV
from evidence properly alleged and proven. The burden of proof Even if petitioner were next in rank, he failed to present evidence
rests on the employee alleging that he or she is next in rank.89 conclusively showing that he was not considered for promotion. The
Petitioner failed to discharge his burden of proving that he was a document denominated as Merit Promotion and System of Ranking
qualified next-in-rank. He failed to prove that his position of Local Position contains only nine (9) names; hence, it appears to be a
Assessment Operations Officer V has been previously determined to short list of those ranked for promotion. To be shortlisted, however, is
be next-in-rank to the position of City Government Department Head different from being considered for promotion. Petitioner might have
III in the Office of the City Assessor of the City Government of been considered for promotion, but he did not make it to the short
Muntinlupa.90 list. Absent contrary evidence, the presumption that the City
Petitioner, therefore, has no right to protest the appointment of Government of Muntinlupa’s Personnel Selection Board performed
respondent. its duties with regularity applies.95
III In any case, we cannot order the invalidation of respondent’s
Petitioner further contends that respondent was appointed in appointment in the present proceedings. To do so would necessarily
violation of the three-salary-grade rule found in Item 15 of Civil result in his removal from an office he has physically possessed for
Service Commission Memorandum Circular No. 3, Series of 2001. almost nine (9) years. Respondent has been discharging the duties
Therefore, respondent’s appointment should be recalled. of the City Assessor, at the very least, under a color of title to the
Item 15 of Civil Service Commission Memorandum Circular, Series position especially since he possesses the qualifications for it.
of 2001 on the three-salary-grade rule states that "[a]n employee Analogous to a de facto officer, respondent’s title to his office may
may be promoted or transferred to a position which is not more than only be attacked through a petition for quo warranto filed by the
three (3) salary, pay or job grades higher than the employee’s Government or by the person claiming title to the office.96 ·
present position[.]" However, this rule is subject to the exception of In Tayko v. Capistrano,97 this court held that "[t]he title of a de facto
"very meritorious cases." These "very meritorious cases" are officer cannot be indirectly questioned.... Having at least colorable
provided in Civil Service Commission Resolution No. 03-0106 dated right to the office[,] [the de facto officer's] title can be determined only
January 24, 2003: in a quo warranto proceeding or information in the nature of a quo
Any or all of the following would constitute a meritorious case warranto at suit of the sovereign."98
exempted from the 3-salary grade limitation on promotion: Respondent possesses the minimum qualifications for the position of
City Government Department Head III. Moreover, his promotion from
a Salary Grade 18 to a Salary Grade 27 position was a "very Furthermore, as an elective official, respondent
meritorious case" since he has gone through a deep selection contravened the prohibition under Section 7(b)(2) of RA 6713:[8]
process. Respondent Herminio Dela Cruz's appointment as City
Government Department Head III, therefore, is valid. SEC. 7. Prohibited Acts and Transactions. In addition
WHEREFORE, the Petition for Review on Certiorari is DENIED. The to acts and omissions of public officials and employees
Court of Appeals' Decision dated April 11, 2012 is AFFIRMED. now prescribed in the Constitution and existing laws, the
SO ORDERED. following shall constitute prohibited acts and transactions
of any public official ands employee and are hereby
WILFREDO M. CATU, A.C. No. 5738 - v e r s u s - ATTY. declared to be unlawful:
VICENTE G. RELLOSA,
Complainant Wilfredo M. Catu is a co-owner of a lot[1] and the xxx xxx xxx
building erected thereon located at 959 San Andres Street, Malate,
Manila. His mother and brother, Regina Catu and Antonio Catu, (b) Outside employment and other activities related
contested the possession of Elizabeth C. Diaz-Catu [2] and Antonio thereto. Public officials and employees during their
Pastor[3] of one of the units in the building. The latter ignored incumbency shall not:
demands for them to vacate the premises. Thus, a complaint was
initiated against them in the Lupong Tagapamayapa of Barangay xxx xxx xxx
723, Zone 79 of the 5th District of Manila[4] where the parties reside. (2) Engage in the private practice of profession
unless authorized by the Constitution or law,
Respondent, as punong barangay of Barangay 723, provided that such practice will not conflict or tend to
summoned the parties to conciliation meetings.[5] When the parties conflict with their official functions; xxx (emphasis
failed to arrive at an amicable settlement, respondent issued a supplied)
certification for the filing of the appropriate action in court.
According to the IBP-CBD, respondents violation of this
Thereafter, Regina and Antonio filed a complaint for ejectment prohibition constituted a breach of Canon 1 of the Code of
against Elizabeth and Pastor in the Metropolitan Trial Court of Professional Responsibility:
Manila, Branch 11. Respondent entered his appearance as counsel
for the defendants in that case. Because of this, complainant filed CANON 1. A LAWYER SHALL UPHOLD THE
the instant administrative complaint,[6] claiming that respondent CONSTITUTION, OBEY THE LAWS OF THE
committed an act of impropriety as a lawyer and as a public officer LAND, PROMOTE RESPECT FOR LAW AND LEGAL
when he stood as counsel for the defendants despite the fact that he PROCESSES. (emphasis supplied)
presided over the conciliation proceedings between the litigants For these infractions, the IBP-CBD recommended the
as punong barangay. respondents suspension from the practice of law for one month with
a stern warning that the commission of the same or similar act will be
In his defense, respondent claimed that one of his duties as punong dealt with more severely.[9] This was adopted and approved by the
barangay was to hear complaints referred to the barangays Lupong IBP Board of Governors.[10]
Tagapamayapa. As such, he heard the complaint of Regina and
Antonio against Elizabeth and Pastor. As head of the Lupon, he We modify the foregoing findings regarding the
performed his task with utmost objectivity, without bias or partiality transgression of respondent as well as the recommendation on the
towards any of the parties. The parties, however, were not able to imposable penalty.
amicably settle their dispute and Regina and Antonio filed the
ejectment case. It was then that Elizabeth sought his legal RULE 6.03 OF THE CODE OF PROFESSIONAL
assistance. He acceded to her request. He handled her case for free RESPONSIBILITY APPLIES ONLY TO FORMER
because she was financially distressed and he wanted to prevent the GOVERNMENT LAWYERS
commission of a patent injustice against her. Respondent cannot be found liable for violation of Rule 6.03
of the Code of Professional Responsibility. As worded, that Rule
The complaint was referred to the Integrated Bar of the Philippines applies only to a lawyer who has left government service and in
(IBP) for investigation, report and recommendation. As there was no connection with any matter in which he intervened while in said
factual issue to thresh out, the IBPs Commission on Bar Discipline service. In PCGG v. Sandiganbayan,[11] we ruled that Rule
(CBD) required the parties to submit their respective position papers. 6.03 prohibits former government lawyers from accepting
After evaluating the contentions of the parties, the IBP-CBD found engagement or employment in connection with any matter in which
sufficient ground to discipline respondent.[7] [they] had intervened while in said service.

According to the IBP-CBD, respondent admitted that, Respondent was an incumbent punong barangay at the
as punong barangay, he presided over the conciliation proceedings time he committed the act complained of. Therefore, he was not
and heard the complaint of Regina and Antonio against Elizabeth covered by that provision.
and Pastor. Subsequently, however, he represented Elizabeth and
Pastor in the ejectment case filed against them by Regina and SECTION 90 OF RA 7160, NOT SECTION 7(B)(2) OF RA
Antonio. In the course thereof, he prepared and signed pleadings 6713, GOVERNS THE PRACTICE OF PROFESSION OF
including the answer with counterclaim, pre-trial brief, position paper ELECTIVE LOCAL GOVERNMENT OFFICIALS
and notice of appeal. By so doing, respondent violated Rule 6.03 of
the Code of Professional Responsibility: Section 7(b)(2) of RA 6713 prohibits public officials and employees,
during their incumbency, from engaging in the private practice of
Rule 6.03 A lawyer shall not, after leaving government their profession unless authorized by the Constitution or law,
service, accept engagement or employment in connection provided that such practice will not conflict or tend to conflict with
with any matter in which he intervened while in said their official functions. This is the general law which applies to all
service. public officials and employees.
For elective local government officials, Section 90 of RA
7160[12] governs:
SEC. 90. Practice of Profession. (a) All governors, city While, as already discussed, certain local elective officials
and municipal mayors are prohibited from practicing their (like governors, mayors, provincial board members and councilors)
profession or engaging in any occupation other than the are expressly subjected to a total or partial proscription to practice
exercise of their functions as local chief executives. their profession or engage in any occupation, no such interdiction is
(b) Sanggunian members may practice their professions, made on the punong barangay and the members of
engage in any occupation, or teach in schools except the sangguniang barangay. Expressio unius est exclusio alterius.
during session hours: Provided, [15]
Since they are excluded from any prohibition, the presumption is
That sanggunian members who are members of the Bar that they are allowed to practice their profession. And this stands to
shall not: reason because they are not mandated to serve full time. In fact,
(1) Appear as counsel before any court in any the sangguniang barangay is supposed to hold regular sessions only
civil case wherein a local government unit or any office, twice a month.[16]
agency, or instrumentality of the government is the
adverse party; Accordingly, as punong barangay, respondent was not
(2) Appear as counsel in any criminal case forbidden to practice his profession. However, he should have
wherein an officer or employee of the national or local procured prior permission or authorization from the head of his
government is accused of an offense committed in relation Department, as required by civil service regulations.
to his office;
(3) Collect any fee for their appearance in A LAWYER IN GOVERNMENT SERVICE WHO IS NOT
administrative proceedings involving the local government PROHIBITED TO PRACTICE LAW MUST SECURE
unit of which he is an official; and PRIOR AUTHORITY FROM THE HEAD OF HIS
(4) Use property and personnel of the DEPARTMENT
Government except when the sanggunian member
concerned is defending the interest of the Government.
(c) Doctors of medicine may practice their profession even A civil service officer or employee whose responsibilities do not
during official hours of work only on occasions of require his time to be fully at the disposal of the government can
emergency: Provided, That the officials concerned do not engage in the private practice of law only with the written permission
derive monetary compensation therefrom. of the head of the department concerned.[17] Section 12, Rule XVIII of
the Revised Civil Service Rules provides:
This is a special provision that applies specifically to the
practice of profession by elective local officials. As a special law with Sec. 12. No officer or employee shall engage
a definite scope (that is, the practice of profession by elective local directly in any private business, vocation,
officials), it constitutes an exception to Section 7(b)(2) of RA 6713, or profession or be connected with any commercial,
the general law on engaging in the private practice of profession by credit, agricultural, or industrial undertaking without a
public officials and employees. Lex specialibus derogat generalibus. written permission from the head of the
[13]
Department: Provided, That this prohibition will be
absolute in the case of those officers and employees
Under RA 7160, elective local officials of provinces, cities, whose duties and responsibilities require that their entire
municipalities and barangays are the following: the governor, the time be at the disposal of the Government; Provided,
vice governor and members of the sangguniang panlalawigan for further, That if an employee is granted permission to
provinces; the city mayor, the city vice mayor and the members of engage in outside activities, time so devoted outside of
the sangguniang panlungsod for cities; the municipal mayor, the office hours should be fixed by the agency to the end that
municipal vice mayor and the members of the sangguniang it will not impair in any way the efficiency of the officer or
bayan for municipalities and the punong barangay, the members of employee: And provided, finally, that no permission is
the sangguniang barangay and the members of the sangguniang necessary in the case of investments, made by an officer
kabataan for barangays. or employee, which do not involve real or apparent conflict
between his private interests and public duties, or in any
Of these elective local officials, governors, city mayors and way influence him in the discharge of his duties, and he
municipal mayors are prohibited from practicing their profession or shall not take part in the management of the enterprise or
engaging in any occupation other than the exercise of their functions become an officer of the board of directors. (emphasis
as local chief executives. This is because they are required to render supplied)
full time service. They should therefore devote all their time and
attention to the performance of their official duties. As punong barangay, respondent should have therefore
obtained the prior written permission of the Secretary of Interior and
On the other hand, members of the sangguniang Local Government before he entered his appearance as counsel for
panlalawigan, sangguniang panlungsod or sangguniang bayan may Elizabeth and Pastor. This he failed to do.
practice their professions, engage in any occupation, or teach in
schools except during session hours. In other words, they may The failure of respondent to comply with Section 12, Rule XVIII of
practice their professions, engage in any occupation, or teach in the Revised Civil Service Rules constitutes a violation of his oath as
schools outside their session hours. Unlike governors, city mayors a lawyer: to obey the laws. Lawyers are servants of the law, vires
and municipal mayors, members of the sangguniang legis, men of the law. Their paramount duty to society is to obey the
panlalawigan, sangguniang panlungsod or sangguniang bayan are law and promote respect for it. To underscore the primacy and
required to hold regular sessions only at least once a week.[14] Since importance of this duty, it is enshrined as the first canon of the Code
the law itself grants them the authority to practice their professions, of Professional Responsibility.
engage in any occupation or teach in schools outside session hours,
there is no longer any need for them to secure prior permission or In acting as counsel for a party without first securing the required
authorization from any other person or office for any of these written permission, respondent not only engaged in the unauthorized
purposes. practice of law but also violated civil service rules which is a breach
of Rule 1.01 of the Code of Professional Responsibility:
Rule 1.01 A lawyer shall not engage sometime between the years 1978 and 1979, Dolores Bago (Mayor
in unlawful, dishonest, immoral or Bago), then Mayor of the Municipality of Bulalacao, Oriental Mindoro,
deceitful conduct. (emphasis supplied) agreed to lend the administration of Liwagao Island to Oscar Lim
(Mayor Lim), then Mayor of the Municipality of Caluya, Antique. 8 The
agreement was made orally and without executing any formal
For not living up to his oath as well as for not complying with the documents to this effect. The condition attached to the agreement
exacting ethical standards of the legal profession, respondent failed was that the island would be returned upon termination of either
to comply with Canon 7 of the Code of Professional Responsibility: party's terms in office.

CANON 7. A LAWYER SHALL AT ALL TIMES The terms of both mayors ended in 1987. Mayor Lim allegedly
UPHOLD THE INTEGRITY AND THE DIGNITY OF returned Liwagao Island to the Municipality of Bulalacao. However,
THE LEGAL PROFESSION AND SUPPORT THE the Municipality of Caluya continued to exercise administration over
ACTIVITIES OF THE INTEGRATED BAR. (emphasis the island.9
supplied)
On 15 April 2002, the Sangguniang Panlalawigan of Oriental
Indeed, a lawyer who disobeys the law disrespects it. In so Mindoro passed a resolution confirming its jurisdictional rights and
doing, he disregards legal ethics and disgraces the dignity of the dominion over Liwagao Island.10 However, according to respondents,
legal profession. the Municipality of Caluya and the Province of Antique continued to
claim and exercise authority over Liwagao Island.11
Public confidence in the law and in lawyers may be eroded
by the irresponsible and improper conduct of a member of the bar. Respondents claim that despite the fact that it is the Province of
[18]
Every lawyer should act and comport himself in a manner that Oriental Mindoro and the Municipality of Bulalacao that provide
promotes public confidence in the integrity of the legal profession.[19] government services to the island, petitioners "continued collecting
real property taxes" from Liwagao's inhabitants. 12
A member of the bar may be disbarred or suspended from
his office as an attorney for violation of the lawyers oath [20] and/or for On 20 February 2012, the Sangguniang Panlalawigan of Oriental
breach of the ethics of the legal profession as embodied in the Code Mindoro passed Resolution No. 1454-2012 entitled Resolution
of Professional Responsibility. Calling for the Conduct of a Joint Session between the Sangguniang
Panlalawigan of the Province of Oriental Mindoro and the
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby Sangguniang Panlalawigan of the Province of Antique for the
found GUILTY of professional misconduct for violating his oath as a Settlement of Jurisdictional Claim over the Island of Liwagao.13
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of
Professional Responsibility. He is therefore SUSPENDED from the Upon receiving a copy of Resolution No. 1454-2012, the Vice
practice of law for a period of six months effective from his receipt Governor of Antique wrote the Sangguniang Panlalawigan of
of this resolution. He is sternly WARNED that any repetition of Oriental Mindoro of her willingness to conduct a joint session to
similar acts shall be dealt with more severely. settle the boundary dispute. However, on 25 May 2012, the
Sangguniang Panlalawigan of Antique issued Resolution No. 142-
Respondent is strongly advised to look up and take to heart the 2012 informing Oriental Mindoro that it was not amenable to any
meaning of the word delicadeza. form of settlement over the jurisdiction of Liwagao Island and
asserted that the same rightfully belongs to their province. 14
Let a copy of this resolution be furnished the Office of the Bar
Confidant and entered into the records of respondent Atty. Vicente Thereafter, the Sangguniang Panlalawigan of Oriental Mindoro
G. Rellosa. The Office of the Court Administrator shall furnish copies issued a resolution directing the Provincial Legal Office to file the
to all the courts of the land for their information and guidance. necessary legal action to claim Liwagao Island.15

PROVINCE OF ANTIQUE AND MUNICIPALITY OF Thus, on 12 September 2012, respondents filed their petition before
CALUYA, Petitioners, v. HON. RECTO A. CALABOCAL, the RTC of Roxas, Oriental Mindoro.
Before this Court is a Petition for Certiorari and Prohibition with
Prayer for Preliminary Injunction and Temporary Restraining On the other hand, in their Answer before the RTC, petitioners
Order1 filed by the Province of Antique and the Municipality of Caluya claimed that "the maps of [NAMRIA] and DENR show Liwagao
(petitioners) against Judge Recto A. Calabocal (Judge Calabocal), Island to be part of Caluya, Antique."16 Petitioners asserted that "all
Judge-Designate of the Regional Trial Court (RTC) of Roxas, national agencies of the government have always considered the
Oriental Mindoro, Branch 43, and the Province of Oriental Mindoro island to be part of Caluya." Likewise, the people living there have
and the Municipality of Bulalacao, Oriental Mindoro (respondents). always recognized Caluya's jurisdiction over the island as evidenced
by the fact that they have "registered their births, paid real property
The case before the Court stems from a dispute between the taxes and voted in Caluya, Antique."17
Province of Antique and the Province of Oriental Mindoro for
"territorial jurisdiction, dominion, control and administration"2 over In the same Answer, petitioners set up the defense of lack of
Liwagao Island,3 a 114-hectare island located between the two jurisdiction of the RTC. They argued that "under Section 118,
provinces.4 This dispute led to Civil Case No. C-566, a petition for paragraph (c) of the Local Government Code, jurisdiction over
"Recovery and Declaration of Political Jurisdiction/Dominion and boundary disputes between municipalities of different provinces is
Mandamus"5filed by respondents against petitioners before the RTC vested on the Sangguniang Panlalawigans of the provinces
of Roxas, Oriental Mindoro. Assailed in this petition are the Orders involved."18
issued by Judge Calabocal on 23 April 2013,6 denying petitioners' The Orders of the RTC
affirmative defense of lack of jurisdiction, and on 17 July
2013,7 denying their subsequent motion for reconsideration. The RTC issued the first of its assailed orders on 23 April 2013 ruling
The Facts on the special and affirmative defenses invoked by the Province of
Antique and the Municipality of Caluya. Specifically, petitioners
Based on the petition filed by respondents before the RTC, argued that the case involved a boundary dispute that should have
first been brought to the Sangguniang Panlalawigan concerned for the respondent judge dated April [23], 2013 and July 17, 2013 in Civil
settlement.19 Case No. C-566, and dismissing Civil Case No. C-566, and

The RTC disagreed: c) A writ of prohibition be issued permanently enjoining respondent


chanRoblesvirtualLawlibrary judge from taking cognizance of this
The respondent claimed that the subject government unit is a part of case[.]22ChanRoblesVirtualawlibrary
its territory. Clearly, the issue revolves and gravitates on who The Court, in a Resolution dated 14 October 2013, issued a
between the petitioner and respondent is the owner of sitio Liwagao, temporary restraining order "enjoining the respondents, the RTC,
barangay Maasim, and not merely a boundary dispute because both Branch 43, Roxas, Oriental Mindoro, their representatives, agents or
parties claim the whole government unit of sitio Liwagao and not other persons acting on their behalf from further proceeding with the
merely a part thereof to constitute it as boundary dispute to fall under enforcement of the Orders dated 23 April 2013 and 17 July 2013 of
Section 118, paragraph c of the Local Government Code. the RTC, Branch 43, Roxas, Oriental Mindoro in Civil Case No. C-
566 during the pendency of the instant case."23
The respondent claims that it should have been brought first to the Petitioners' Arguments
Sangguniang Panlalawigan concern (sic) for settlement. The court is
not in accord with such contention because the Sanggunian of In the case at bar, petitioners aver that, first, the RTC committed
Antique already issued Resolution No. 142-2012 dated May 25, grave abuse of discretion amounting to lack or excess of jurisdiction
2012 to the effect that it categorically declared that the Sangguniang when it ruled that the case does not involve a boundary
Panlalawigan of Antique is not amenable to any form of settlement dispute.24Petitioners insist that the case involves a boundary dispute,
on the alleged dispute of jurisdiction or dominion over the Island of which simply refers to when "two entities disagree as to where the
Liwagao. Such resolution of the Sangguniang Panlalawigan of boundary between them lies."25 They further assert that "it does not
Antique absolutely slammed or closed the door to any amicable matter whether what is involved in said dispute is the whole or only a
settlement with the petitioners. Hence, the court believes that it part of a local government unit. What determines whether there is a
would be an exercise in futility for the petitioners to agree with boundary dispute is that there is disagreement as to whether the
respondents' argument. boundary lies between two territories."26

As correctly pointed out by Atty. Kristine Grace L. Suarez in her Second, petitioners assert that the RTC erred in assuming
memorandum, that there is no law precluding a party to a case from jurisdiction over respondents' petition because "the Sangguniang
availing of any legal remedies available. In this case, the petitioners Panlalawigans of both the provinces of Antique and Oriental
logically opted to institute this case which is an action for recovery Mindoro, sitting jointly, have primary, original and exclusive
and declaration of jurisdiction/dominion. jurisdiction over this boundary dispute."27 They contend that under
the Local Government Code, "a boundary dispute between
ACCORDINGLY, the instant affirmative defense of lack of jurisdiction municipalities of different provinces shall be referred first for
is hereby DENIED. x x x.20ChanRoblesVirtualawlibrary settlement to the sanggunians of the provinces jointly" and if no
Petitioners filed a Motion for Reconsideration. The RTC denied the settlement is reached, the case shall be jointly tried by the
motion in its second assailed Order of 17 July 2013, holding that: sanggunians concerned.28 After trial, the aggrieved party may appeal
chanRoblesvirtualLawlibrary the decision to the RTC having jurisdiction over the area.
x x x The real issue in this case is not a boundary dispute between
the petitioners and respondents but whether or not the former can Third, petitioners argue that the "RTC only has jurisdiction over an
recover back what it had lent to the latter. The respondents were just appeal from the decision of the Sangguniang Panlalawigans in a
trying to complicate the issue by making it appear that it is a boundary dispute in accordance with Sec. 119 of the Local
boundary dispute which it had already closed the door for any Government Code." They aver that the petition filed with the RTC
settlement. was not an appeal but an original complaint, 29 which alleges that the
parties concerned failed to settle the dispute. It is clear, petitioners
Since time immemorial, Liwagao Island was under the peaceful and claim, that "the respondents brought this action in the RTC as a
exclusive territorial and political jurisdiction by the Municipality of result of the failure of settlement between the parties, not as an
Bulalacao, Oriental Mindoro. In fact, voluminous documents clearly appeal from a decision of both the Sangguniang Panlalawigans of
show that Liwagao is within the Municipality of Bulalacao, Oriental Antique and Oriental Mindoro."30
Mindoro. This alone strongly indicates that the issue in this case is
not a boundary dispute because these documents indicate that Lastly, the RTC "cannot exercise appellate jurisdiction over
Liwagao Island is within the Municipality of Bulalacao, Oriental [respondents' petition] since there was no petition [for the
Mindoro. If it is true as claimed by the respondents that Liwagao adjudication of the boundary dispute] that was filed and decided by
Island is within its territorial and political jurisdiction, why would then the Sangguniang Panlalawigans of Antique and Oriental
Mayor Lim of Caluya, Antique still need to secure the consent of the Mindoro."31 Such petition should be in the form of a resolution and
then Mayor Bago of Bulalacao, Oriental Mindoro to temporarily filed with either of the two sanggunians. Resolution No. 1454-2012 of
exercise jurisdiction over the Island of Liwagao. To the mind of this the Province of Oriental Mindoro x x x "did not qualify as such
court, this is an admission on the part of the respondent that the petition because it only called for the conduct of a joint session
subject island is within the Municipality of Bulalacao, Oriental between the two sanggunians x x x. The resolution did not lay claim
Mindoro.21ChanRoblesVirtualawlibrary over Liwagao Island x x x. Much less did it state the grounds,
Petition for Certiorari and Prohibition with Prayer for reasons or justification for a claim, as required by the Implementing
Preliminary Injunction and TRO Rules and Regulations (IRR) of the Local Government Code."32
Respondents' Arguments
Petitioners subsequently filed the present petition praying for:
chanRoblesvirtualLawlibrary In their Comment,33 respondents initially argue for the dismissal of
a) A temporary restraining order and writ of preliminary injunction be the petition on technical grounds. Specifically, respondents allege
immediately issued enjoining all proceedings of the court a quo and that (1) the instant case was filed one day after the lapse of the 60-
of the respondent judge during the pendency of the case; day reglementary period to file a petition for certiorari/prohibition; (2)
petitioners also failed to attach a certified true copy of the assailed
b) A writ of certiorari be issued, reversing the questioned Orders of RTC orders and to file the required number of copies of the petition;
and (3) petitioners failed to pay the filing fee within the reglementary RULE III
period. Settlement of Boundary Disputes

Next, respondents argue that petitioners failed to adhere to the ARTICLE 15. Definition and Policy. — There is a boundary
doctrine of hierarchy of courts.34Citing past decisions of this Court, dispute when a portion or the whole of the territorial area of
respondents assert that following said doctrine, a special civil action an LGU is claimed by two or more LGUs.Boundary disputes
assailing the order of the RTC should be filed with the Court of between or among LGUs shall, as much as possible, be settled
Appeals and not with this Court.35 amicably. (Emphasis supplied)
Based on this definition, a boundary dispute may involve "a portion
Respondents contend that the RTC has jurisdiction over their petition or the whole" of a local government unit's territorial area. Nothing in
because the same is not an appeal but an "an original legal action to this provision excludes a dispute over an island. So long as the
recover and get back the Island of Liwagao."36 They emphasize that island is being claimed by different local government units, there
the petition they filed before the RTC is not one for settlement of exists a boundary dispute.
boundary dispute but for "recovery of jurisdiction/dominion over a
property."37 According to respondents, the two actions differ from The allegations in the complaint filed before the RTC point to a
each other in that in the action they filed, they seek to "RECOVER boundary dispute, as defined under the Local Government Code.
possession, jurisdiction and dominion over a property whose
ownership had previously been vested to them" while in case of Respondents are asserting their lawful jurisdiction over Liwagao
settlement of boundary dispute, "what is being prayed for is to Island as against another local government unit that currently has
CLAIM a property whose ownership is in question."38 jurisdiction over the same. Therefore, whether the case is
denominated as recovery of possession or claim of ownership,
Respondents insist that "there is no boundary dispute" 39 in this case. respondents' objective is the same: for respondents to regain their
They argue that the boundary lines between the Province of Oriental alleged territorial jurisdiction over Liwagao Island.
Mindoro and the Province of Antique "[have] long been set forth and
known to the parties" and that the "issue on the possession of Respondent Province of Oriental Mindoro itself acknowledges that
Liwagao Island x x x only cropped up when the Municipality of the conflict is a "boundary row" between itself and the Province of
Bulalacao lent the island to the Municipality of Caluya in the late Antique.48 As stated in Resolution No. 1454-2012, the Province of
1970s."40cralawred Oriental Mindoro claims to "adhere to the basic principle of amicably
settling said boundary dispute, as laid down in the provision of the
Likewise, respondents aver that "there is no law precluding a party Local Government Code of 1991[.]"49
from availing of any legal remedies available to him/her under the
law."41 Citing previous Court decisions, respondents insist that a Thus, they are bound by their own assertions and cannot now claim
party may resort to an original action to affirm its rights over what it that the conflict does not involve a boundary dispute.
claims to be its territory.42 Settlement of Boundary Disputes Governed By Local
Government Code of 1991
Finally, respondents argue that even "assuming it is the
Sangguniang Panlalawigans of the Provinces of Oriental Mindoro Having established that the case involves a boundary dispute, the
and Antique that have jurisdiction over the[ir] petition x x x the factual procedure to resolve the same is that established under the Local
circumstances rendered it impossible for these legislative bodies to Government Code. Under the said law, "the respective legislative
resolve the issue involving the Island of Liwagao."43 Respondents councils of the contending local government units have jurisdiction
point out that, prior to filing the petition before the RTC, it had over their boundary disputes."50Sections 118 and 119 of the Local
already made several attempts to "amicably discuss the issue on Government Code state:
jurisdictional claim."44 However, the Sangguniang Panlalawigan of chanRoblesvirtualLawlibrary
Antique categorically proclaimed that it was not amenable to any SECTION 118. Jurisdictional Responsibility for Settlement of
form of settlement.45 Boundary Dispute. - Boundary disputes between and among local
The Issue government units shall, as much as possible, be settled amicably. To
this end:
The sole issue in this case is whether the RTC has jurisdiction over
the respondents' petition for recovery of property and declaration of (a) Boundary disputes involving two (2) or more Barangays in the
territorial and political jurisdiction/dominion over Liwagao Island. same city or municipality shall be referred for settlement to the
The Court's Ruling Sangguniang Panlungsod or Sangguniang Bayan concerned.

The petition is dismissed for lack of merit. Contrary to petitioners' (b) Boundary disputes involving two (2) or more municipalities within
claim, the RTC has jurisdiction over the dispute. However, the RTC's the same province shall be referred for settlement to the
ruling that the case does not involve a boundary dispute is incorrect. Sangguniang Panlalawigan concerned.
The Case Involves a Boundary Dispute
(c) Boundary disputes involving municipalities or component
Respondents insist that this case stems from an original action for cities of different provinces shall be jointly referred for
"recovery/declaration of territorial and political jurisdiction/dominion" settlement to the Sanggunians of the provinces concerned.
and not a boundary dispute; hence, it is not within the purview of
Section 118 of the Local Government Code. (d) Boundary disputes involving a component city or municipality on
the one hand and a highly urbanized city on the other, or two (2) or
Respondents' argument is erroneous. more highly urbanized cities, shall be jointly referred for settlement to
the respective Sanggunians of the parties.
A boundary dispute involving different local government units is
defined in the Implementing Rules and Regulations (IRR)46 of the (e) In the event the Sanggunian fails to effect an amicable settlement
Local Government Code.47 Specifically, Rule III, Article 15 states: within sixty (60) days from the date the dispute was referred thereto,
chanRoblesvirtualLawlibrary it shall issue a certification to that effect. Thereafter, the dispute shall
be formally tried by the Sanggunian concerned which shall decide
the issue within sixty (60) days from the date of the certification effectively blocked any way to continue following the steps in the
referred to above. IRR.

SECTION 119. Appeal. - Within the time and manner prescribed by As such, respondents' petition before the RTC must be upheld.
the Rules of Court, any party may elevate the decision of the Otherwise, they will be left without any recourse or legal remedy to
Sanggunian concerned to the proper Regional Trial Court having assert their claim over Liwagao Island. Such uncertainty is
jurisdiction over the area in dispute. The Regional Trial Court shall unacceptable, as the fate of the island's residents rests in the
decide the appeal within one (1) year from the filing thereof. Pending immediate resolution of the dispute.chanrobleslaw
final resolution of the disputed area prior to the dispute shall be
maintained and continued for all legal purposes. (Emphasis WHEREFORE, the petition is DISMISSED. The Orders dated 23
supplied) April 2013 and 17 July 2013 issued by the Regional Trial Court of
The specific procedure in settling boundary disputes is outlined in Roxas, Oriental Mindoro, Branch 43, in Civil Case No. C-566
Rule III of the IRR of the Local Government Code: are AFFIRMED. The temporary restraining order issued by the
chanRoblesvirtualLawlibrary Court in its Resolution dated 14 October 2013 is LIFTED. The RTC
RULE III is ORDERED to hear and decide the case with dispatch.
Settlement of Boundary Disputes
SO ORDERED.cralawlawlibrary
ARTICLE 17. Procedures for Settling Boundary Disputes. — The
following procedures shall govern the settlement of boundary G.R. No. 146622 April 24, 2009
disputes: LEONORA P. CALANZA, vs. PAPER INDUSTRIES
CORPORATION OF THE PHILIPPINES (picop), GOOD
(a) Filing of petition — The sanggunian concerned may initiate action EARTH MINERAL CORP. (GEMCOR), EVARISTO NARVAEZ,
by filing a petition, in the form of a resolution, with the sanggunian JR., RICARDO G. SANTIAGO, ROBERTO A.
having jurisdiction over the dispute. This Petition for Review under Rule 45 of the Rules of Court seeks to
reverse and set aside the 19 June 2000 Decision 1 of the Court of
(g) Failure to settle — In the event the sanggunian fails to amicably Appeals in CA-G.R. CV No. 45234 which annulled the Decision of
settle the dispute within sixty (60) days from the date such dispute the Regional Trial Court (RTC) of Banganga, Davao Oriental, Branch
was referred thereto, it shall issue a certification to that effect and 7, granting the Complaint for Injunction filed by petitioners.
copies thereof shall be furnished the parties concerned. On 23 August 1991, petitioners Leonora P. Calanza, Eva M. Amoren,
Gene P. Roño, Sanny C. Calanza, Gregorio C. Yncierto II, and Angel
(h) Decision — Within sixty (60) days from the date the certification M. Puyo filed with the Mines and Geo-Sciences Development
was issued, the dispute shall be formally tried and decided by the Service, Department of Environment and Natural Resources
sanggunian concerned. Copies of the decision shall, within fifteen (DENR), Region XI, of Davao City, applications for small-scale
(15) days from the promulgation thereof, be furnished the parties mining permits for the purpose of extracting gold. In their
concerned, DILG, local assessor, COMELEC, NSO, and other NGAs applications, petitioners stated that the area where they will conduct
concerned. mining operations was in the Municipality of Boston, Davao Oriental.2
On 22 December 1992, the governor of Davao Oriental, Rosalind Y.
(i) Appeal — Within the time and manner prescribed by the Rules of Lopez, approved the applications and issued six small-scale mining
Court, any party may elevate the decision of the sanggunian permits in favor of the petitioners.3 Since the mining areas applied for
concerned to the proper Regional Trial Court having jurisdiction over by petitioners were within the respondent Paper Industries
the dispute by filing therewith the appropriate pleading, stating Corporation of the Philippines’ (PICOP) logging concession area
among others, the nature of the dispute, the decision of the under Timber License Agreements (TLAs) that covered large tracts
sanggunian concerned and the reasons for appealing therefrom. The of forest lands of the Provinces of Surigao del Sur, Agusan del Sur,
Regional Trial Court shall decide the case within one (1) year from Davao Oriental and Davao del Norte, petitioners negotiated with
the filing thereof. Decisions on boundary disputes promulgated jointly PICOP for their entry into the mining site at Barangay Catihan,
by two (2) or more sangguniang panlalawigans shall be heard by the Municipality of Boston, Davao Oriental. PICOP, through its officer
Regional Trial Court of the province which first took cognizance of Roberto A. Dormendo, refused petitioners’ entry into the mining area
the dispute. on the grounds that it has the exclusive right of occupation,
As the Court has previously ruled, it is "only upon the failure of these possession and control over the area being a logging concessionaire
intermediary steps will resort to the RTC follow, as specifically thereof; that petitioners’ mining permits are defective since they were
provided in Section 119 of the [Local Government Code.]"51 issued by the governor of Davao Oriental when in fact the mining
The RTC has Jurisdiction Over the Case area is situated in Barangay Pagtilaan, Municipality of Lingig,
Surigao del Sur; and that mining permits cannot be issued over
Respondents' resort to filing a case before the RTC was warranted areas covered by forest rights such as TLAs or forest reservations
under the circumstances of this case. unless their status as such is withdrawn by competent authority.
On 7 May 1993, petitioners filed a Complaint for Injunction with
It must be emphasized that respondents followed the procedure laid Prayer for the Issuance of a Restraining Order, Damages and
down in the Local Government Code. They took all the necessary Attorney’s Fees against PICOP and its officers before the RTC of
steps to settle the dispute within the procedure set out in the law, Banganga, Davao Oriental, praying that PICOP or its agent be
and by all indication, was prepared to see the matter thru in order to enjoined from preventing and prohibiting them from entering into the
lay the issue to rest. mining site.
PICOP countered that the RTC of Davao Oriental has no jurisdiction
However, petitioners failed to perform their concomitant responsibility over the complaint of petitioners since the disputed area is situated
under the same law, leaving respondents with no other recourse but in the Province of Surigao del Sur. PICOP also claimed that the
to bring the matter to court. Petitioners cannot demand that issuance of petitioners’ permits were void ab initio since the same
respondents now follow the procedure when they themselves have violated Section 5 of Republic Act No. 7076, otherwise known as the
made it impossible for any party to follow the same. The Province of People’s Small-Scale Mining Act of 1991, which allegedly prohibits
Antique's Resolution No. 142-2012 dated 25 May 2012, stating that the issuance of mining permits over areas covered by forest rights
the Province of Antique was not amenable to any form of settlement,
such as TLAs or forest reservations unless their status as such is The petition is not meritorious.
withdrawn by the competent authority. There is boundary dispute when a portion or the whole of the
In the Pre-Trial Order dated 4 October 1993, the following are territorial area of a Local Government Unit (LGU) is claimed by two
identified as the issues: or more LGUs.7 In settling boundary disputes, Section 118 of the
1. Whether the mining areas claimed by petitioners are found 1991 Local Government Code provides:
within the territories of Davao Oriental or Surigao del Sur. Sec. 118. Jurisdictional Responsibility for Settlement of Boundary
2. Whether the small-scale mining permits of petitioners are Dispute. – Boundary disputes between and among local government
valid. units shall, as much as possible, be settled amicably. To this end:
3. Whether PICOP has the right and authority to deny (a) Boundary disputes involving two (2) or more barangays in
petitioners access to, possession of and the authority to conduct the same city or municipality shall be referred for settlement to
mining activities within the disputed areas.4 the sangguniang panlungsod or sangguniang bayan concerned.
In a decision dated 26 November 1993, the RTC ruled in favor of the (b) Boundary disputes involving two (2) or more municipalities
petitioners. The RTC opined that Barangay Pagtilaan (as claimed by within the same province shall be referred for settlement to
PICOP) or Catihan (as claimed by petitioners) is within the territory the sangguniang panlalawigan concerned.
of the Province of Davao Oriental. Citing Section 465, paragraph (b), (c) Boundary disputes involving municipalities or component
Sub-paragraph (3)iv of Republic Act No. 7160 or the Local cities of different provinces shall be jointly referred for settlement
Government Code of 1991 which states to the effect that the to the sanggunians of the provinces concerned.
governor has the power to issue licenses and permits, the RTC ruled (d) Boundary disputes involving a component city or municipality
that the governor is vested with the power to issue the small-scale on the one hand and a highly urbanized city on the other, or two
mining permits to the petitioners. The decretal portion of the RTC (2) or more highly urbanized cities, shall be jointly referred for
decision provides: settlement to the respective sanggunians of the parties.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered: (e) In the event the sanggunian fails to effect an amicable
1. Declaring that all the [petitioners] have the rights under the settlement within sixty (60) days from the date the dispute was
laws to extract and remove gold ore from their permit area as referred thereto, it shall issue a certification to that effect.
particularly described by its technical descriptions found in their Thereafter, the dispute shall be formally tried by
respective permits subject to the terms and conditions stipulated the sanggunian concerned which shall decide the issue within
therein; sixty (60) days from the date of the certification referred to
2. Finding that [respondents] have no rights to deny [petitioners] above.1avvphi1
entry into the mining permit areas and hereby enjoining Under paragraph (c) of Section 118, the settlement of a boundary
[respondents], their agents, representatives, their attorneys, the dispute involving municipalities or component cities of different
SCAA or any persons acting in their behalf to allow provinces shall be jointly referred for settlement to the respective
petitioners/permittees, their agents, representatives and sanggunians or the provincial boards of the different provinces
vehicles to enter, travel into the mining site areas of plaintiffs involved. Section 119 of the Local Government Code gives a
without any restrictions, preventions and/or harassment of the dissatisfied party an avenue to question the decision of the
purpose of conducting mining activities thereat; sanggunian to the RTC having jurisdiction over the area, viz:
3. Further restraining and enjoining the respondents, their Section 119. Appeal. - Within the time and manner prescribed by the
attorneys, agents and/or representatives, the SCAA or its Rules of Court, any party may elevate the decision of
officers and such other persons acting for and in their behalf the sanggunian concerned to the proper Regional Trial Court having
from preventing, prohibiting or harassing the [petitioners], their jurisdiction over the area in dispute x x x.
agents or authorized representatives, their vehicles, tools and Article 17, Rule III of the Rules and Regulations Implementing The
other mining paraphernalia’s from entering, traveling into the Local Government Code of 1991 outlines the procedures governing
mining site using and passing through the most accessible boundary disputes, which succinctly includes the filing of the proper
concession roads of [respondents], such as but not limited to petition, and in case of failure to amicably settle, a formal trial will be
Road 5M and spurs within PICOP’s TLA 43 areas. conducted and a decision will be rendered thereafter. An aggrieved
There being no evidentiary proof of actual and compensatory party can appeal the decision of the sanggunian to the appropriate
damages, and in the absence of fraud or evident bad faith on the RTC. Said rules and regulations state:
part of defendants, especially PICOP, which apparently is exercising Article 17. Procedures for Settling Boundary Disputes. – The
its right to litigate, this Court makes no finding as to actual, following procedures shall govern the settlement of boundary
compensatory and moral damages nor attorney’s fees.5 disputes:
Respondent PICOP appealed the RTC decision. (a) Filing of petition - The sanggunian concerned may initiate
In a Decision dated 19 June 2000, the Court of Appeals reversed the action by filing a petition, in the form of a resolution, with
RTC Decision and dismissed the complaint of respondents. the sanggunian having jurisdiction over the dispute.
In setting aside the RTC Decision, the Court of Appeals stated that (b) Contents of petition - The petition shall state the grounds,
the RTC erred in passing upon the issue of the boundary dispute reasons or justifications therefore.
between the provinces of Davao Oriental and Surigao del Sur since (c) Documents attached to petition - The petition shall be
the resolution of the boundary dispute primarily resides with the accompanied by:
sangguniang panlalawigans of the two provinces and the RTC has 1. Duly authenticated copy of the law or statute creating the
only appellate jurisdiction over the case, pursuant to the Local LGU or any other document showing proof of creation of
Government Code of 1991. The Court of Appeals also said that the the LGU;
governor has no power to issue small-scale mining permits since 2. Provincial, city, municipal, or barangay map, as the case
such authority under Section 9 of Republic Act No. 7076 is vested may be, duly certified by the LMB.
with the Provincial Mining Regulatory Board. 3. Technical description of the boundaries of the LGUs
The disposition of the Court of Appeals reads: concerned;
WHEREFORE, premises considered, the appealed decision in Civil 4. Written certification of the provincial, city, or municipal
Case No. 489 is hereby REVERSED and SET ASIDE and a new one assessor, as the case may be, as to territorial jurisdiction
is hereby rendered dismissing the complaint filed by [petitioners].6 over the disputed area according to records in custody;
Petitioners filed a motion for reconsideration, which was denied by 5. Written declarations or sworn statements of the people
the Court of Appeals in its Order dated 10 November 2000. residing in the disputed area; and
Hence, the instant petition.
6. Such other documents or information as may be required permits and for mining contracts are vested in the Provincial/City
by the sanggunian hearing the dispute. Mining Regulatory Board. Composed of the DENR representative, a
(d) Answer of adverse party - Upon receipt by representative from the small-scale mining sector, a representative
the sanggunian concerned of the petition together with the from the big-scale mining industry and a representative from an
required documents, the LGU or LGUs complained against shall environmental group, this body is tasked to approve small-scale
be furnished copies thereof and shall be given fifteen (15) mining permits and contracts.
working days within which to file their answers. In the case under consideration, petitioners filed their small-scale
(e) Hearing - Within five (5) working days after receipt of the mining permits on 23 August 1991, making them bound by the
answer of the adverse party, the sanggunianshall hear the case procedures provided for under the applicable and prevailing statute,
and allow the parties concerned to present their respective Republic Act No. 7076. Instead of processing and obtaining their
evidences. permits from the Provincial Mining Regulatory Board, petitioners
(f) Joint hearing - When two or more sanggunians jointly hear a were able to get the same from the governor of Davao del Norte.
case, they may sit en banc or designate their respective Considering that the governor is without legal authority to issue said
representatives. Where representatives are designated, there mining permits, the same permits are null and void.
shall be an equal number of representatives from Based on the discussions above, the Court of Appeals is correct in
each sanggunian. They shall elect from among themselves a finding that petitioners have no right to enter into and to conduct
presiding officer and a secretary. In case of disagreement, mining operations within the disputed lands under the infirmed small-
selection shall be by drawing lot. scale mining permits.
(g) Failure to settle - In the event the sanggunian fails to In fine, this Court defers to the findings of the Court of Appeals, there
amicably settle the dispute within sixty (60) days from the date being no cogent reason to veer away from such findings.
such dispute was referred thereto, it shall issue a certification to WHEREFORE, the petition is DENIED. The Decision of the Court of
the effect and copies thereof shall be furnished the parties Appeals dated 19 June 2000 and its Resolution dated 10 November
concerned. 2000 reversing the 26 November 1993 Decision of the Regional Trial
(h) Decision - Within sixty (60) days from the date the Court of Banganga, Davao Oriental, Branch 7, are hereby
certification was issued, the dispute shall be formally tried and
decided by the sanggunian concerned. Copies of the decision THE CIVIL SERVICE G.R. No. 187858 COMMISSION,
shall, within fifteen (15) days from the promulgation thereof, be - versus - RICHARD G. CRUZ,Respondent. AUGUST 9, 2011
furnished the parties concerned, DILG, local assessor, This petition for review on certiorari assails the
COMELEC, NSO, and other NGAs concerned. decision and the resolution[2] of the Court of Appeals (CA) in CA-
[1]

(i) Appeal - Within the time and manner prescribed by the Rules G.R. SP No. 105410. These assailed CA rulings reversed and set
of Court, any party may elevate the decision of aside the ruling of the Civil Service Commission (CSC) in Resolution
the sanggunian concerned to the proper Regional Trial Court No. 080305[3] that denied respondent Richard G. Cruzs prayer for the
having jurisdiction over the dispute by filing therewith the award of back salaries as a result of his reinstatement to his former
appropriate pleading, stating among others, the nature of the position.
dispute, the decision of the sanggunian concerned and the
reasons for appealing therefrom. The Regional Trial Court shall THE FACTS
decide the case within one (1) year from the filing thereof. The respondent, Storekeeper A of the City of Malolos Water District
Decisions on boundary disputes promulgated jointly by two (2) (CMWD), was charged with grave misconduct and dishonesty by
or more sangguniang panlalawigans shall be heard by the CMWD General Manager (GM) Nicasio Reyes. He allegedly uttered
Regional Trial Court of the province which first took cognizance a false, malicious and damaging statement ( Masasamang tao ang
of the dispute. mga BOD at General Manager) against GM Reyes and the rest of
The records of the case reveal that the instant case was initiated by the CMWD Board of Directors (Board); four of the respondents
petitioners against respondents predicated on the latter’s refusal to subordinates allegedly witnessed the utterance. The dishonesty
allow the former entry into the disputed mining areas. This is not a charge, in turn, stemmed from the respondents act of claiming
case where the sangguniang panlalawigans of Davao Oriental and overtime pay despite his failure to log in and out in the computerized
Surigao del Sur jointly rendered a decision resolving the boundary daily time record for three working days.
dispute of the two provinces and the same decision was elevated to
the RTC. Clearly, the RTC cannot exercise appellate jurisdiction over The respondent denied the charges against him. On the charge of
the case since there was no petition that was filed and decided by grave misconduct, he stressed that three of the four witnesses
the sangguniang panlalawigans of Davao Oriental and Surigao del already retracted their statements against him. On the charge of
Sur. Neither can the RTC assume original jurisdiction over the dishonesty, he asserted that he never failed to log in and log out. He
boundary dispute since the Local Government Code allocates such reasoned that the lack of record was caused by technical computer
power to the sangguniang panlalawigans of Davao Oriental and problems. The respondent submitted documents showing that he
Surigao del Sur. Since the RTC has no original jurisdiction on the rendered overtime work on the three days that the CMWD
boundary dispute between Davao Oriental and Surigao del Sur, its questioned.
decision is a total nullity. We have repeatedly ruled that a judgment
rendered by a court without jurisdiction is null and void and may be GM Reyes preventively suspended the respondent for 15 days.
attacked anytime.8 It creates no rights and produces no effect. In fact Before the expiration of his preventive suspension, however, GM
it remains a basic fact in law that the choice of the proper forum is Reyes, with the approval of the CMWD Board, found the respondent
crucial as the decision of a court or tribunal without jurisdiction is a guilty of grave misconduct and dishonesty, and dismissed him from
total nullity. A void judgment for want of jurisdiction is no judgment at the service.[4]
all. It cannot be the source of any right nor the creator of any
obligation. All acts performed pursuant to it and all claims emanating CSC RULING
from it have no legal effect.9 The respondent elevated the findings of the CMWD and his
Moreover, petitioners’ small-scale mining permits are legally dismissal to the CSC, which absolved him of the two charges and
questionable. Under Presidential Decree No. 1899, applications of ordered his reinstatement. In CSC Resolution No. 080305, the CSC
small-scale miners are processed with the Director of the Mines and found no factual basis to support the charges of grave misconduct
Geo-Sciences Bureau. Pursuant to Republic Act No. 7076, which and dishonesty.
took effect10 on 18 July 1991, approval of the applications for mining
In ruling that the respondent was not liable for grave CSCs position
misconduct, the CSC held: The CSC submits that the CA erred in applying the ruling
in Bangalisan, requiring as a condition for entitlement to back
Cruz was adjudged guilty of grave misconduct for his salaries that the government employee be found innocent of the
alleged utterance of such maligning charge and that the suspension be unjustified. CSC Resolution No.
statements, MASASAMANG TAO ANG MGA BOD AT 080305 did not fully exculpate the respondent but found him liable
GENERAL MANAGER. However, such utterance, even if it for a lesser offense. Likewise, the respondents preventive
were true, does not constitute a flagrant disregard of rule suspension pending appeal was justified because he was not
or was actuated by corrupt motive. To the mind of the exonerated.
Commission, it was a mere expression of disgust over the
management style of the GM and the Board of Directors, The CSC also submits that the factual considerations
especially when due notice is taken of the fact that the in Bangalisan are entirely different from the circumstances of the
latter officials were charged with the Ombudsman for present case. In Bangalisan, the employee, Rodolfo Mariano, a
various anomalous transactions.[5] public school teacher, was charged with grave misconduct for
allegedly participating, together with his fellow teachers, in an illegal
In ruling that the charge of dishonesty had no factual basis, mass action. He was ordered exonerated from the misconduct
the CSC declared: charge because of proof that he did not actually participate in the
mass action, but was absent from work for another reason. Although
Based on the records of the case, the Commission is not the employee was found liable for violation of office rules and
swayed that the failure of Cruz to record his attendance on regulations, he was considered totally exonerated because his
April 21 and 22, 2007 and May 5, 2007, while claiming infraction stemmed from an act entirely different (his failure to file a
overtime pay therefor, amounts to dishonesty. Cruz duly leave of absence) from the act that was the basis of the grave
submitted evidence showing his actual rendition of work misconduct charge (the unjustified abandonment of classes to the
on those days. The residents of the place where he prejudice of the students).
worked attested to his presence thereat on the days in The CSC argues that in the present case, the charge of
question.[6] dishonesty and the infraction committed by the respondent stemmed
The CSC, however, found the respondent liable for violation from a single act his failure to properly record his attendance. Thus,
of reasonable office rules for his failure to log in and log out. It the respondent cannot be considered totally exonerated; the charge
imposed on him the penalty of reprimand but did not order the of dishonesty was merely downgraded to a violation of reasonable
payment of back salaries. office rules and regulations.
The CMWD and the respondent separately filed motions for
reconsideration against the CSC ruling. CMWD questioned the Accordingly, the CSC posits that the case should have been decided
CSCs findings and the respondents reinstatement. The respondent, according to our rulings in Jacinto v. CA[10] and De la Cruz v.
for his part, claimed that he is entitled to back salaries in light of his CA[11] where we held the award of back salaries to be inappropriate
exoneration from the charges of grave misconduct and dishonesty. because the teachers involved were not fully exonerated from the
The CSC denied both motions. charges laid against them.

Both the CMWD and the respondent elevated the CSC The respondents position
ruling to the CA via separate petitions for review under Rule 43 of
the Rules of Court. The CA dismissed the CMWDs petition and this The respondent maintains that he is entitled to reinstatement and
ruling has lapsed to finality.[7] Hence, the issue of reinstatement is back salaries because CSC Resolution No. 080305 exonerated him
now a settled matter. As outlined below, the CA ruled in the from the charges laid against him; for the purpose of entitlement to
respondents favor on the issue of back salaries. This ruling is the back salaries, what should control is his exoneration from the
subject of the present petition with us. charges leveled against him by the CMWD. That the respondent was
found liable for a violation different from that originally charged is
CA RULING immaterial for purposes of the back salary issue.
Applying the ruling in Bangalisan v. Hon. CA,[8] the CA found merit in
the respondents appeal and awarded him back salaries from the The respondent also asserts that the Bangalisan ruling squarely
time he was dismissed up to his actual reinstatement. The CA applies since the CSC formally admitted in its Comment to CMWDs
reasoned out that CSC Resolution No. 080305 totally exonerated the petition for review before the CA that the penalty of reprimand is not
respondent from the charges laid against him. The CA considered a reduced penalty for the penalty of dismissal imposable for grave
the charge of dishonesty successfully refuted as the respondent misconduct and dishonesty.[12]
showed that he performed overtime service. The CA thereby rejected
the CSCs contention that the charge of dishonesty had been merely THE COURTS RULING
downgraded to a lesser offense; the CA saw the finding in CSC
Resolution No. 080305 to be for an offense (failing to properly record We deny the petition for lack of merit.
his attendance) entirely different from the dishonesty charge The issue of entitlement to back salaries, for the period of
because their factual bases are different. Thus, to the CA, CSC suspension pending appeal,[13] of a government employee who had
Resolution No. 080305 did not wholly restore the respondents rights been dismissed but was subsequently exonerated is settled in our
as an exonerated employee as it failed to order the payment of his jurisdiction. The Courts starting point for this outcome is the no work-
back salaries. The CA denied the CSCs motion for reconsideration. no pay principle public officials are only entitled to compensation if
they render service. We have excepted from this general principle
ISSUE and awarded back salaries even for unworked days to illegally
WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK dismissed or unjustly suspended employees based on the
SALARIES AFTER THE CSC ORDERED HIS REINSTATEMENT TO constitutional provision that no officer or employee in the civil service
HIS FORMER POSITION, CONSONANT WITH THE CSC RULING shall be removed or suspended except for cause provided by law;
[14]
THAT HE WAS GUILTY ONLY OF VIOLATION OF REASONABLE to deny these employees their back salaries amounts to
OFFICE RULES AND REGULATIONS.[9] unwarranted punishment after they have been exonerated from the
charge that led to their dismissal or suspension.[15]
In the 1961 case of Gonzales v. Hon. Hernandez, etc. and
The present legal basis for an award of back salaries is Fojas[22] interpreting the same provision, the Court first laid down the
Section 47, Book V of the Administrative Code of 1987. requisites for entitlement to back salaries. Said the Court:

Section 47. Disciplinary Jurisdiction. x x x. A perusal of the decisions of this Court[23] x x x show[s]
that back salaries are ordered paid to an officer or
(4) An appeal shall not stop the decision from being an employee only if he is exonerated of the charge
executory, and in case the penalty is suspension or against him and his suspension or dismissal is found
removal, the respondent shall be considered as having and declared to be illegal. In the case at bar, [the
been under preventive suspension during the pendency of employee] was not completely exonerated, because
the appeal in the event he wins an appeal. (italics ours) although the decision of the Commissioner of Civil Service
[ordering separation from service] was modified and [the
This provision, however, on its face, does not support a claim for employee] was allowed to be reinstated, the decision
back salaries since it does not expressly provide for back salaries [imposed upon the employee the penalty of two months
during this period; our established rulings hold that back salaries suspension without pay]. [emphasis and underscoring
may not be awarded for the period of preventive suspension [16] as ours]
the law itself authorizes its imposition so that its legality is beyond Obviously, no exoneration actually resulted and no back salary was
question. due; the liability for the offense charged remained, but a lesser
penalty was imposed.
To resolve the seeming conflict, the Court crafted two
conditions before an employee may be entitled to back salaries: In Villamor, et al. v. Hon. Lacson, et al., [24] the City Mayor
a) the employee must be found innocent of the charges and b) his ordered the dismissal from the service of city employees after finding
suspension must be unjustified.[17] The reasoning behind these them guilty as charged. On appeal, however, the decision was
conditions runs this way: although an employee is considered under modified by considering the suspension of over one year x x x,
preventive suspension during the pendency of a successful appeal, already suffered x x x [to be] sufficient punishment [25] and by ordering
the law itself only authorizes preventive suspension for a fixed their immediate reinstatement to the service. The employees
period; hence, his suspension beyond this fixed period is unjustified thereupon claimed that under Section 695 of the RAC, the
and must be compensated. punishment of suspension without pay cannot exceed two (2)
The CSCs rigid and mechanical application of these two conditions months. Since the period they were not allowed to work until their
may have resulted from a misreading of our rulings on the matter; reinstatement exceeded two months, they should be entitled to back
hence, a look at our jurisprudence appears in order. salaries corresponding to the period in excess of two months. In
Basis for award of back salaries denying the employees claim for back salaries, the Court held:

The Court had the occasion to rule on the issue of The fallacy of [the employees] argument springs from their
entitlement to back salaries as early as 1941,[18] when Section 260 of assumption that the modified decision had converted the
the Revised Administrative Code of 1917 (RAC)[19] was the governing penalty to that of suspension. The modified decision
law. The Court held that a government employee, who was connotes that although dismissal or resignation would be
suspended from work pending final action on his administrative case, the proper penalty, the separation from work for the period
is not entitled to back salaries where he was ultimately removed due until their reinstatement, would be deemed sufficient. Said
to the valid appointment of his successor. No exoneration or decision did not, in the least, insinuate that suspension
reinstatement, of course, was directly involved in this case; thus, the should have been the penalty.
question of back salaries after exoneration and reinstatement did not
directly arise. The Court, however, made the general statement that: x x x [T]he modified decision did not
exonerate the petitioners. x x x And even if we consider
As a general proposition, a public official is not the punishment as suspension, before a public official or
entitled to any compensation if he has not rendered employee is entitled to payment of salaries withheld, it
any service, and the justification for the payment of should be shown that the suspension
salary during the period of suspension is that the was unjustified or that the employee was innocent of the
suspension was unjustified or that the official was charges proffered against him.[26]
innocent. Hence, the requirement that, to entitle to
payment of salary during suspension, there must be either On the whole, these rulings left the application of the
reinstatement of the suspended person or exoneration if conditions for the award of back salaries far from
death should render reinstatement impossible. clear. Jurisprudence did not strictly observe the requirements earlier
[20]
(emphasis and underscoring ours) enunciated in Gonzales as under subsequent rulings, the innocence
of the employee alone served as basis for the award of back
In Austria v. Auditor General,[21] a high school principal, who salaries.
was penalized with demotion, claimed payment of back salaries from
the time of his suspension until his appointment to the lower position The innocence of the employee as sole basis for an
to which he was demoted. He argued that his later appointment even award of back salaries
if only to a lower position of classroom teacher amounted to a
reinstatement under Section 260 of the RAC. The Court denied his In Tan v. Gimenez, etc., and Aguilar, etc.,[27] we ruled that
claim, explaining that the reinstatement under Section 260 of the the payment of back salary to a government employee, who was
RAC refers to the same position from which the subordinate officer illegally removed from office because of his eventual exoneration on
or employee was suspended and, therefore, does not include appeal, is merely incidental to the ordered reinstatement.
demotional appointments. The word reinstatement was apparently
equated to exoneration. Tan was subsequently reiterated in Taala v. Legaspi, et al.,
[28]
a case involving an employee who was administratively dismissed
from the service following his conviction in the criminal case arising
from the same facts as in the administrative case. On appeal,
however, he was acquitted of the criminal charge and was ultimately
ordered reinstated by the Office of the President. Failing to secure
his actual reinstatement, he filed a mandamus petition to compel his These cited cases illustrate that a black and white observance of the
superiors to reinstate him and to pay his back salaries from the date requisites in Gonzales is not required at all times. The common
of his suspension to the date of his actual reinstatement. We found thread in these cases is either the employees complete
merit in his plea and held: exoneration of the administrative charge against him (i.e., the
employee is not found guilty of any other offense), or the employees
[The employee] had been acquitted of the criminal acquittal of the criminal charge based on his innocence. If the case
charges x x x, and the President had reversed the presented falls on either of these instances, the conditions laid down
decision x x x in the administrative case which ordered his in Gonzales become the two sides of the same coin; the requirement
separation from the service, and the President had that the suspension must be unjustified is automatically subsumed in
ordered his reinstatement to his position, it results that the the other requirement of exoneration.
suspension and the separation from the service of the
[employee] were thereby considered illegal. x x x. Illegal suspension as sole basis for an award of back
salaries
x x x [In this case,] by virtue of [the Presidents
order of reinstatement], [the employees] suspension and By requiring the concurrence of the two
separation from the service x x x was thereby declared conditions, Gonzales apparently made a distinction between
illegal, so that for all intents and purposes he must be exoneration and unjustified suspension/dismissal. This distinction
considered as not having been separated from his office. runs counter to the notion that if an employee is exonerated, the
The lower court has correctly held that the [employee] is exoneration automatically makes an employees suspension
entitled to back salaries.[29] unjustified. However, in Abellera v. City of Baguio, et al.,[41] the Court
had the occasion to illustrate the independent character of these two
The Taala ruling was reiterated in Cristobal v. Melchor, conditions so that the mere illegality of an employees suspension
Tan, Jr. v. Office of the President,[31] De Guzman v.
[30]
could serve as basis for an award of back salaries.
CSC[32] and Del Castillo v. CSC[33] - cases involving government
employees who were dismissed after being found administratively Abellera, a cashier in the Baguio City Treasurers Office,
liable, but who were subsequently exonerated on appeal. was ordered dismissed from the service after being found guilty of
dishonesty and gross negligence. Even before the period to appeal
In Garcia v. Chairman Commission on Audit ,[34] the Court expired, the City of Baguio dismissed him from the service. On
held that where the employee, who was dismissed after being found appeal, however, the penalty imposed on him was reduced to two
administratively liable for dishonesty, was acquitted on a finding of months suspension, without pay although the appealed decision was
innocence in the criminal case (for qualified theft) based on the same affirmed in all other respects.
acts for which he was dismissed the executive pardon granted him in
the administrative case (in light of his prior acquittal) entitled him to When the issue of Abelleras entitlement to back salaries
back salaries from the time of his illegal dismissal up to his actual reached the Court, we considered the illegality of Abelleras
reinstatement. suspension - i.e., from the time he was dismissed up to the time of
his actual reinstatement to be a sufficient ground to award him back
The above situation should be distinguished from the case salaries.
of an employee who was dismissed from the service after conviction
of a crime and who was ordered reinstated after being granted The rule on payment of back salaries during the
pardon. We held that he was not entitled to back salaries since he period of suspension of a member of the civil service who
was not illegally dismissed nor acquitted of the charge against him.[35] is subsequently ordered reinstated, is already settled in
this jurisdiction. Such payment of salaries corresponding
Incidentally, under the Anti-Graft and Corrupt Practices Act, to the period when an employee is not allowed to work
[36]
if the public official or employee is acquitted of the criminal may be decreed not only if he is found innocent of the
charge/s specified in the law, he is entitled to reinstatement and the charges which caused his suspension (Sec. 35, RA
back salaries withheld during his suspension, unless in the 2260), but also whenthe suspension is unjustified.
meantime administrative proceedings have been filed against him.
In the present case, upon receipt of the [Civil Service
In Tan, Jr. v. Office of the President ,[37] the Court clarified Commissioners] decision x x x finding [Abellera] guilty, but
that the silence of Section 42 (Lifting of Preventive Suspension even before the period to appeal had expired,
Pending Administrative Investigation) of the Civil Service [the Baguio City officials] dismissed [Abellera] from the
Decree[38] on the payment of back salaries, unlike its predecessor, service and another one was appointed to replace
[39]
is no reason to deny back salaries to a dismissed civil servant him. [Abelleras] separation x x x before the decision
who was ultimately exonerated. of the Civil Service Commissioner had become final
was evidently premature. [The Baguio City officials]
Section 42 of P.D. No. 807, however, is really not in should have realized that [Abellera] still had the right to
point x x x [as] it does not cover dismissed civil servants appeal the Commissioner's decision to the Civil Service
who are ultimately exonerated and ordered reinstated to Board of Appeals within a specified period, and the
their former or equivalent positions. The rule in the latter possibility of that decision being reversed or modified.
[42]
instance, just as we have said starting with the case As it did happen on such appeal x x x the penalty
of Cristobal vs. Melchor is that when "a government official imposed by the Commissioner was reduced x x x to only 2
or employee in the classified civil service had been months suspension. And yet, by [the Baguio City officials]
illegally dismissed, and his reinstatement had later been action, [Abellera] was deprived of work for more than 2
ordered, for all legal purposes he is considered as not years. Clearly, Abelleras second suspension from
having left his office, so that he is entitled to all the rights office [i.e., from the time he was dismissed up to his
and privileges that accrue to him by virtue of the office that actual reinstatement] was unjustified, and the payment
he held."[40] of the salaries corresponding to said period is,
consequently, proper.[43] (emphases and underscoring him and his suspension or dismissal is found and declared to be
ours) illegal.[54]

The Court had the occasion to explain what constitutes


The import of the Abellera ruling was explained by the exoneration in Bangalisan v. Hon. CA,[55] the respondents cited
Court in the subsequent case of Yarcia v. City of Baguio[44] that case. In this case, the Secretary of Education found the public
involved substantially similar facts. The Court clarified that the award school teachers guilty as charged and imposed on them the penalty
of back salaries in Abellera was based on the premature execution of dismissal. On appeal, the CSC affirmed the Secretarys ruling but
of the decision (ordering the employees dismissal from the service), reduced the penalty imposed to suspension without pay. However,
resulting in the employees unjustified second suspension. Under the the CSC found one of the teachers (Mariano) guilty only of violation
then Civil Service Rules, the Commissioner of Civil Service had the of reasonable office rules and regulations, and only penalized her
discretion to order the immediate execution of his decision in with reprimand. None of the petitioning public school teachers were
administrative cases in the interest of public service. Unlike awarded back salaries.
in Abellera, this discretion was exercised in Yarcia; consequently, the
employees separation from the service pending his appeal remained On appeal to this Court, we awarded back salaries to
valid and effective until it was set aside and modified with the Mariano. We explained that since the factual premise of the
imposition of the lesser penalty.[45] administrative charges against him - i.e., his alleged participation in
the illegal mass actions, and his suspension - was amply rebutted,
The unjustified second suspension mentioned then Mariano was in effect exonerated of the charges against him
in Abellera actually refers to the period when the employee was and was, thus, entitled to back salaries for the period of his
dismissed from the service up to the time of his actual reinstatement. suspension pending appeal.
Under our present legal landscape, this period refers to suspension
pending appeal.[46] With respect to petitioner Rodolfo Mariano, payment
of his back wages is in order. A reading of the resolution of
In Miranda v. Commission on Audit,[47] the Court again had the [CSC] will show that he was exonerated of the charges
the occasion to consider the illegality of the suspension of the which formed the basis for his suspension. The Secretary
employee as a separate ground to award back salaries. Following of the DECS charged him with and he was later found
the filing of several administrative charges against him, Engr. guilty of grave misconduct x x x [and] conduct prejudicial
Lamberto Miranda was preventively suspended from June 2, to the best interest of the service x x x for his participation
1978 to May 7, 1986. He was reinstated on May 22, 1986. in the mass actions x x x. It was his alleged participation in
On October 7, 1986, the administrative case against him was finally the mass actions that was the basis of his preventive
dismissed for lack of evidence. When his claim for back salaries suspension and, later, his dismissal from the service.
(from the time he was preventively suspended up to his actual
reinstatement) was denied by the Commission on Audit, he brought However, the [CSC], in the questioned resolution,
a certiorari petition with this Court. made [the] finding that Mariano was not involved in the
"mass actions" but was absent because he was in Ilocos
In granting the petition, the Court ruled that since the Sur to attend the wake and interment of his grandmother.
law[48] limits the duration of preventive suspension to a fixed period, Although the CSC imposed upon him the penalty of
Engr. Mirandas suspension for almost eight (8) years is reprimand, the same was for his violation of reasonable
unreasonable and unjustified. Additionally, the Court observed that office rules and regulations because he failed to inform the
the dropping of the administrative case against Engr. Miranda for school or his intended absence and neither did he file an
lack of evidence is even an eloquent manifestation that the application for leave covering such absences.
suspension is unjustified.[49] The Court held:
However, with regard to the other petitioners, the
This being so, Engineer Miranda is entitled to backwages payment of their back wages must be denied. Although
during the period of his suspension as it is already settled the penalty imposed on them was only suspension, they
in this jurisdiction that a government official or employee is were not completely exonerated of the charges against
entitled to backwages not onlyif he is exonerated in the them. The CSC made specific findings that, unlike
administrative case but also when the suspension is petitioner Mariano, they indeed participated in the mass
unjustified.[50] (emphases and underscoring ours) actions. It will be noted that it was their participation in the
mass actions that was the very basis of the charges
Jurisprudential definition of exoneration against them and their subsequent suspension.[56]

The mere reduction of the penalty on appeal does not Bangalisan clearly laid down the principle that if the
entitle a government employee to back salaries if he was not exoneration of the employee is relative (as distinguished from
exonerated of the charge against him. This is the Courts teaching complete exoneration), an inquiry into the factual premise of the
in City Mayor of Zamboanga v. CA.[51] In this case, the employee was offense charged and of the offense committed must be made. If the
initially found guilty of disgraceful and immoral conduct and was administrative offense found to have been actually committed is of
given the penalty of dismissal by the City Mayor of Zamboanga. lesser gravity than the offense charged, the employee cannot be
On appeal, however, the CA limited the employees guilt to improper considered exonerated if the factual premise for the imposition of the
conduct and correspondingly reduced the penalty to six-months lesser penalty remains the same. The employee found guilty of a
suspension without pay with a stern warning that repetition of the lesser offense may only be entitled to back salaries when the offense
same or similar offense will be dealt with more severely."[52] The CA actually committed does not carry the penalty of more than one
also awarded him full backwages.[53] month suspension or dismissal.[57]

We held that the CA erred in awarding back salaries by Bangalisan reiterated that the payment of back salaries,
reiterating the principle that back salaries may be ordered paid to an during the period of suspension of a member of the civil service who
officer or employee only if he is exonerated of the charge against is subsequently ordered reinstated, may be decreed only if the
employee is found innocent of the charges which caused the
suspension and when the suspension is unjustified. This the claim that the rulings in Jacinto and De laCruz, not Bangalisan,
pronouncement was re-echoed in Jacinto v. CA,[58] De la Cruz v. CA, should apply. After due consideration, we see no reason why the
[59]
and Hon. Gloria v. CA.[60] Taking off from Bangalisan, the Court cited rulings and their application should be pitted against one
in De la Cruz categorically stated: another; they essentially espouse the same conclusions after
applying the two conditions for the payment of back salaries.
The issue of whether back wages may be awarded to
teachers ordered reinstated to the service after the Bangalisan, Jacinto and De la Cruz all stemmed from the
dismissal orders x x x were commuted by the CSC to six illegal mass actions of public school teachers in Metro Manila in
(6) months suspension is already settled. 1990. The teachers were charged with grave misconduct, gross
neglect of duty, and gross violation of civil service law, rules and
In Bangalisan v. Court of Appeals, we resolved the regulations, among others. The then Secretary of Education found
issue in the negative on the ground that the teachers were them guilty and dismissed them from the service. The CSC, on
neither exonerated nor unjustifiably suspended, two (2) appeal, ordered the teachers reinstated, but withheld the grant of
circumstances necessary for the grant of back their back salaries. The CSC found the teachers liable for conduct
wages in administrative disciplinary cases.[61] prejudicial to the best interest of the service and imposed on them
the penalty of suspension. The CSC reasoned that since the
In Hon. Gloria, involving the same factual situation teachers were not totally exculpated from the charge (but were found
as Bangalisan, the CA awarded the public school teachers back guilty of a lesser offense), they could not be awarded back salaries.
salaries - for the period beyond the allowable period of
preventive suspension - since they were ultimately exonerated. When these cases reached the Court, the issue of the
In affirming the CA, the Court teachers entitlement to back salaries was raised. The teachers
distinguished preventive suspension from suspension pending claimed that they were entitled to back salaries from the time of their
appeal for the purpose of determining the extent of an dismissal or suspension until their reinstatement, arguing that they
employees entitlement to back salaries. The Court ruled that were totally exonerated from the charges since they were found
under Executive Order (E.O.) No. 292, there are two kinds of guilty only of conduct prejudicial to the best interest of the service.
preventive suspension of civil service employees who are
charged with offenses punishable by removal or suspension: (i) Under this factual backdrop, we applied the two conditions
preventive suspension pending investigation[62] and (ii) and distinguished between the teachers who were absent from their
preventive suspension pending appeal;[63] compensation is due respective classes because they participated in the illegal mass
only for the period of preventive suspension pending action, on one hand, and the teachers who were absent for some
appeal should the employee be ultimately exonerated.[64] Citing other reason, on the other hand.
Floyd R. Mechem's A Treatise on the Law of Public Offices and
Officers,[65] Hon. Gloria ruled: With respect to the teachers who participated in the illegal
mass actions, we ruled that they were not entitled to back salaries
Thus, it is not enough that an employee is since they were not exonerated. We explained that liability for a
exonerated of the charges against him. In addition, his lesser offense, carrying a penalty less than dismissal, is not
suspension must be unjustified. The case of Bangalisan equivalent to exoneration. On the second condition, we ruled that
v. Court of Appeals itself similarly states that "payment of their suspension is not unjustified since they have given a ground for
salaries corresponding to the period [1] when an their suspension i.e., the unjustified abandonment of their classes to
employee is not allowed to work may be decreed if he is the prejudice of their students, the very factual premise of the
found innocent of the charges which caused his administrative charges against them for which they were suspended.
suspension and [2] when the suspension is unjustified.
[66]
(emphases and underscoring ours) With respect to the teachers who were away from their
classes but did not participate in the illegal strike, the Court awarded
A careful reading of these cases would reveal that a strict them back salaries, considering that: first, they did not commit the
observance of the second condition for an award of back salaries act for which they were dismissed and suspended; and second, they
becomes important only if the employee is not totally innocent were found guilty of another offense, i.e., violation of reasonable
of any administrative infraction. As previously discussed, where the office rules and regulations which is not penalized with suspension
employee is completely exonerated of the administrative charge or or dismissal. The Court ruled that these teachers were totally
acquitted in the criminal case arising from the same facts based on a exonerated of the charge, and found their dismissal and suspension
finding of innocence, the second requirement becomes subsumed in likewise unjustified since the offense they were found to have
the first. Otherwise, a determination of the act/s and offense/s committed only merited the imposition of the penalty of reprimand.
actually committed and of the corresponding penalty imposed has to
be made. These cases show the Courts consistent stand in
determining the propriety of the award of back salaries. The
Unjustified suspension government employees must not only be found innocent of the
On the suspension/dismissal aspect, this second condition is charges; their suspension must likewise be shown to be unjustified.
met upon a showing that the separation from office is not warranted
under the circumstances because the government employee gave The Present Case
no cause for suspension or dismissal. This squarely applies in cases We find that the CA was correct in awarding the respondent his
where the government employee did not commit the offense back salaries during the period he was suspended from work,
charged, punishable by suspension or dismissal (total exoneration); following his dismissal until his reinstatement to his former position.
or the government employee is found guilty of another offense for an The records show that the charges of grave misconduct and
act different from that for which he was charged. dishonesty against him were not substantiated. As the CSC found,
there was no corrupt motive showing malice on the part of the
Bangalisan, Jacinto and De la Cruz illustrate respondent in making the complained utterance. Likewise, the CSC
the application of the two conditions found that the charge of dishonesty was well refuted by the
Both the CA and the respondent applied Bangalisan to justify the respondents evidence showing that he rendered overtime work on
award of back salaries. The CSC argues against this position with the days in question.
We fully respect the factual findings of the CSC especially since the
CA affirmed these factual findings. However, on the legal issue of the
respondents entitlement to back salaries, we are fully in accord with
the CAs conclusion that the two conditions to justify the award of
back salaries exist in the present case.

The first condition was met since the offense which the
respondent was found guilty of (violation of reasonable rules and
regulations) stemmed from an act (failure to log in and log out)
different from the act of dishonesty (claiming overtime pay
despite his failure to render overtime work) that he was charged with.

The second condition was met as the respondents


committed offense merits neither dismissal from the service nor
suspension (for more than one month), but only reprimand.
In sum, the respondent is entitled to back salaries from the
time he was dismissed by the CMWD until his reinstatement to his
former position - i.e., for the period of his preventive suspension
pending appeal. For the period of his preventive suspension pending
investigation, the respondent is not entitled to any back salaries per
our ruling in Hon. Gloria.[67]

WHEREFORE, the petition is hereby DENIED. Costs


against the petitioner.