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22 SUPREME COURT REPORTS ANNOTATED

Pamantasan ng Lungsod ng Maynila vs. Intermediate


Appellate Court

No. L-65439. November 13, 1985.*

PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner,


vs. HON. INTERMEDIATE APPELLATE COURT, HON.
FILEMON FERNANDEZ, JR., HON. ALBINA
MANALODANS, as Commissioners of Civil Service
Commission and HERNANI P. ESTEBAN, respondents.

Administrative Law; Civil Service; Appointments; "Ad


interim," meaning and concept of.—From the arguments, it is easy
to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been
extended several "adinterim" appointments which petitioner
mistakenly understands as

______________

* FIRST DIVISION.

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Pamantasan ng Lungsod ng Maynila us. Intermediate Appellate


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appointments temporary in nature. Perhaps, it is the literal


translation of the word "ad interim" which creates such belief. The
term is defined by Black to mean "in the meantime" or for the
time being. Thus, an officer ad interim is one appointed to fill a
vacancy, or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (Black's Law
Dictionary, Revised Fourth Edition, 1978). But such is not the
meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban's appointments, the term is not
descriptive of the nature of the appointments given to him.
Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of Regents, which
is originally vested by the University Charter with the power of
appointment, is unable to act.
Same; Same; Same; "Ad interim" appointments; Person
authorized to issue ad interim appointments of officials of
Pamantasan ng Lungsod ng Maynila.—In other words, if the
Board of Regents is in session, the Pamantasan President merely
nominates while the Board issues the appointment. But when the
Board is not in session, the President is authorized to issue ad
interim appointments. Such appointments are permanent but
their terms are only until the Board disapproves them. If
confirmed, the appointee's term is converted into the regular term
inherent in the position.
Same; Same; Same; In case of conflict- between a notification
issued by the Secretary of the university of a board resolution and
the resolution itself of the Board of Regents, the resolution prevails;
Reason.—Petitioner centers its arguments and tries to fix the
attention of the court to the fact that all notices of appointments,
renewals, and confirmation thereof all declare the same to be
temporary, carrying fixed commencement and termination dates,
"unless sooner terminated." As expressed by public respondent,
"xxx. This stubborn insistence is anchored on the notifications of
temporary appointment sent to private respondent Esteban by the
Secretary of Pamantasan. However, this insistence deliberately
ignores x x x Resolution No. 485 dated June 20, 1973 of the Board
of Regents x x x". And correctly so argued. "In case of conflict
between a notification issued by the Secretary of the University
which is supposed to reflect the true content of a Board Resolution
and the Resolution itself of said Board of Regents of said
University, the latter is controlling for obvious reasons. The
Secretary of the

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Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate


Court

University has no authority to alter or add something which is not


provided for in the Resolution of the Board of Regents x x x".
Same; Same; Same; Absence of express indication in the ad in
terim appointment that it is temporary, the appointment issued is
considered permanent; Reason.—There is nothing in the
Pamantasan Board of Regents' Resolution No. 485 which suggests
that respondent Esteban's appointment was temporary. The
Board's action was to confirm or reject an existing ad interim
appointment. If respondent's appointment was intended to be
temporary, it should have been expressly stated. It cannot be
made to rest on inconclusive evidence, specially because a
temporary appointment divests the temporary appointee of the
constitutional security of tenure against removal without cause
even if he is a civil service eligible." (Tolentino v. de Jesus, 56
SCRA 167, cited in Cortez vs. Bartolome, 100 SCRA 1).
Same; Same; Same; Proofs of permanent appointment of
respondent by the university in case at bar.—Further supporting
private respondent's stand is the list of permanent personnel
which was submitted to the Commission by the university
president herself on March 3, 1975 for recognition of their
permanent status by the Commission. The appellant's name was
the first in that list (Exhibit 8-B). The permanent status of
private respondent's appointment as VicePresident for
Administration at Pamantasan was recognized by the Civil
Service Commission in its 1st Indorsement dated April 18, 1975
upon the request of petitioner. This fact is borne out by the
records and the evidence and found as such by the Intermediate
Appellate Court, the Civil Service Commission as well as the
Court of First Instance.
Same; Same; Same; Power to appoint, discretionary on
appointing power; Limits of discretion; General rule that the power
of appointment must reamin unhampered by judicial intervention;
Exception.—The power to appoint is, in essence, discretionary.
The appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself who
is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing
power that may be availed of without liability, provided however,
that it is exercised in good faith for the advancement of the
employer's interest and not for the purpose of defeating or
circumventing the rights of the employees under

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Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate


Court
special laws or under valid agreements, and provided further,
that such prerogatives are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner, or out of malice or spite
(Government Service and Insurance System v. Ayroso, 96 SCRA
213). The general rule is that the power of appointment must
remain unhampered by judicial intervention. However, when the
law is violated or when there is grave abuse of discretion we have
to step in.
Same; Same; Same; Constitutional Law, Security of tenure;
Permanent appointees entitled to security of tenure under the Civil
Service Law and the Constitution; Allegations of incompetence
against appointee not proved; Dismissal of respondent appointee
not for cause, but because of his temporary appointment.—We
cannot also sanction the termination of private respondent's
services by petitioner. With his appointment now settled as
permanent, the Civil Service Law and the Constitution guarantee
private respondent's security of tenure as "No officer or employee
in the Civil Service shall be suspended or dismissed except for
cause as provided by law" (Section 3, Article XII, the 1973
Philippine Constitution). Petitioner has failed to substantiate its
allegations of incompetence against respondent Esteban whose
record of government service appears quite impressive. Esteban
was not dismissed for cause after proper proceedings. His
appointment was terminated on the ground that it was
temporary.
Same; Same; Same; Illegal dismissal from employment;
Court's policy to award three years backwages; Exception in case
at bar, Reason; Award of five years backwages, proper.—lt is not
clear from the records as to when Dr. Esteban actually ceased
working for Pamantasan. Under the law, he is entitled to full pay,
allowances, and other benefits during the period that he was
actually reporting for work and rendering services in whatever
capacity, whether teaching, research or administration. As to
backwages, the amount is generally based on the equivalent of
three years' earnings (Philippine Airlines, Inc. v. National Labor
Relations Commission, 126 SCRA 223; Insular Life Assurance
Co., Ltd. v. National Labor Relations Commission, 135 SCRA
697). In line with the policy adopted by this Court to do away with
the attendant delay in awarding backwages because of the
extended hearings necessary to prove the earnings, elsewhere of
each and every employee (Philippine Airlines, Inc. v. National
Labor Relations Commission, supra, citing Mercury Drug Co., Inc.
v. Court of Industrial Relations, 56 SCRA 694), the formula for
computing the

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Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate


Court

same calls for fixing the award of backwages to three years.


However, in Dy Keh Beng v. International Labor and Marine
Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of
Industrial Relations, 56 SCRA 694, 712), we held the amount of
backwages to be "subject to deduction where there are mitigating
circumstances in favor of the employer, but subject to increase
where there are aggravating circumstances. (Tupas Local Chapter
No. 979, et al. v. National Labor Relations Commission, et al., G.
R. Nos. 60532-33, November 5, 1985; Progressive Development
Corporation v. Progressive Employees' Union, 80 SCRA 434.)
Considering that in the case at bar, more than ten (10) years have
elapsed from the date respondent Esteban was unfairly and
illegally dismissed and petitioner Pamantasan is guilty of bad
faith in misleading Dr. Esteban as to the true nature of his
appointment and "studiously suppressing" material data to
effectively deprive the latter of his rights as a permanent
employee, we find an award of five (5) years backpay to
respondent Dr. Esteban just and equitable under the
circumstances, assuming he has not reached retirement age in the
meantime.

PETITION for certiorari to review the decision of the


Intermediate Appellate Court.

The facts are stated in the opinion of the Court.


     Office of the Legal Officer for petitioner.

GUTIERREZ, JR., J.:

The sole issue raised in this petition is the status of


respondent Hernani Esteban's appointment as Vice-
President for Administration of the Pamantasan ng
Lungsod ng Maynila that is, whether or not he holds the
position in a permanent capacity as to guarantee his
security of tenure.
Respondent Esteban asserts that his appointment is
permanent whereas the petitioner maintains its temporary
and contractual nature such that the respondent may be
dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had
been a permanent employee in the government service for
twenty-five (25) years. Until May 20, 1973, he was officially
connected with the Philippine College of Commerce, a
state-owned educational
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fAppellate Court

institution as its Vice-President for Academic Affairs.


Shortly before that date, the Board of Trustees of the
College in a bold move to streamline the college
organization resolve to abolish the position of Vice-
President for Academic Affairs. Private respondent was
given the option to continue teaching at the Philippine
College of Commerce which he accepted until his transfer
to the Pamantasan ng Lungsod ng Maynila, upon the
invitation of its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended
an ad interim temporary appointment as Vice-President for
Administration by Dr. Consuelo Blanco. Dr. Esteban
received from the Secretary of Pamantasan a 'Notification
of Confirmation of Temporary Appointment' dated June 28,
1973. His appointment was 'effective May 21, 1973 until
June 30, 1974, unless sooner terminated.' On July 5, 1974,
the Secretary of Pamantasan sent him a 'Notification of
Renewal of Temporary Appointment' indicating that his
appointment was renewed 'effective July 1, 1974 until
August 31, 1974.'
A month later, on August 30, 1974, he received from the
University Secretary another 'notification of renewal of
temporary appointment' informing him that the Board of
Regents, on recommendation of the President of the
University approved the renewal of his appointment
'effective September 1, 1974 until June 30, 1975' with an
increased salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his
salary, Dr. Esteban was notified that his appointment as
vicepresident for administration at a salary of P17,600 per
annum had been renewed effective September 1, 1974 until
June 30, 1975.
On June 26, 1975, he received another 'Notification of
Renewal of Temporary Appointment' as Vice-President for
Administration with a salary of P21,276 per annum,
'effective July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. Esteban discovered that he was
not included in the list of employees recommended for
permanent appointments. He wrote Dr. Consuelo Blanco
requesting the con-
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28 SUPREME COURT REPORTS ANNOTATED
Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court

version of his temporary appointment to a permanent one,


considering his two and half (2½) years service.
On July 26, 1975, Dr. Esteban received an answer to his
request from President Blanco who indicated various
reasons for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification
of Ad Interim Appointment notifying him that the
president of the university had approved his appointment
as Professor III with a salary of P15,600 per annum
'effective August 1, 1975'. He was further designated as
Director of the Institute of Continuing Education and
Community Service with an honorarium of P5,676 per
annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a
memorandum circular terminating Dr. Esteban's
appointment as Vice-President for Administration effective
July 31, 1975. His appointment dated June 26, 1975 and
effective until June 30, 1976 had been withdrawn before it
could be confirmed by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed
to the Civil Service Commission for the protection of his
tenure in the Pamantasan.
On October 9, 1975, the Civil Service Commission ruled
that:

"The temporary nature of the appointment issued to Dr. Esteban


as Vice President for Administration is conceded. Such being the
case, his services may be terminated at any time with or without
cause. As to his request that he be extended permanent
appointment, or that his temporary appointment be converted
into a permanent one, it may be stated that the issuance of such
appointment is addressed to the sound discretion of the
appointing official."

Dr. Esteban filed a motion for the reconsideration of that


ruling. On January 14, 1976, the Civil Service Commission
ruled favorably on Dr. Esteban's motion. It stated that he
was fully qualified for the position of Vice-President for
Administration and certified him "for appointment therein
under
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Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court

permanent status." The Commission stated:

"In view thereof, and in the absence of any apparent justifiable


reason why Dr. Esteban should remain under temporary status
for the length of time prior to the withdrawal of his appointment
as Vice President for Administration in that University, and as it
further appears that he is fully qualified for the position in
question in view of his extensive experience in the fields of public
administration and management, this Commission hereby certifies
him for appointment therein under permanent status."

The Pamantasan, in turn, asked for the reconsideration of


that ruling.
The Commission, in an undated Resolution No. 75,
Series of 1976, came out with a statement which confused
more than it clarified. It stated that its certification should
not be interpreted as directing the reinstatement of Dr.
Esteban because 'it was never intended to be so.'
On May 28, 1976 Esteban asked the Commission to
reconsider Resolution No. 75, Series of 1976. He also asked
for the payment of the salaries and allowances due him as
of September 1975, which the Pamantasan had withheld.
His request was denied by the Commission in its undated
resolution No. 158, Series of 1976.
On September 15, 1976, Esteban reiterated his request
for payment of his salaries.
On September 20, 1976, he asked for a review of the
Pamantasan's decision to terminate his appointment as
VicePresident for Administration.
On December 1, 1976, his request for payment of his
salaries was referred by the Commission to the treasurer of
the Pamantasan.
On July 6, 1977, the Commission again modified its
earlier resolution in his case. It ruled that Dr. Consuelo
Blanco, had no authority to extend to Dr. Esteban an ad
interim appointment as Vice President for Administration
as only the Board of Regents was empowered to do that
under Article 55 of the University Charter (Rep. Act 4196).
However, it ruled that, as
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Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court
a de facto officer, he was entitled to be paid the salary of
that position.
Dr. Esteban and the Pamantasan filed motions for
reconsideration of that ruling prompting the Commission to
order them to submit "all papers and documents pertinent
to that case."
On June 6, 1978, Presidential Decree No. 1409 was
issued creating a Merits System Board in the Civil Service
Commission to hear and decide cases brought before it on
appeal by officers and employees who feel aggrieved by the
determination of officials on personnel matters.
The Board required the Pamantasan to submit its
complete records on the appointment and termination of
Dr. Esteban as vice-president for administration.
While the records officer of the Pamantasan submitted
copies of the notices sent to Esteban regarding his
appointment as vice-president for administration, he did
not submit a copy of the Board's Resolution No. 485 passed
June 20, 1973 confirming the ad interim appointments of
several academic and non-academic personnel of said
university among which was that of Dr. Hernani Esteban
"effective May 21, 1973." He produced a copy of the
memorandum circular dated August 7, 1975 of the
President of the Pamantasan terminating Dr. Esteban's
service as of July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the
Commissioner directed the Pamantasan to submit any
document or documents directly or actually showing that
Dr. Hernani Esteban was appointed vice-president for
administration of the Pamantasan in a permanent
capacity.
On January 15, 1981, the Pamantasan by 2nd
Indorsement, despite the existence of Board Resolution No.
485, replied that "we cannot find any document showing
that Dr. Esteban was appointed x x x in a permanent
capacity."
In view of the Pamantasan's failure to produce the
minutes of the regular Board of Regents meeting on June
20, 1973 when Esteban's appointment was approved the
Commission in its Resolution No. 81-279 dated March 5,
1981, concluded that

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Appellate Court
there is truth to the claim of Dr. Esteban that his
appointment as Vice-President for Administration of the
Pamantasan was approved as permanent. It cited
Government of the Philippine Islands vs. Martinez, (44 Phil.
817) that when a party has it in his possession or power to
produce the best evidence of which the case in its nature is
susceptible and withholds it, the fair presumption is that
the evidence is withheld for some sinister motive and that
its production would thwart his evil or fraudulent purpose.
The Commission ruled that "Dr. Hernani Esteban had
been appointed Vice-President for Administration of
Pamantasan with permanent status and that the
temporary appointment issued to him did not alter his
permanent status as he had 'already acquired a vested
right as well as the right to security of tenure', that he
cannot unceremoniously removed therefrom, nor can the
status of his appointment be changed without cause, as
provided by law and after due process." The Commission
held that the termination of his services was obviously
illegal. It directed his immediate reinstatement to the
position of Vice-President for Administration of
Pamantasan and the payment of his back salaries,
allowances and other benefits which he failed to receive
from the time he was separated therefrom.
The Pamantasan filed a motion for reconsideration of
that resolution. It also submitted for the first time a copy of
Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April
23, 1981 chided the Pamantasan for having suppressed
said piece of evidence from which "the intention of, or the
accurate action taken by PLM Board of Regents on Dr.
Esteban's appointment in question, may be determined."
Following the decision of the Supreme Court in the case of
Summers v. Ozaeta, (81 Phil. 760), the Commission denied
the Pamantasan's motion for reconsideration and ruled
that "Upon confirmation of the Board of Regents of the ad
interim appointment of Dr. Esteban the same became
permanent."
Upon getting this ruling, the Pamantasan filed a
petition for certiorari against Dr. Esteban and Civil Service
Commis-
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32 SUPREME COURT REPORTS ANNOTATED


Pamantasan ng Lungsod ng Maynila vs. Intermediate
fAppellate Court
sioners, Filemon Fernandez, Jr. and Albina Manalo Dans.
The petition was docketed as Civil Case No. 139840 of the
Court of First Instance of Manila, Branch XIII.
On January 8,1982, the trial court rendered a decision
reversing the Commission's Resolution No. 81-279 and
adopted the earlier Commission Resolution dated July 6,
1977 holding that private respondent Dr. Esteban's
appointment was invalid, though he may be considered as a
de facto vice-president of the University up to October 9,
1975, the date when the Commission ruled that his
appointment was temporary and could be terminated at
any time.
The private respondent appealed to the Intermediate
Appellate Court.
On September 26, 1983, the respondent Intermediate
Appellate Court rendered a decision reversing the trial
court's decision. The dispositive portion of the appellate
decision reads:

"Wherefore, the appealed decision is hereby reversed and set


aside. The Pamantasan's petition for certiorari is denied.
Resolution No. 81-279 dated March 5, 1981, as well as Resolution
No. 81-510 dated April 23, 1981, of the respondent Civil Service
Commission, declaring as permanent the appointment of the
appellant Dr. Hernani Esteban as vice-president for
administration of the university under the Board of Regents'
Resolution No. 485 dated June 20, 1973, and ordering his
immediate reinstatement to that position with back salaries,
allowances and other benefits, is affirmed, provided he has not yet
reached the age of compulsory retirement from the government
service; otherwise, he shall be entitled to back salaries,
allowances and other benefits only up to the time he should have
been retired from the said position."

From the decision of the Intermediate Appellate Court and


after its motion for reconsideration had been denied
petitioner Pamantasan ng Lungsod ng Maynila filed the
present petition, now the subject of this review.
We find no error in the pronouncements of the
Intermediate Appellate Court. We rule in favor of the
respondents.
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From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation.
Private respondent had been extended several "ad-interim"
appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the
literal translation of the word "ad interim" which creates
such belief. The term is defined by Black to mean "in the
meantime" or for the time being. Thus, an officer ad
interim is one appointed to fill a vacancy, or to discharge
the duties of the office during the absence or temporary
incapacity of its regular incumbent (Black's Law
Dictionary, Revised Fourth Edition, 1978). But such is not
the meaning nor the use intended in the context of
Philippine law. In referring to Dr. Esteban's appointments,
the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the
manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime,
while the Board of Regents, which is originally vested by
the University Charter with the power of appointment, is
unable to act. Thus, we held in Summers v. Ozaeta (81 Phil.
760):

"x x x an ad interim appointment is one made in pursuance of


paragraph (4), section 10, Article VII, of the Constitution, which
provides that 'the President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of
the Congress.' It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission
on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other
than that its provisional period has expired. Said appointment is
of course distinguishable from an 'acting' appointment which is
merely temporary, good until another permanent appointment is
issued."

Not only is the appointment in question an ad-interim


appointment, but the same is also a confirmed ad interim
appointment. In its Resolution No. 485, dated June 20,
1973, the Pamantasan Board of Regents verified
respondent Esteban's appointment without condition nor
limitation as to tenure. As
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Appellate Court

of that moment, it became a regular and permanent


appointment.
In other words, if the Board of Regents is in session, the
Pamantasan President merely nominates while the Board
issues the appointment. But when the Board is not in
session, the President is authorized to issue ad interim
appointments. Such appointments are permanent but their
terms are only until the Board disapproves them. If
confirmed, the appointee's term is converted into the
regular term inherent in the position.
Petitioner centers its arguments and tries to fix the
attention of the court to the fact that all notices of
appointments, renewals, and confirmation thereof all
declare the same to be temporary, carrying fixed
commencement and termination dates, "unless sooner
terminated." As expressed by public respondent, "xxx. This
stubborn insistence is anchored on the notifications of
temporary appointment sent to private respondent Esteban
by the Secretary of Pamantasan. However, this insistence
deliberately ignores x x x Resolution No. 485 dated June
20, 1973 of the Board of Regents x x x". And correctly so
argued. "In case of conflict between a notification issued by
the Secretary of the University which is supposed to reflect
the true content of a Board Resolution and the Resolution
itself of said Board of Regents of said University, the latter
is controlling for obvious reasons. The Secretary of the
University has no authority to alter or add something
which is not provided for in the Resolution of the Board of
Regents x x x". Thus, respondent Intermediate Appellate
Court held:

"The permanent nature of appellant's appointment was not


altered or diminished by the misleading 'notifications' which were
sent to him by the secretary of the university president, referring
to his appointment as 'temporary', nor by his uninformed
acceptance thereof without knowledge of the true contents of
Resolution No. 485 which the university president appears to
have studiously suppressed."

There is nothing in the Pamantasan Board of Regents'


Resolution No. 485 which suggests that respondent
Esteban's ap-
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pointment was temporary. The Board's action was to


confirm or reject an existing ad interim appointment. If
respondent's appointment was intended to be temporary, it
should have been expressly stated. It cannot be made to
rest on inconclusive evidence, specially because a
temporary appointment divests the temporary appointee of
the constitutional security of tenure against removal
without cause even if he is a civil service eligible."
(Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v.
Bartolome, 100 SCRA 1).
Further supporting private respondent's stand is the list
of permanent personnel which was submitted to the
Commission by the university president herself on March
3, 1975 for recognition of their permanent status by the
Commission. The appellant's name was the first in that list
(Exhibit 8-B). The permanent status of private
respondent's appointment as Vice-President for
Administration at Pamantasan was recognized by the Civil
Service Commission in its 1st Indorsement dated April 18,
1975 upon the request of petitioner. This fact is borne out
by the records and the evidence and found as such by the
Intermediate Appellate Court, the Civil Service
Commission as well as the Court of First Instance.
From the foregoing, there appears an intention to
deprive private respondent of his rights as a permanent
appointee. With strained relations and differences in
professional opinion between the private respondent and
the Pamantasan President, Dr. Esteban was led to believe
that his services were terminable at pleasure.
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative
of the appointing power that may be availed of without
liability, provided however, that it is exercised in good faith
for the advancement of the employer's interest and not for
the purpose of defeating or circumventing the rights of the
employees under special laws or under valid agreements,
and provided further, that such prerogatives are not
exercised in a malicious, harsh, op-

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pressive, vindictive or wanton manner, or out of malice or


spite (Government Service and Insurance System v.
Ayroso, 96 SCRA 213). The general rule is that the power
of appointment must remain unhampered by judicial
intervention. However, when the law is violated or when
there is grave abuse of discretion we have to step in.
Otherwise the situation aptly described by newspaperman
Jesus Bigornia would exist as he had written:

"x x x With the sword of Damocles hanging over the heads of


faculty members, the university has spawned a meek, spineless,
even subservient corps of professors and instructors." (Newsman's
Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private


respondent's services by petitioner. With his appointment
now settled as permanent, the Civil Service Law and the
Constitution guarantee private respondent's security of
tenure as "No officer or employee in the Civil Service shall
be suspended or dismissed except for cause as provided by
law" (Section 3, Article XII, the 1973 Philippine
Constitution). Petitioner has failed to substantiate its
allegations of incompetence against respondent Esteban
whose record of government service appears quite
impressive. Esteban was not dismissed for cause after
proper proceedings. His appointment was terminated on
the ground that it was temporary.
The Intermediate Appellate Court ordered the payment
of full back salaries to Dr. Esteban provided he has not
reached the age of compulsory retirement from the
government service.
It is not clear from the records as to when Dr. Esteban
actually ceased working for Pamantasan. Under the law,
he is entitled to full pay, allowances, and other benefits
during the period that he was actually reporting for work
and rendering services in whatever capacity, whether
teaching, research or administration. As to backwages, the
amount is generally based on the equivalent of three years'
earnings (Philippine Airlines, Inc. v. National Labor
Relations Commission, 126

37

VOL. 140, NOVEMBER 13, 1985 37


Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court

SCRA 223; Insular Life Assurance Co., Ltd. v. National


Labor Relations Commission, 135 SCRA 697). In line with
the policy adopted by this Court to do away with the
attendant delay in awarding backwages because of the
extended hearings necessary to prove the earnings,
elsewhere of each and every employee (Philippine Airlines,
Inc. v. National Labor Relations Commission, supra, citing
Mercury Drug Co., Inc. v. Court of Industrial Relations, 56
SCRA 694), the formula for computing the same calls for
fixing the award of backwages to three years. However, in
Dy Keh Beng v. International Labor and Marine Union, 90
SCRA 162, citing Mercury Drug Co., et al. v. Court of
Industrial Relations, 56 SCRA 694, 712), we held the
amount of backwages to be "subject to deduction where
there are mitigating circumstances in favor of the
employer, but subject to increase where there are
aggravating circumstances. (Tupas Local Chapter No. 979,
et al. v. National Labor Relations Commission, et al., G. R.
Nos, 60532-33, November 5, 1985; Progressive
Development Corporation v. Progressive Employees' Union,
80 SCRA 434.) Considering that in the case at bar, more
than ten (10) years have elapsed from the date respondent
Esteban was unfairly and illegally dismissed and petitioner
Pamantasan is guilty of bad faith in misleading Dr.
Esteban as to the true nature of his appointment and
"studiously suppressing" material data to effectively
deprive the latter of his rights as a permanent employee,
we find an award of five (5) years backpay to respondent
Dr. Esteban just and equitable under the circumstances,
assuming he has not reached retirement age in the
meantime.
WHEREFORE, the petition for review on certiorari is
hereby DISMISSED for lack of merit. The decision
appealed from is affirmed subject to the modification in the
payment of back salaries as stated above.
SO ORDERED.

          Teehankee (Chairman), Melencio-Herrera, Plana


and Patajo, JJ., concur.
     Relova, J., on leave.
38

38 SUPREME COURT REPORTS ANNOTATED


Bartolay vs. Belarmino
     De la Fuente, J., I vote for the affirmance in toto of
the decision of IAC. I believe that under the circumstances
there should be no reduction of the back salaries, etc.

Petition dismissed. Decision affirmed with modification.

Notes.—A provisional appointment is good only until


replacement by a civil service eligible and in no case
beyond thirty days from the date of receipt by the
appointing office of the certificates of eligibles. (Ferrer vs.
Hechanova, 19 SCRA 105.)
Since permanent appointment implies civil service
eligibility, employees who were designated as permanent
employees, although they had no civil service eligibility,
cannot be legally considered permanent appointees. The
same rule applies to an employee whose civil service
eligibility is not appropriate for the position occupied by
him. (Ferrer vs. Hechanova, 19 SCRA 105.)

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