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Rotational Scheme of Appointments (1999 Bar Q) (Section 1(2) of Article IX-B, C and D.

he first appointees shall serve 7, 5 and 3 years respectively.

Reason for Staggering of Terms:

1. To lessen the opportunity of the President to appoint a majority of the body during his term;

2. To ensure continuance of the body, which always retains 2/3 of its membership.

3. The system is expected to stabilize the policies of the body as maintained by the remaining
members.

Gaminde v. COA, December 13, 2000. It was held that in order to preserve the periodic
succession mandated by the Constitution, the rotational plan requires two conditions:

1. The terms of the first commissioners should start on a common date (Feb 2, 1987); and

2. Any vacancy due to death, resignation or disability before the expiration of the term should
only be filled for the unexpired balance of the term.

G.R. No. L-8684 March 31, 1955

REPUBLIC OF THE PHILIPPINES, petitioner,


vs.
HONORABLE DOMINGO IMPERIAL and HONORABLE RODRIGO D. PEREZ, respondents.

Office of the Solicitor General Ambrosio Padilla and First Assistant Solicitor General Guillermo
Torres for petitioner.
Chairman Domingo Imperial and Commissioner Rodrigo D. Perez of the Commission on Elections in
their own behalf.
Quintin Paredes as amicus curiae.

REYES, J.B.L., J.:

This is a quo warranto proceeding instituted by the Solicitor General against Honorable Domingo
Imperial and Honorable Rodrigo Perez, to test the legality of their continuance in office as Chairman
and Member, respectively, of the Commission on Elections.

According to the Solicitor General, the first commissioners of Elections were duly appointed and
qualified on July 12, 1945, with the following terms of office:

Hon. Jose Lopez Vito, Chairman, for 9 years, expiring on July 12, 1954.
Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951.
Hon. Vicente Vera, Member, for 3 years, expiring on July 12, 1948;
that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente de Vera was
promoted Chairman by appointment dated May 26, 1947; that in accordance with the ruling of this
Court in Nacionalista Party vs. Vera, 47 Off. Gaz., 2375, and Nacionalista Party vs. Felix Angelo
Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De Vera would have expired on July 12,
1954, that is, the date when the term of office of the first Chairman, Honorable Jose Lopez Vito,
would have expired; that Chairman Vicente de Vera died in August, 1951, before the expiration of
the maximum term of nine years (on July 12, 1954) of the first Chairman of the Commission; that on
August 11, 1951, the respondent Honorable Domingo Imperial was appointed Chairman to succeed
Honorable Vicente de Vera; that while the appointment of the respondent Honorable Imperial
provided that he was to serve "for a term expiring July 12, 1960", the term for which he could legally
serve as Chairman legally expired on July 12, 1954, that is, the expiration of the nine-year term for
which the first Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent Honorable
Rodrigo Perez was appointed Member of the Commission on December 8, 1949, for "a term of nine
years expiring on November 24, 1958", vice Honorable Francisco Enage, who was retired on
November, 1949; that the term of office of respondent Perez legally expired on July 12, 1951, the
expiration of the term of six years for which Commissioner Enage, his predecessor, was appointed.
Wherefore, the Solicitor General concludes that the respondents Commissioners Imperial and Perez
have ceased to have any legal or valid title to the positions of Chairman and Member, respectively, of
the Commission on Elections, and that therefore, their positions should be declared vacant.

The respondents filed separate answer to the petition for quo warranto, both of which pray for the
dismissal of the petition.

The defense of respondent Honorable Domingo Imperial is substantially that Honorable Jose Lopez
Vito was first appointed Chairman of the Commission on Elections on May 12, 1941, for a term of
nine years expiring on May 12, 1950; that when Commissioner Lopez Vito was again appointed
Chairman on July 12, 1945, his nine-year, term of office under this second appointment should not
be reckoned from the date thereof, that is, July 12, 1945, but from the date of his first appointment in
1941, so that the term under his second appointment expired on May 12, 1950; that respondent
Imperial having been appointed after the expiration of Chairman Lopez Vito's full term of nine years
in 1950, he (respondent Imperial) should serve office for a full term of nine years, ending only on
August 10, 1960. Respondent Imperial stresses the unconstitutionality of Chairman Lopez Vito's
second appointment to serve up to July 12, 1954, upon the ground that under the Constitution, he
(Chairman Lopez Vito) could neither be appointed for more than nine years nor be allowed to
succeed himself.

The other respondent, Honorable Rodrigo Perez, alleges that since Chairman Lopez Vito was the
first to be appointed under the Constitution on May 13, 1941, the terms of office of all the
Commissioners on Election should be reckoned from that date, May 13, 1941, to maintain the three-
year difference between the dates of expiration of their respective terms as provided for by the
Constitution; that the term of office of Member Francisco Enage (his predecessor) should therefore
be considered as having started on May 13, 1941, and since Enage was appointed only for six
years, his term of office expired on May 12, 1947; and that since respondent Perez was appointed
(on December 8, 1949) after Commissioner Enage's six-year term of office had already expired, he
should serve for a full term of nine years from the expiration of Enage's term of office on May 12,
1947; hence, his own term of office would expire only on May 12, 1956. Respondent Perez argues
that if the computation of the Solicitor General were to be followed, that is, that Commissioner
Enage's term be counted from July 12, 1945 ending on July 12, 1951, this term would end at a date
very close to the expiration of Commissioner Lopez Vito's term on May 12, 1950, so there would be
only a difference of fourteen months between the expiration of the terms of office of Commissioners
Lopez Vito and Enage, a situation which is contrary to and violative of the Constitution that
prescribes a difference of three years between the dates of the expiration of the terms of the
Members of the Commission.
The issues now posed demand a re-examination and application of the Constitutional amendment
establishing an independent Commission on Elections (Article X) that became operative on
December 2, 1940, superseding the purely statutory Commission previously created and organized
along the same lines by Commonwealth Act No. 607. While this Court already had occasion to make
pronouncements on the matter in previous decisions, the same are not considered decisive in view
of the divergence of opinions among the members of the Court at the time said decisions were
rendered.

Section 1, paragraph 1, of Article X of the Constitution reads as follows:

SEC. 1. There shall be an independent Commission on Elections composed of a Chairman


and two other Members to be appointed by the President with the consent of the
Commission on Appointments, who shall hold office for a term of nine years and may not be
reappointed. Of the Members of the Commission first appointed, one shall hold office for nine
years, another for six years, and the third for three years. The Chairman and the other
Members of the Commission on Elections may be removed from office only by impeachment
in the manner provided in this Constitution.

The provision that of the first three commissioners appointed, "one shall hold office for 9 years,
another for 6 years, and the third for 3 years," when taken together with the prescribed term of office
for 9 years, without reappointment, evidences a deliberate plan to have a regular rotation or cycle in
the membership of the commission, by having subsequent members appointable only once every
three years. This had already been indicated in previous opinions of this Court (Nacionalista
Party vs. Angelo Bautista,1 47 Off. Gaz., 2356; Nacionalista Party vs. Vera,2 47 Off. Gaz., 2375),
where it was declared that "with these periods it was the intention to have one position vacant every
three years, so that no President can appoint more than one Commissioner, thereby preserving and
safe-guarding the independence and impartiality of the Commission" as a body, we may add, for the
impartiality and independence of each individual Commissioner's tenure was safeguarded by other
provisions in the same Article X of the fundamental charter (removability by impeachment alone, and
stability of compensation in sec. 1; disability to practice any profession and prohibition of conflicting
interest in sec. 3)

That the rotation of the Commissioner's appointments at regular and fixed intervals of three years
was a deliberate plan is shown by the history of the provision, and by selection of the fixed term of
nine years for all subsequent appointees, since no other term would give such a result. Initiated
under Commonwealth Act No. 607, the rotation plan was transferred without variation to the
Constitution, evidently for the purpose of preserving it from hasty and irreflexive changes.

Now, the operation of the rotational plan requires two conditions, both indispensable to its
workability: (1) that the terms of the first three commissioners should start on a common date; and
(2) that any vacancy due to death, resignation or disability before the expiration of the term should
only be filled only for the unexpired balance of the term. Without satisfying these conditions, the
regularity of the intervals between appointments would be destroyed, and the evident purpose of the
rotation (to prevent that a four-year administration should appoint more than one permanent and
regular commissioner) would be frustrated.

While the general rule is that a public officer's death or other permanent disability creates a
vacancy in the office, so that the successor is entitled to hold for a full term, such rule is recognized
to suffer exception in those cases where the clear intention is to have vacancies appointments at
regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18, it is stated:
. . . In like manner, it has been ruled that the resignation or the removal of an officer during
his term and the election or appointment of a successor do not divide the term or create a
new and distinct one, and that in such a case the successor is filling out his predecessor's
term. It seems the term of office of one elected or appointed to fill a vacancy in a board of
several officers will be held to be for the unexpired term of his predecessor only, where
the clear intent of the creating power is that the entire board should not go out of office at
once, but that different groups should retire at regularly recurring intervals.(Emphasis
supplied).

In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110, 22 LRA 643, the Court, discussing
provisions in the charter of the city of Bridgeport requiring two city Commissioners to serve for 2
years, and another two to serve for 4 years, said:

. . . The evident intent of section 50 is to secure to the city at all times, so far as possible, the
services of commissioners, half of whom have had the benefit of at least a year's experience
in office, and to divide the membership of each half equally between the leading political
parties. Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in Bridgeport since
1868. The charter of that year provided for the election of two commissioners to serve for
one year, and two for two years, and for the annual election thereafter of two to serve for two
years, and secured a nonpartisan character to the board by allowing no one to vote for more
than two out of the four, and requiring the election of deputy commissioners to replace each
elected commissioner in case of a vacancy. From that time until the resignation of the entire
board, in December, 1890, its membership had been annually renewed by the appointment
of two commissioners for a term of two years, each belonging to a different political party
from the other. Were the contention of the defendant well founded, the successors of the four
commissioners who resigned in December, 1890, should have been, and in law were,
appointed each for two-year term, thus totally and forever frustrating the care-fully devised
scheme of alternating succession which had been followed for twenty years. (Cas. Cit., 22
LRA, 669)

The following cases also support the rule:

When the Constitution fixes the duration of a term of office, and at the same time provides for
its being filled at a fixed time occurring periodically, it necessarily follows that, a casual
vacancy occurring during such term of office, necessity must arise for filling it for the
unexpired term; and although the mode of filling such vacancy is prescribed by the
Constitutional, yet the incumbent only holds until the time arrives for filling the office in the
regular mode and at the regular time prescribed by the Constitution. (Simpson vs. Willard, 14
S. C. 191).

And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of office of one appointed to fill a
vacancy in one of three memberships of a board will, in the absence of any express
provision therefore, be deemed to be for the unexpired term, where the statute fixes the first
term at unequal lengths, so as to prevent an entire change of membership at any one time.
In speaking of the reasoning to the contrary, the court said: "It would make the term of office
to depend upon the pleasure or caprice of the incumbent, and not upon the will of the
legislature as expressed in plain and undoubted language in the law. This construction would
defeat the true intent and meaning of the legislature, 50 LRA. (N. S.), which was to prevent
an entire change of the board of directors of the prison.

Other cases to the same effect are collated in the editorial note in State Ex. Rel. Fish vs. Howell, 50
L. R. A. (N. S.), 345.
The fact that the orderly rotation and renovation of Commissioners would be wrecked unless, in case
of early vacancy, a successor should only be allowed to serve for the unexpired portion of each
regular term, sufficiently explains why no express provision to that effect is made in Article X of the
Constitution. The rule is so evidently fundamental and indispensable to the working of the plan that it
became unnecessary to state it in so many words. The mere fact that such appointments would
make the appointees serve for less than 9 years does not argue against reading such limitation into
the constitution, because the nine-year term cannot be lifted out of context and independently of the
provision limiting the terms of the terms of the first commissioners to nine, six and three years; and
because in any event, the unexpired portion is still part and parcel of the preceding term, so that in
filling the vacancy, only the tenure of the successor is shortened, but not the term of office.

It may be that the appointing power has sufficient inducements at hand to create vacancies in the
Commission, and find occasion for appointments thereto, whenever it chooses to do so. That
possibility, however, would not in any way justify this Court in setting at naught the clear intention of
the Constitution to have members of Commission appointed at regular 3-year intervals.

It is argued that under the rule, one may be appointed for a much shorter term than nine years, say
one year or even less, and his independence would be thereby reduced. The point is, however, that
the majority of the Commission would not be affected (save in really exceptional cases) and
independence of the majority is the independence of the whole Commission.

For the same reasons it must be admitted that the terms of the first three Commissioners should be
held to have started at the same moment, irrespective of the variations in their dates of appointment
and qualification, in order that the expiration of the first terms of nine, six and three years should lead
to the regular recurrence of the three-year intervals between the expiration of the terms. Otherwise,
the fulfillment and success of the carefully devised constitutional scheme would be made to depend
upon the willingness of the appointing power to conform thereto.

It would be really immaterial whether the terms of the first Commissioners appointed under the
Constitutional provision should be held to start from the approval of the constitutional amendment
(December 2, 1940), the reorganization of the Commission under C. A. 657, on June 21, 1941, or
from the appointment of the first Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point
to be emphasized is that the terms of all three Commissioners appointed under the Constitution
began at the same instant and that, in case of a belated appointment (like that of Commissioner
Enage), the interval between the start of the term and the actual qualification of the appointee must
be counted against the latter. No other rule could satisfy the constitutional plan.

Of the three starting dates given above, we incline to prefer that of the organization of the
constitutional Commission on Elections under Commonwealth Act 657, on June 21, 1941, since said
act implemented and completed the organization of the Commission that under the Constitution
"shall be" established. Certainly the terms cannot begin from the first appointments, because
appointment to a Constitution office is not only a right, but equally a duty that should not be shirked
or delayed. On the basic tenets of our democratic institutions, it can hardly be conceded that the
appointing power should possess discretion to retard compliance with its constitutional duty to
appoint when delay would impede or frustrate the plain intent of the fundamental law. Ordinarily, the
operation of the Constitution can not be made to depend upon the Legislature or the Executive, but
in the present case the generality of the organization lines under Article X seems to envisage
prospective implementation.

Applying the foregoing ruling to the case at bar, we find that the terms of office of the first appointees
under the constitution should be computed as follows:
Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June 20, 1950.
Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20, 1947.
The first 3 year term, from June 21, 1941 to June 20, 1944, was not filled.

Thereafter, since the first three-year term had already expired, the appointment (made on July 12,
1945) of the Honorable Vicente de Vera must be deemed for the full term of nine years, from June
21, 1944, to June 20, 1953.

The first vacancy occurred by expiration of the initial 6-year term of Commissioner Enage on June
21, 1937 (although he served as de facto Commissioner until 1949). His successor, respondent
Rodrigo Perez, was named for a full nine-year term. However, on the principles heretofore laid, the
nine-year term of Commissioner Perez (vice Enage) should be held to have started in June 21,
1947, to expire on June 20, 1956.

The second vacancy happened upon the death of Chairman Jose Lopez Vito, who died on May 7,
1947, more than two years before the expiration of his full term. To succeed him as Chairman,
Commissioner Vicente de Vera was appointed. Such appointment, if at all valid, could legally be only
for the unexpired period of the Lopez Vito's term, up to June 20, 1950.

To fill the vacancy created by Vera's assumption of the Chairmanship, Commissioner Leopoldo
Rovira was appointed on May 22, 1947. Pursuant to the principles laid down, Rovira could only fill
out the balance of Vera's term, until June 20, 1953, and could not be reappointed thereafter.

Commissioner Vera's tenure as Chairman (vice Lopez Vito) expired, as we have stated, on June 20,
1950, the end of Lopez Vito's original term. A vacancy, therefore, occurred on that date that Vera
could no longer fill, since his reappointment was expressly prohibited by the Constitution. The next
Chairman was respondent Commissioner Domingo Imperial, whose term of nine years must be
deemed to have begun on June 21, 1950, to expire on June 20, 1959.

The vacancy created by the legal expiration of Rovira's term on June 20, 1953 appears unfilled up to
the present. The time elapsed, as we have held, must be counted against his successor, whose
legal term is for nine years, from June 21, 1953 to June 20, 1962.

The fact must be admitted that appointments have heretofore been made with little regard for the
Constitutional plan. However, if the principles set in this decision are observed, no difficulty need be
anticipated for the future.

And it appearing, from the foregoing, that the legal terms of office of the respondents Perez and
Imperial have not as yet expired, whether the original terms started from the operation of the
Constitutional amendments or the enactment of C. A. 657, the petition for quo warranto is hereby
dismissed without costs.

Pablo, Bengzon, Montemayor, Jugo, Labrador and Concepcion, JJ., concur.

GAMINDE vs. COA

G.R. No. 140335, December 13, 2000


Facts: Thelma Gaminde was appointed by the President of the Philippines as
Commissioner of the Civil Service Commission, ad interim and assumed office
on June 22, 1993 after oath of office. The Commission on Appointments (COA)
and the Congress of the Philippines confirmed the appointment on September 7,
1993. Gaminde, on February 24, 1998, sought the Office of the President for
clarification on the expiry date of her term of office. In response to her request,
the Chief Presidential Legal Counsel opined that her term office will expire on
February 2, 2000 instead of February 2, 1999. Relying on said advisory opinion,
Gaminde remained in office after February 2, 1999. However, on February 4,
1999, Chairman Corazon Alma de Leon wrote COA requesting opinion whether
or not Gaminde and her co-terminus staff may be paid their salaries
notwithstanding the expiration of their appointments on February 2, 1999. The
General Counsel of COA issued an opinion on February 18, 1999 that “the term
of Commissioner Gaminde has expired on February 2, 1999 as stated in her
appointment conformably with the constitutional intent.” Consequently, on
March 24, 1999, CSC Resident Auditor Flovitas Felipe issued a Notice of
Disallowance, disallowing in audit the salaries and emoluments of Gaminde and
her co-terminus staff effective February 2, 1999. Gaminde appealed COA’s
disallowance but it was dismissed, and affirmed the propriety of the
disallowance; and held that the issue of Gaminde’s office term may be properly
addressed by mere reference to her appointment paper which set the expiration
date of February 2, 1999, and that the Commission was bereft of power to
recognize an extension of her term, not even with the implied acquiescence of
the Office of the President. Gaminde moved for reconsideration, but was denied
by COA.

Issue: Whether the term of office of Thelma Gaminde, as Commissioner, Civil


Service Commission, to which she was appointed on June 11, 1993, expired on
February 2, 1999, as stated in the appointment paper, or on February 2, 2000, as
claimed by her.

Held: The term of office of Thelma P. Gaminde as the CSC Commissioner, as


appointed by President Fidel V. Ramos, expired on February 2, 1999. However,
she served as de-facto officer in good faith until February 2, 2000. The term of
office of the Chairman and members of the Civil Service Commission is
prescribed in the 1987 Constitution under Article IX-D, Section 1 (2):

“The Chairman and the Commissioners shall be appointed by the President


withthe consent of the Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the Chairman shall hold office
for seven years, a Commissioner for five years, and another Commissioner for
three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.”

Therefore, COA erred in disallowing in audit such salary and other emoluments.
Gaminde and her co-terminus staff are entitled to receive their salary and other
emoluments for actual service rendered.
EN BANC

[G. R. No. 140335. December 13, 2000]

THELMA P. GAMINDE, petitioner, vs. COMMISSION ON AUDIT and/or


Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and
EMMANUEL M. DALMAN, respondents.

DECISION
PARDO, J.:

The Case

The case is a special civil action of certiorari seeking to annul and set aside two
decisions of the Commission on Audit ruling that petitioners term of office as
Commissioner, Civil Service Commission, to which she was appointed on June 11,
1993, expired on February 02, 1999, as set forth in her appointment paper.

The Facts
On June 11, 1993, the President of the Philippines appointed petitioner Thelma P.
Gaminde, ad interim, Commissioner, Civil Service Commission. She assumed office on
June 22, 1993, after taking an oath of office. On September 07, 1993, the Commission
on Appointment, Congress of the Philippines confirmed the appointment. We
quote verbatim her appointment paper:

11 June 1993

Madam:

Pursuant to the provisions of existing laws, you are hereby appointed,


ad interim, COMMISSIONER, CIVIL SERVICE COMMISSION, for a term
expiring February 2, 1999.

By virtue hereof, you may qualify and enter upon the performance of
the duties of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office. [1]

However, on February 24, 1998, petitioner sought clarification from the Office of the
President as to the expiry date of her term of office. In reply to her request, the Chief
Presidential Legal Counsel, in a letter dated April 07, 1998 opined that petitioners term
[2]

of office would expire on February 02, 2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner remained in office after February 02,
1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote the
Commission on Audit requesting opinion on whether or not Commissioner Thelma P.
Gaminde and her co-terminous staff may be paid their salaries notwithstanding the
expiration of their appointments on February 02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued an
opinion that the term of Commissioner Gaminde has expired on February 02, 1999 as
stated in her appointment conformably with the constitutional intent.[3]

Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued
notice of disallowance No. 99-002-101 (99), disallowing in audit the salaries and
emoluments pertaining to petitioner and her co-terminous staff, effective February 02,
1999.[4]

On April 5, 1999, petitioner appealed the disallowance to the Commission on


Audit en banc. On June 15, 1999, the Commission on Audit issued Decision No. 99-090
dismissing petitioners appeal. The Commission on Audit affirmed the propriety of the
disallowance, holding that the issue of petitioners term of office may be properly
addressed by mere reference to her appointment paper which set the expiration date on
February 02, 1999, and that the Commission is bereft of power to recognize an
extension of her term, not even with the implied acquiescence of the Office of the
President. [5]
In time, petitioner moved for reconsideration; however, on August 17, 1999, the
Commission on Audit denied the motion in Decision No. 99-129. [6]

Hence, this petition. [7]

The Issue

The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as
Commissioner, Civil Service Commission, to which she was appointed on June 11,
1993, expired on February 02, 1999, as stated in the appointment paper, or on February
02, 2000, as claimed by her.

The Courts Ruling

The term of office of the Chairman and members of the Civil Service Commission is
prescribed in the 1987 Constitution, as follows:

Section 1 (2). The Chairman and the Commissioners shall be appointed by


the President with the consent of the Commission on Appointments for a term
of seven years without reappointment. Of those first appointed, the Chairman
shall hold office for seven years, a Commissioner for five years, and another
Commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity. [8]

The 1973 Constitution introduced the first system of a regular rotation or cycle in the
membership of the Civil Service Commission. The provision on the 1973 Constitution
reads:

x x x The Chairman and the Commissioners shall be appointed by the Prime


Minister for a term of seven years without reappointment. Of the
Commissioners first appointed, one shall hold office for seven years, another
for five years, and the third for three years. Appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor. [9]

Actually, this was a copy of the Constitutional prescription in the amended 1935
Constitution of a rotational system for the appointment of the Chairman and members of
the Commission on Elections. The Constitutional amendment creating an independent
Commission on Elections provides as follows:
Section 1. There shall be an independent Commission on Elections composed
of a Chairman and two other Members to be appointed by the President with
the consent of the Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six
years, and the third for three years. The Chairman and the other Members of
the Commission on Elections may be removed from office only by
impeachment in the manner provided in this Constitution." [10]

In Republic vs. Imperial, we said that the operation of the rotational plan requires
[11]

two conditions, both indispensable to its workability: (1) that the terms of the first three
(3) Commissioners should start on a common date, and, (2) that any vacancy due to
death, resignation or disability before the expiration of the term should only be filled
only for the unexpired balance of the term. [12]

Consequently, the terms of the first Chairmen and Commissioners of the


Constitutional Commissions under the 1987 Constitution must start on a common date,
irrespective of the variations in the dates of appointments and qualifications of the
appointees, in order that the expiration of the first terms of seven, five and three years
should lead to the regular recurrence of the two-year interval between the expiration of
the terms.[13]

Applying the foregoing conditions to the case at bar, we rule that the appropriate
starting point of the terms of office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on February 02, 1987, the date of
the adoption of the 1987 Constitution. In case of a belated appointment or qualification,
the interval between the start of the term and the actual qualification of the appointee
must be counted against the latter. [14]

In the law of public officers, there is a settled distinction between term and tenure.
[T]he term of an office must be distinguished from the tenure of the incumbent. The term
means the time during which the officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds the office. The term of
office is not affected by the hold-over. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent. [15]

In concluding that February 02, 1987 is the proper starting point of the terms of
office of the first appointees to the Constitutional Commissions of a staggered 7-5-3
year terms, we considered the plain language of Article IX (B), Section 1 (2), Article IX
(C), Section 1 (2) and Article IX (D), Section 1 (2) of the 1987 Constitution that uniformly
prescribed a seven-year term of office for Members of the Constitutional Commissions,
without re-appointment, and for the first appointees terms of seven, five and three
years, without re-appointment. In no case shall any Member be appointed or designated
in a temporary or acting capacity. There is no need to expressly state the beginning of
the term of office as this is understood to coincide with the effectivity of the Constitution
upon its ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides:

SEC. 15. The incumbent Members of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit shall continue in
office for one year after the ratification of this Constitution, unless they are
sooner removed for cause or become incapacitated to discharge the duties of
their office or appointed to a new term thereunder. In no case shall any
Member serve longer than seven years including service before the ratification
of this Constitution. [16]

What the above quoted Transitory Provisions contemplate is tenure not term of the
incumbent Chairmen and Members of the Civil Service Commission, the Commission
on Elections and the Commission on Audit, who shall continue in office for one year
after the ratification of this Constitution, unless they are sooner removed for cause or
become incapacitated to discharge the duties of their office or appointed to a new term
thereunder. The term unless imports an exception to the general rule. Clearly, the
[17]

transitory provisions mean that the incumbent members of the Constitutional


Commissions shall continue in office for one year after the ratification of this
Constitution under their existing appointments at the discretion of the appointing power,
who may cut short their tenure by: (1) their removal from office for cause; (2) their
becoming incapacitated to discharge the duties of their office, or (3) their appointment to
a new term thereunder, all of which events may occur before the end of the one year
period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in Article IX,
providing for a seven-five-three year rotational interval for the first appointees under this
Constitution.
At the time of the adoption of the 1987 Constitution, the incumbent Chairman and
members of the Civil Service Commission were the following: (1) Chairperson Celerina
G. Gotladera. She was initially appointed as OIC Chairman on March 19, 1986, and
appointed chairman on December 24, 1986, which she assumed on March 13, 1987. (2)
Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquino appointed him
Commissioner, without any term. He assumed office on July 9, 1986, and served until
March 31, 1987, when he filed a certificate of candidacy for the position of
Congressman, 2 District, Leyte, thereby vacating his position as Commissioner. His
nd

tenure was automatically cut-off by the filing of his certificate of candidacy. (3) Atty.
Mario D. Yango. On January 22, 1985, President Ferdinand E. Marcos appointed him
Commissioner for a term expiring January 25, 1990. He served until February 2, 1988,
when his term ended in virtue of the transitory provisions referred to. On May 30, 1988,
President Aquino re-appointed him to a new three-year term and served until May 31,
1991, exceeding his lawful term, but not exceeding the maximum of seven years,
including service before the ratification of the 1987 Constitution. Under this factual
milieu, it was only Commissioner Yango who was extended a new term under the 1987
Constitution. The period consumed between the start of the term on February 02, 1987,
and his actual assumption on May 30, 1988, due to his belated appointment, must be
counted against him.
Given the foregoing common starting point, we compute the terms of the first
appointees and their successors to the Civil Service Commission under the 1987
Constitution by their respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987 to February 01, 1994. On
January 30, 1988, the President nominated Ms. Patricia A. Sto. Tomas Chairman, Civil
Service Commission. On March 02, 1988, the Commission on Appointments confirmed
the nomination. She assumed office on March 04, 1988. Her term ended on February
02, 1994. She served as de facto Chairman until March 04, 1995. On March 05, 1995,
the President appointed then Social Welfare Secretary Corazon Alma G. de Leon,
Chairman, Civil Service Commission, to a regular seven-year term. This term must be
deemed to start on February 02, 1994, immediately succeeding her predecessor, whose
term started on the common date of the terms of office of the first appointees under the
1987 Constitution. She assumed office on March 22, 1995, for a term expiring February
02, 2001.
This is shown in her appointment paper, quoted verbatim as follows:

March 5, 1995

Madam:

Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the


Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL
SERVICE COMMISSION, for a term expiring February 2, 2001.

By virtue hereof, you may qualify and enter upon the performance of
the duties of the office, furnishing this Office and the Civil Service
Commission with copies of your oath of office.

(Sgd.) FIDEL V. RAMOS

Second line : Commissioner Five-year term. February 02, 1987 to February 02,
1992. On January 30, 1988, the President nominated Atty. Samilo N. Barlongay
Commissioner, Civil Service Commission. On February 17, 1988, the Commission on
Appointments, Congress of the Philippines, confirmed the nomination. He assumed
office on March 04, 1988. His term ended on February 02, 1992. He served as de
facto Commissioner until March 04, 1993.
On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner,
Civil Service Commission, for a term expiring February 02, 1999. This terminal date is
[18]

specified in her appointment paper. On September 07, 1993, the Commission on


Appointments confirmed the appointment. She accepted the appointment and assumed
office on June 22, 1993. She is bound by the term of the appointment she accepted,
expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy
Executive Secretary Renato C. Corona clarifying that her term would expire on
[19]

February 02, 2000, was in error. What was submitted to the Commission on
Appointments was a nomination for a term expiring on February 02, 1999. Thus, the
term of her successor must be deemed to start on February 02, 1999, and expire on
[20]

February 02, 2006.


Third line : Commissioner Three-year term. February 02, 1987 to February 02,
1990. Atty. Mario D. Yango was incumbent commissioner at the time of the adoption of
the 1987 Constitution. His extended tenure ended on February 02, 1988. In May, 1988,
President Corazon C. Aquino appointed him Commissioner, Civil Service Commission
to a new three-year term thereunder. He assumed office on May 30, 1988. His term
ended on February 02, 1990, but served as de facto Commissioner until May 31,
1991. On November 26, 1991, the President nominated Atty. Ramon P. Ereeta as
Commissioner, Civil Service Commission. On December 04, 1991, the Commission on
Appointments confirmed the nomination. He assumed office on December 12, 1991, for
a term expiring February 02, 1997. [21]

Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997,


President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Commissioner, Civil
Service Commission, for a term expiring February 02, 2004. He assumed office on
February 11, 1997.
Thus, we see the regular interval of vacancy every two (2) years, namely, February
02, 1994, for the first Chairman, February 02, 1992, for the first five-year term
[22]

Commissioner, and February 02, 1990, for the first three-year term Commissioner.
[23]

Their successors must also maintain the two year interval, namely: February 02,
[24]

2001, for Chairman; February 02, 1999, for Commissioner Thelma P. Gaminde, and
[25]

February 02, 1997, for Commissioner Ramon P. Ereeta, Jr.


The third batch of appointees would then be having terms of office as follows:
First line : Chairman, February 02, 2001 to February 02, 2008;
Second line: Commissioner, February 02, 1999 to February 02, 2006; and, Third line:
[26]

Commissioner, February 02, 1997 to February 02, 2004, thereby consistently


[27]

maintaining the two-year interval.


The line of succession, terms of office and tenure of the Chairman and members of
the Civil Service Commission may be outlined as follows: [28]

Chairman Term Tenure


(7-year original)
Sto. Tomas 1 appointee Feb. 02, 1987 to Mar. 04, 1988 to
st

Feb. 02, 1994 March 08, 1995


De Leon 2 appointee Feb. 02, 1994 to March 22, 1995 to
nd

(incumbent) Feb. 02, 2001 Feb. 02, 2001


_______ - 3 appointee Feb. 02, 2001 to
rd

Feb. 02, 2008


2 Member Term Tenure
nd
(5-year original)
Barlongay 1 appointee Feb. 02, 1987 to March 04, 1988 to
st

Feb. 02, 1992 March 04, 1993


Gaminde 2 appointee Feb. 02, 1992 to June 11, 1993 to
nd

Feb. 02, 1999 Feb. 02, 2000


Valmores 3 appointee Feb. 02, 1999 to Sept. 08, 2000 to
rd

(incumbent) Feb. 02, 2006 Feb. 02, 2006


3 Member Term Tenure
rd

(3-year original)
Yango - 1 appointee Feb. 02, 1987 to May 30, 1988 to
st

Feb. 02, 1990 May 31, 1991


Ereeta 2 appointee Feb. 02, 1990 to Dec. 12, 1991 to
nd

Feb. 02, 1997 Feb. 02, 1997


Erestain, Jr. 3 appointee Feb. 02, 1997 to Feb. 11, 1997 to
rd

(incumbent) Feb. 02, 2004 Feb. 02, 2004

The Fallo

WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as


Commissioner, Civil Service Commission, under an appointment extended to her by
President Fidel V. Ramos on June 11, 1993, expired on February 02, 1999. However,
she served as de facto officer in good faith until February 02, 2000, and thus entitled to
receive her salary and other emoluments for actual service rendered. Consequently, the
Commission on Audit erred in disallowing in audit such salary and other emoluments,
including that of her co-terminous staff.
ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar
as they disallow the salaries and emoluments of Commissioner Thelma P. Gaminde and
her coterminous staff during her tenure as de facto officer from February 02, 1999, until
February 02, 2000.
This decision shall be effective immediately.
No costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Vitug, Kapunan, Panganiban, Quisumbing, Buena,
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Bellosillo J., no part. Related to one of parties.
Puno J., in the result.
Mendoza, J., join De Leons dissent.
De Leon, Jr., J., see concurring & dissenting opinion.

Republic of the Philippines


SUPREME COURT
Baguio City

EN BANC

DENNIS A. B. FUNA, G.R. No. 192791


Petitioner,
Present:

CORONA, C.J.,
- versus - CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
THE CHAIRMAN, COMMISSION PERALTA,
ON AUDIT, REYNALDO A. VILLAR, BERSAMIN,
Respondent. DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:
April 24, 2012

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B.
Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as
Chairman of the Commission on Audit and accordingly prays that a judgment issue
declaring the unconstitutionality of the appointment.

The facts of the case are as follows:

On February 15, 2001, President Gloria Macapagal-Arroyo (President


Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as Chairman of the
Commission on Audit (COA) for a term of seven (7) years, pursuant to the 1987
Constitution.[1] Caragues term of office started on February 2, 2001 to end on
February 2, 2008.

Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed


Reynaldo A. Villar (Villar) as the third member of the COA for a term of seven (7)
years starting February 2, 2004 until February 2, 2011.

Following the retirement of Carague on February 2, 2008 and during the


fourth year of Villar as COA Commissioner, Villar was designated as Acting
Chairman of COA from February 4, 2008 to April 14, 2008. Subsequently, on April
18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, on June 11, 2008, the Commission on Appointments confirmed his
appointment. He was to serve as Chairman of COA, as expressly indicated in the
appointment papers, until the expiration of the original term of his office as COA
Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an
obvious bid to lend color of title to his hold on the chairmanship, insists that his
appointment as COA Chairman accorded him a fresh term of seven (7) years which
is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is
up to February 2, 2015, or 7 years reckoned from February 2, 2008 when he was
appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed


as COA Commissioner to serve the unexpired term of Villar as Commissioner or
up to February 2, 2011.

Before the Court could resolve this petition, Villar, via a letter dated
February 22, 2011 addressed to President Benigno S. Aquino III, signified his
intention to step down from office upon the appointment of his replacement. True
to his word, Villar vacated his position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This development
has rendered this petition and the main issue tendered therein moot and academic.

A case is considered moot and academic when its purpose has become stale,
[2]
or when it ceases to present a justiciable controversy owing to the onset of
supervening events,[3] so that a resolution of the case or a declaration on the issue
would be of no practical value or use. [4] In such instance, there is no actual
substantial relief which a petitioner would be entitled to, and which will anyway be
negated by the dismissal of the basic petition.[5] As a general rule, it is not within
Our charge and function to act upon and decide a moot case. However, in David v.
Macapagal-Arroyo,[6] We acknowledged and accepted certain exceptions to the
issue of mootness, thus:

The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution, second, the exceptional character of the situation and the paramount
public interest is involved, third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public,
and fourth, the case is capable of repetition yet evading review.

Although deemed moot due to the intervening appointment of Chairman Tan


and the resignation of Villar, We consider the instant case as falling within the
requirements for review of a moot and academic case, since it asserts at least four
exceptions to the mootness rule discussed in David, namely: there is a grave
violation of the Constitution; the case involves a situation of exceptional character
and is of paramount public interest; the constitutional issue raised requires the
formulation of controlling principles to guide the bench, the bar and the public; and
the case is capable of repetition yet evading review.[7] The situation presently
obtaining is definitely of such exceptional nature as to necessarily call for the
promulgation of principles that will henceforth guide the bench, the bar and the
public should like circumstance arise. Confusion in similar future situations would
be smoothed out if the contentious issues advanced in the instant case are resolved
straightaway and settled definitely. There are times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be addressed. To borrow
from Javier v. Pacificador,[8] Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the guidance of and as a
restraint in the future.

Both procedural and substantive issues are raised in this proceeding. The
procedural aspect comes down to the question of whether or not the following
requisites for the exercise of judicial review of an executive act obtain in this
petition, viz: (1) there must be an actual case or justiciable controversy before the
court; (2) the question before it must be ripe for adjudication; (3) the person
challenging the act must be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be the very litis mota of the
case.[9]

To Villar, all the requisites have not been met, it being alleged in particular
that petitioner, suing as a taxpayer and citizen, lacks the necessary standing to
challenge his appointment.[10] On the other hand, the Office of the Solicitor General
(OSG), while recognizing the validity of Villars appointment for the period ending
February 11, 2011, has expressed the view that petitioner should have had filed a
petition for declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.
Villars posture on the absence of some of the mandatory requisites for the
exercise by the Court of its power of judicial review must fail. As a general rule, a
petitioner must have the necessary personality or standing (locus standi) before a
court will recognize the issues presented. In Integrated Bar of the Philippines v.
Zamora, We defined locus standi as:

x x x a personal and substantial interest in the case such that the party has
sustained or will sustain a direct injury as a result of the governmental act that is
being challenged. The term interest means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as
to assure the concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.[11]

To have legal standing, therefore, a suitor must show that he has sustained or will
sustain a direct injury as a result of a government action, or have a material interest
in the issue affected by the challenged official act.[12] However, the Court has time
and again acted liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest affected, by a
Government act, standing to sue provided a constitutional issue of critical
significance is at stake.[13] The rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a catena of cases involving a subject
of transcendental import, has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the
public interest, albeit they may not have been personally injured by the operation
of a law or any other government act. [14] In David, the Court laid out the bare
minimum norm before the so-called non-traditional suitors may be extended
standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the
election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of
infringes their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has


far-reaching implications, and there is a need to promulgate rules that will guide
the bench, bar, and the public in future analogous cases. We, thus, assume a liberal
stance and allow petitioner to institute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement


as to the propriety of the availment of certiorari as a medium to inquire on whether
the assailed appointment of respondent Villar as COA Chairman infringed the
constitution or was infected with grave abuse of discretion. For under the expanded
concept of judicial review under the 1987 Constitution, the corrective hand of
certiorari may be invoked not only to settle actual controversies involving rights
which are legally demandable and enforceable, but also to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.
[15]
Grave abuse of discretion denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of


jurisdiction, or, in other words, where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act in contemplation of law.[16]

We find the remedy of certiorari applicable to the instant case in view of the
allegation that then President Macapagal-Arroyo exercised her appointing power in
a manner constituting grave abuse of discretion.

This brings Us to the pivotal substantive issue of whether or not Villars


appointment as COA Chairman, while sitting in that body and after having served
for four (4) years of his seven (7) year term as COA commissioner, is valid in light
of the term limitations imposed under, and the circumscribing concepts tucked in,
Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the
President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, the Chairman shall
hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the
predecessor. In no case shall any member be appointed or designated in a
temporary or acting capacity. (Emphasis added.)[17]

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined
restricting features in the matter of the composition of COA and the appointment of
its members (commissioners and chairman) designed to safeguard the
independence and impartiality of the commission as a body and that of its
individual members.[18] These are, first, the rotational plan or the staggering term in
the commission membership, such that the appointment of commission members
subsequent to the original set appointed after the effectivity of the 1987
Constitution shall occur every two years; second, the maximum but a fixed term-
limit of seven (7) years for all commission members whose appointments came
about by reason of the expiration of term save the aforementioned first set of
appointees and those made to fill up vacancies resulting from certain causes; third,
the prohibition against reappointment of commission members who served the full
term of seven years or of members first appointed under the Constitution who
served their respective terms of office; fourth, the limitation of the term of a
member to the unexpired portion of the term of the predecessor; and fifth, the
proscription against temporary appointment or designation.

To elucidate on the mechanics of and the adverted limitations on the matter


of COA-member appointments with fixed but staggered terms of office, the Court
lays down the following postulates deducible from pertinent constitutional
provisions, as construed by the Court:

1. The terms of office and appointments of the first set of commissioners, or


the seven, five and three-year termers referred to in Sec. 1(2), Art. IX(D) of the
Constitution, had already expired. Hence, their respective terms of office find
relevancy for the most part only in understanding the operation of the rotational
plan. In Gaminde v. Commission on Audit,[19] the Court described how the smooth
functioning of the rotational system contemplated in said and like provisions
covering the two other independent commissions is achieved thru the staggering of
terms:

x x x [T]he terms of the first Chairmen and Commissioners of the


Constitutional Commissions under the 1987 Constitution must start on a common
date [February 02, 1987, when the 1987 Constitution was ratified] irrespective of
the variations in the dates of appointments and qualifications of the appointees in
order that the expiration of the first terms of seven, five and three years should
lead to the regular recurrence of the two-year interval between the expiration
of the terms.

x x x In case of a belated appointment, the interval between the start of


the terms and the actual appointment shall be counted against the appointee.
[20]
(Italization in the original; emphasis added.)

Early on, in Republic v. Imperial,[21] the Court wrote of two conditions, both
indispensable to [the] workability of the rotational plan. These conditions may be
described as follows: (a) that the terms of the first batch of commissioners should
start on a common date; and (b) that any vacancy due to death, resignation or
disability before the expiration of the term should be filled only for the
unexpired balance of the term. Otherwise, Imperial continued, the regularity of
the intervals between appointments would be destroyed. There appears to be near
unanimity as to the purpose/s of the rotational system, as originally conceived, i.e.,
to place in the commission a new appointee at a fixed interval (every two years
presently), thus preventing a four-year administration appointing more than one
permanent and regular commissioner,[22] or to borrow from Commissioner Monsod
of the 1986 CONCOM, to prevent one person (the President of the Philippines)
from dominating the commissions.[23] It has been declared too that the rotational
plan ensures continuity in, and, as indicated earlier, secure the independence of, the
commissions as a body.[24]
2. An appointment to any vacancy in COA, which arose from an expiration
of a term, after the first chairman and commissioners appointed under the 1987
Constitution have bowed out, shall, by express constitutional fiat, be for a term
of seven (7) years, save when the appointment is to fill up a vacancy for the
corresponding unserved term of an outgoing member. In that case, the appointment
shall only be for the unexpired portion of the departing commissioners term of
office. There can only be an unexpired portion when, as a direct result of his
demise, disability, resignation or impeachment, as the case may be, a sitting
member is unable to complete his term of office.[25] To repeat, should the vacancy
arise out of the expiration of the term of the incumbent, then there is technically no
unexpired portion to speak of. The vacancy is for a new and complete seven-year
term and, ergo, the appointment thereto shall in all instances be for a maximum
seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits
the reappointment of a member of COA after his appointment for seven (7) years.
Writing for the Court in Nacionalista Party v. De Vera,[26] a case involving the
promotion of then COMELEC Commissioner De Vera to the position of chairman,
then Chief Justice Manuel Moran called attention to the fact that the prohibition
against reappointment comes as a continuation of the requirement that the
commissionersreferring to members of the COMELEC under the 1935
Constitutionshall hold office for a term of nine (9) years. This sentence formulation
imports, notes Chief Justice Moran, that reappointment is not an absolute
prohibition.
4. The adverted system of regular rotation or the staggering of appointments
and terms in the membership for all three constitutional commissions, namely the
COA, Commission on Elections (COMELEC) and Civil Service Commission
(CSC) found in the 1987 Constitution was patterned after the amended 1935
Constitution for the appointment of the members of COMELEC [27] with this
difference: the 1935 version entailed a regular interval of vacancy every three (3)
years, instead of the present two (2) years and there was no express provision on
appointment to any vacancy being limited to the unexpired portion of the his
predecessors term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections


composed of a Chairman and two other members to be appointed by the President
with the consent of the Commission on Appointments, who shall hold office for a
term of nine years and may not be reappointed. Of the Members of the
Commission first appointed, one shall hold office for nine years, another for six
years and the third for three years. x x x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987
Constitution proscribes reappointment of any kind within the commission, the
point being that a second appointment, be it for the same position (commissioner to
another position of commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is
drawn in this regard to the Courts disposition in Matibag v. Benipayo.[28]

Villars promotional appointment, so it is argued, is void from the start,


constituting as it did a reappointment enjoined by the Constitution, since it actually
needed another appointment to a different office and requiring another
confirmation by the Commission on Appointments.

Central to the adjudication of the instant petition is the correct meaning to be


given to Sec. 1(2), Article IX(D) of the Constitution on the ban against
reappointment in relation to the appointment issued to respondent Villar to the
position of COA Chairman.
Without question, the parties have presented two (2) contrasting and
conflicting positions. Petitioner contends that Villars appointment is proscribed by
the constitutional ban on reappointment under the aforecited constitutional
provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the
same provision.

The Court finds petitioners position bereft of merit. The flaw lies in
regarding the word reappointment as, in context, embracing any and all species of
appointment.

The rule is that if a statute or constitutional provision is clear, plain and free
from ambiguity, it must be given its literal meaning and applied without attempted
interpretation.[29] This is known as the plain meaning rule enunciated by the
maxim verba legis non est recedendum, or from the words of a statute there should
be no departure.[30]
The primary source whence to ascertain constitutional intent or purpose is
the language of the provision itself.[31] If possible, the words in the Constitution
must be given their ordinary meaning, save where technical terms are
employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration illustrates
the verbal legis rule in this wise:

We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is to be
assumed that the words in which constitutional provisions are couched express
the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyers
document, it being essential for the rule of law to obtain that it should ever be
present in the peoples consciousness, its language as much as possible should
be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus there are cases where the need for construction
is reduced to a minimum.[32] (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall be appointed by


the President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, the Chairman shall
hold office for seven years, one commissioner for five years, and the other
commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the
predecessor. x x x (Emphasis added.)

The first sentence is unequivocal enough. The COA Chairman shall be appointed
by the President for a term of seven years, and if he has served the full term, then
he can no longer be reappointed or extended another appointment. In the same
vein, a Commissioner who was appointed for a term of seven years who likewise
served the full term is barred from being reappointed. In short, once the Chairman
or Commissioner shall have served the full term of seven years, then he can no
longer be reappointed to either the position of Chairman or Commissioner. The
obvious intent of the framers is to prevent the president from dominating the
Commission by allowing him to appoint an additional or two more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional
Convention barred reappointment to be extended to commissioner-members first
appointed under the 1987 Constitution to prevent the President from controlling the
commission. Thus, the first Chairman appointed under the 1987 Constitution who
served the full term of seven years can no longer be extended a reappointment.
Neither can the Commissioners first appointed for the terms of five years and three
years be eligible for reappointment. This is the plain meaning attached to the
second sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional
appointment from commissioner to chairman as long as the commissioner has not
served the full term of seven years, further qualified by the third sentence of Sec.
1(2), Article IX (D) that the appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In addition, such promotional
appointment to the position of Chairman must conform to the rotational plan or the
staggering of terms in the commission membership such that the aggregate of the
service of the Commissioner in said position and the term to which he will be
appointed to the position of Chairman must not exceed seven years so as not to
disrupt the rotational system in the commission prescribed by Sec. 1(2), Art.
IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes
a promotional appointment from Commissioner to Chairman, provided it is made
under the aforestated circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D),
as couched, allows a promotional appointment from Commissioner to
Chairman. Even if We concede the existence of an ambiguity, the outcome will
remain the same. J.M. Tuason & Co., Inc.[33] teaches that in case of doubt as to the
import and react of a constitutional provision, resort should be made to extraneous
aids of construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or the purpose
of the provision being construed.
The understanding of the Convention as to what was meant by the terms of the
constitutional provision which was the subject of the deliberation goes a long way
toward explaining the understanding of the people when they ratified it. The Court
applied this principle in Civil Liberties Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the


provision under consideration. Thus, it has been held that the Court in construing
a Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.[34] (Emphasis
added.)

And again in Nitafan v. Commissioner on Internal Revenue:

x x x The ascertainment of that intent is but in keeping with the


fundamental principle of constitutional construction that the intent of the
framers of the organic law and of the people adopting it should be given
effect. The primary task in constitutional construction is to ascertain and
thereafter assure the realization of the purpose of the framers and of the people in
the adoption of the Constitution. It may also be safely assumed that the people
in ratifying the Constitution were guided mainly by the explanation offered
by the framers.[35] (Emphasis added.)

Much weight and due respect must be accorded to the intent of the framers
of the Constitution in interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where
a commissioner is upgraded to the position of chairman, the 1987 Constitution in
fact unequivocally allows promotional appointment, but subject to defined
parameters. The ensuing exchanges during the deliberations of the 1986
Constitutional Commission (CONCOM) on a draft proposal of what would
eventually be Sec. 1(2), Art. IX(D) of the present Constitution amply support the
thesis that a promotional appointment is allowed provided no one may be in the
COA for an aggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x


x. Between x x x the sentence which begins with In no case, insert THE
APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF
MORE THAN SEVEN YEARS. I was thinking that this may approximate the
situation wherein a commissioner is first appointed as chairman. I am willing to
withdraw that amendment if there is a representation on the part of the Committee
that there is an implicit intention to prohibit a term that in the aggregate will
exceed more than seven years. If that is the intention, I am willing to
withdraw my amendment.

MR. MONSOD: If the [Gentlewoman] will read the whole Article, she
will notice that there is no reappointment of any kind and, therefore, as a
whole there is no way somebody can serve for more than seven years. The
purpose of the last sentence is to make sure that this does not happen by including
in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I


was thinking of a situation wherein a commissioner is upgraded to a position
of chairman. But if this provision is intended to cover that kind of situation, then
I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation.


It states: Appointment to any vacancy shall be only for the unexpired portion of
the predecessor. In other words, if there is upgrading of position from
commissioner to chairman, the appointee can serve only the unexpired
portion of the term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it might


shorten the term because he serves only the unexpired portion of the term of
the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have
to serve the unexpired portion of the term of the predecessor. (Emphasis
added.)[36]
The phrase upgrading of position found in the underscored portion
unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitution, for all its
caveat against reappointment, does not per sepreclude, in any and all cases, the
promotional appointment or upgrade of a commissioner to chairman, subject to this
proviso: the appointees tenure in office does not exceed 7 years in all. Indeed, such
appointment does not contextually come within the restricting phrase without
reappointment twice written in that section. Delegate Foz even cautioned, as a
matter of fact, that a sitting commissioner accepting a promotional appointment to
fill up an unexpired portion pertaining to the higher office does so at the risk of
shortening his original term. To illustrate the Fozs concern: assume that Carague
left COA for reasons other than the expiration of his threshold 7-year term and
Villar accepted an appointment to fill up the vacancy. In this situation, the latter
can only stay at the COA and served the unexpired portion of Caragues unexpired
term as departing COA Chairman, even if, in the process, his (Villars) own 7-
year term as COA commissioner has not yet come to an end. In this illustration, the
inviolable regularity of the intervals between appointments in the COA is
preserved.

Moreover, jurisprudence tells us that the word reappointment means a


second appointment to one and the same office.[37] As Justice Arsenio Dizon
(Justice Dizon) aptly observed in his dissent in Visarra v. Miraflor,[38] the
constitutional prohibition against the reappointment of a commissioner refers to his
second appointment to the same office after holding it for nine years. [39] As Justice
Dizon observed, [T]he occupant of an office obviously needs no such second
appointment unless, for some valid cause, such as the expiration of his term or
resignation, he had ceased to be the legal occupant thereof. [40] The inevitable
implication of Justice Dizons cogent observation is that a promotion from
commissioner to chairman, albeit entailing a second appointment, involves a
different office and, hence, not, in the strict legal viewpoint, a reappointment.
Stated a bit differently, reappointment refers to a movement to one and the same
office. Necessarily, a movement to a different position within the commission
(from Commissioner to Chairman) would constitute an appointment, or a second
appointment, to be precise, but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice
Angelo Bautista, although he expressly alluded to a promotional appointment as
not being a prohibited appointment under Art. X of the 1935 Constitution.

Petitioners invocation of Matibag as additional argument to contest the


constitutionality of Villars elevation to the COA chairmanship is inapposite.
In Matibag, then President Macapagal-Arroyo appointed, ad interim, Alfredo
Benipayo as COMELEC Chairman and Resurreccion Borra and Florentino Tuason
as Commissioners, each for a term of office of seven (7) years. All three
immediately took their oath of, and assumed, office. These appointments were
twice renewed because the Commission on Appointments failed to act on the first
two ad interim appointments. Via a petition for prohibition, some disgruntled
COMELEC officials assail as infirm the appointments of Benipayo, et al.

Matibag lists (4) four situations where the prohibition on reappointment


would arise, or to be specific, where the proviso [t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without
reappointment shall apply. Justice Antonio T. Carpio declares in his dissent that
Villars appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the
situations referred to in Matibag, that case is of doubtful applicability to the instant
petition. Not only is it cast against a different milieu, but the lis mota of the case, as
expressly declared in the main opinion, is the very constitutional issue raised by
petitioner.[41] And what is/are this/these issue/s? Only two defined issues
in Matibag are relevant, viz: (1) the nature of an ad interim appointment and
subsumed thereto the effect of a by-passed ad interim appointment; and (2) the
constitutionality of renewals of ad interim appointments. The opinion defined these
issues in the following wise: Petitioner [Matibag] filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra
and Tuason as Chairman and Commissioners of the COMELEC, respectively.
Petitioner claims that the ad interim appointments of Benipayo, et al. violate the
constitutional provisions on the independence of COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its Chairman and
members. As may distinctly be noted, an upgrade or promotion was not in issue
in Matibag.

We shall briefly address the four adverted situations outlined


in Matibag, in which, as there urged, the uniform proviso on no reappointmentafter
a member of any of the three constitutional commissions is appointed for a term of
seven (7) yearsshall apply. Matibag made the following formulation:

The first situation is where an ad interim appointee after confirmation by


the Commission on Appointments serves his full 7-year term. Such person cannot
be reappointed whether as a member or as chairman because he will then be
actually serving more than seven (7) years.

The second situation is where the appointee, after confirmation, serves


part of his term and then resigns before his seven-year term of office ends. Such
person cannot be reappointed whether as a member or as chair to a vacancy
arising from retirement because a reappointment will result in the appointee
serving more than seven years.

The third situation is where the appointee is confirmed to serve the


unexpired portion of someone who died or resigned, and the appointee completes
the unexpired term. Such person cannot be reappointed whether as a member or as
chair to a vacancy arising from retirement because a reappointment will result in
the appointee also serving more than seven (7) years.

The fourth situation is where the appointee has previously served a


term of less than seven (7) years, and a vacancy arises from death or
resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed under the second
sentence of Sec. 1(20), Art. IX-C of the Constitution [referring to the first set
of appointees (the 5 and 3 year termers) whose term of office are less than 7
years but are barred from being reappointed under any situation].[42] (Words
in brackets and emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the
force of adjudication, for the corresponding formulation of the four situations was
not in any way necessary to resolve any of the determinative issues specifically
defined in Matibag. An opinion entirely unnecessary for the decision of the case or
one expressed upon a point not necessarily involved in the determination of the
case is an obiter.[43]

There can be no serious objection to the scenarios depicted in


the first, second and third situations, both hewing with the proposition that no one
can stay in any of the three independent commissions for an aggregate period of
more than seven (7) years. The fourth situation, however, does not commend itself
for concurrence inasmuch as it is basically predicated on the postulate that
reappointment, as earlier herein defined, of any kind is prohibited under any and all
circumstances. To reiterate, the word reappointment means a second appointment
to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and
similar provisions do not peremptorily prohibit the promotional appointment of a
commissioner to chairman, provided the new appointees tenure in both capacities
does not exceed seven (7) years in all. The statements in Matibag enunciating the
ban on reappointment in the aforecited fourth situation, perforce, must be
abandoned, for, indeed, a promotional appointment from the position of
Commissioner to that of Chairman is constitutionally permissible and not barred by
Sec. 1(2), Art. IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is


to ensure and preserve the independence of COA and its members, [44] citing what
the dissenting Justice J.B.L Reyes wrote in Visarra, that once appointed and
confirmed, the commissioners should be free to act as their conscience demands,
without fear of retaliation or hope or reward. Pursued to its logical conclusion,
petitioners thesis is that a COA member may no longer act with independence if he
or she can be rewarded with a promotion or appointment, for then he or she will do
the bidding of the appointing authority in the hope of being promoted or
reappointed.

The unstated reason behind Justice J.B.L. Reyes counsel is that


independence is really a matter of choice. Without taking anything away from the
gem imparted by the eminent jurist, what Chief Justice Moran said on the subject
of independence is just as logically sound and perhaps even more compelling, as
follows:

A Commissioner, hopeful of reappointment may strive to do good.


Whereas, without that hope or other hope of material reward, his enthusiasm may
decline as the end of his term approaches and he may even lean to abuses if there
is no higher restrain in his moral character. Moral character is no doubt the most
effective safeguard of independence. With moral integrity, a commissioner will be
independent with or without the possibility of reappointment.[45]
The Court is likewise unable to sustain Villars proposition that his
promotional appointment as COA Chairman gave him a completely fresh 7-year
termfrom February 2008 to February 2015given his four (4)-year tenure as COA
commissioner devalues all the past pronouncements made by this Court, starting
in De Vera, then Imperial, Visarra, and finally Matibag. While there had been
divergence of opinion as to the import of the word reappointment, there has been
unanimity on the dictum that in no case can one be a COA member, either as
chairman or commissioner, or a mix of both positions, for an aggregate term of
more than 7 years. A contrary view would allow a circumvention of the aggregate
7-year service limitation and would be constitutionally offensive as it would wreak
havoc to the spirit of the rotational system of succession. Imperial, passing upon
the rotational system as it applied to the then organizational set-up of the
COMELEC, stated:

The provision that of the first three commissioners appointed one shall
hold office for 9 years, another for 6 years and the third for 3 years, when taken
together with the prescribed term of office for 9 years without reappointment,
evinces a deliberate plan to have a regular rotation or cycle in the membership of
the commission, by having subsequent members appointable only once every
three years.[46]

To be sure, Villars appointment as COA Chairman partakes of a promotional


appointment which, under appropriate setting, would be outside the purview of the
constitutional reappointment ban in Sec 1(2), Art. IX(D) of the Constitution.
Nonetheless, such appointment, even for the term appearing in the underlying
appointment paper, ought still to be struck down as unconstitutional for the reason
as shall be explained.

Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the
appointment of a COA member shall be for a fixed 7-year term if the vacancy
results from the expiration of the term of the predecessor. We reproduce in its
pertinent part the provision referred to:

(2) The Chairman and Commissioners [on Audit] shall be appointed x


x x for a term of seven years without reappointment. x x x Appointment to any
vacancy shall be only for the unexpired portion of the term of the
predecessor. x x x

Accordingly, the promotional appointment as COA Chairman of Villar for


a stated fixed term of less than seven (7) years is void for violating a clear, but
mandatory constitutional prescription. There can be no denying that the vacancy in
the position of COA chairman when Carague stepped down in February 2, 2008
resulted from the expiration of his 7-year term. Hence, the appointment to the
vacancy thus created ought to have been one for seven (7) years in line with
the verbal legis approach[47] of interpreting the Constitution. It is to be understood,
however, following Gaminde, that in case of a belated appointment, the interval
between the start of the term and the actual appointment shall be counted against
the 7-year term of the appointee. Posing, however, as an insurmountable barrier to
a full 7-year appointment for Villar is the rule against one serving the commission
for an aggregate term of more than seven (7) years.

Where the Constitution or, for that matter, a statute, has fixed the term of
office of a public official, the appointing authority is without authority to specify in
the appointment a term shorter or longer than what the law provides. If the vacancy
calls for a full seven-year appointment, the President is without discretion to
extend a promotional appointment for more or for less than seven (7) years. There
is no in between. He or she cannot split terms. It is not within the power of the
appointing authority to override the positive provision of the Constitution which
dictates that the term of office of members of constitutional bodies shall be seven
(7) years.[48] A contrary reasoning would make the term of office to depend upon
the pleasure or caprice of the [appointing authority] and not upon the will [of the
framers of the Constitution] of the legislature as expressed in plain and undoubted
language in the law.[49]

In net effect, then President Macapagal-Arroyo could not have had, under
any circumstance, validly appointed Villar as COA Chairman, for a full 7-year
appointment, as the Constitution decrees, was not legally feasible in light of the 7-
year aggregate rule. Villar had already served 4 years of his 7-year term as COA
Commissioner. A shorter term, however, to comply with said rule would also be
invalid as the corresponding appointment would effectively breach the clear
purpose of the Constitution of giving to every appointee so appointed subsequent
to the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a
COA commissioner like respondent Villar who serves for a period less than seven
(7) years cannot be appointed as chairman when such position became vacant as a
result of the expiration of the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and constitutional, as the appointee will be
allowed to serve more than seven (7) years under the constitutional ban.

On the other hand, a commissioner who resigned before serving his 7- year
term can be extended an appointment to the position of chairman for the unexpired
period of the term of the latter, provided the aggregate of the period he served as
commissioner and the period he will serve as chairman will not exceed seven (7)
years. This situation will only obtain when the chairman leaves the office by reason
of death, disability, resignation or impeachment. Let us consider, in the concrete,
the situation of then Chairman Carague and his successor, Villar. Carague was
appointed COA Chairman effective February 2, 2001 for a term of seven (7) years,
or up to February 2, 2008. Villar was appointed as Commissioner on February 2,
2004 with a 7-year term to end on February 2, 2011. If Carague for some reason
vacated the chairmanship in 2007, then Villar can resign as commissioner in the
same year and later be appointed as chairman to serve only up to February 2, 2008,
the end of the unexpired portion of Caragues term. In this hypothetical scenario,
Villars appointment to the position of chairman is valid and constitutional as the
aggregate periods of his two (2) appointments will only be five (5) years which
neither distorts the rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however, forfeit two
(2) years of his original seven (7)-year term as Commissioner, since, by accepting
an upgraded appointment to Caragues position, he agreed to serve the unexpired
portion of the term of the predecessor. As illustrated earlier, following Mr. Fozs
line, if there is an upgrading of position from commissioner to chairman, the
appointee takes the risk of cutting short his original term, knowing pretty well
before hand that he will serve only the unexpired portion of the term of his
predecessor, the outgoing COA chairman.

In the extreme hypothetical situation that Villar vacates the position of


chairman for causes other than the expiration of the original term of Carague, the
President can only appoint the successor of Villar for the unexpired portion of the
Carague term in line with Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the President can appoint a new
chairman for a term of seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes
strong exception to the view that the promotional appointment of a sitting
commissioner is plausible only when he is appointed to the position of chairman
for the unexpired portion of the term of said official who leaves the office by
reason of any the following reasons: death, disability, resignation or
impeachment, not when the vacancy arises out as a result of the expiration of the
7-year term of the past chairman. There is nothing in the Constitution, so Justice
Mendoza counters, that restricts the promotion of an incumbentcommissioner to
the chairmanship only in instances where the tenure of his predecessor was cut
short by any of the four events referred to. As earlier explained, the majority view
springs from the interplay of the following premises: The explicit command of the
Constitution is that the Chairman and the Commissioners shall be appointed by the
President x x x for a term of seven years [and] appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor. To repeat, the
President has two and only two options on term appointments. Either he extends an
appointment for a full 7-year term when the vacancy results from the expiration of
term, or for a shorter period corresponding to the unexpired term of the
predecessor when the vacancy occurs by reason of death, physical disability,
resignation or impeachment. If the vacancy calls for a full seven-year appointment,
the Chief Executive is barred from extending a promotional appointment for less
than seven years. Else, the President can trifle with terms of office fixed by the
Constitution.

Justice Mendoza likewise invites attention to an instance in history when a


commissioner had been promoted chairman after the expiration of the term of his
predecessor, referring specifically to the appointment of then COMELEC
Commissioner Gaudencio Garcia to succeed Jose P. Carag after the expiration of
the latters term in 1959 as COMELEC chairman. Such appointment to the position
of chairman is not constitutionally permissible under the 1987 Constitution
because of the policy and intent of its framers that a COA member who has served
his full term of seven (7) years or even for a shorter period can no longer be
extended another appointment to the position of chairman for a full term of seven
(7) years. As revealed in the deliberations of the Constitutional Commission that
crafted the 1987 Constitution, a member of COA who also served as a
commissioner for less than seven (7) years in said position cannot be appointed to
the position of chairman for a full term of seven (7) years since the aggregate will
exceed seven (7) years. Thus, the adverted Garcia appointment in 1959 made under
the 1935 Constitution cannot be used as a precedent to an appointment of such
nature under the 1987 Constitution. The dissent further notes that the upgrading
remained uncontested. In this regard, suffice it to state that the promotion in
question was either legal or it was not. If it were not, no amount of repetitive
practices would clear it of invalidating taint.

Lastly, Villars appointment as chairman ending February 2, 2011 which


Justice Mendoza considers as valid is likewise unconstitutional, as it will destroy
the rationale and policy behind the rotational system or the staggering of
appointments and terms in COA as prescribed in the Constitution. It disturbs in a
way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of
the 1987 Constitution. Consider: If Villars term as COA chairman up to February
2, 2011 is viewed as valid and constitutional as espoused by my esteemed
colleague, then two vacancies have simultaneously occurred and two (2) COA
members going out of office at once, opening positions for two (2) appointables on
that date as Commissioner San Buenaventuras term also expired on that day. This
is precisely one of the mischiefs the staggering of terms and the regular intervals
appointments seek to address. Note that San Buenaventura was specifically
appointed to succeed Villar as commissioner, meaning she merely occupied the
position vacated by her predecessor whose term as such commissioner expired on
February 2, 2011. The result is what the framers of the Constitution doubtless
sought to avoid, a sitting President with a 6-year term of office, like President
Benigno C. Aquino III, appointing all or at least two (2) members of the three-man
Commission during his term. He appointed Ma. Gracia Pulido-Tan as Chairman for
the term ending February 2, 2015 upon the relinquishment of the post by
respondent Villar, and Heidi Mendoza was appointed Commissioner for a 7-year
term ending February 2, 2018 to replace San Buenaventura. If Justice Mendozas
version is adopted, then situations like the one which obtains in the Commission
will definitely be replicated in gross breach of the Constitution and in clear
contravention of the intent of its framers. Presidents in the future can easily control
the Commission depriving it of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the
Constitution, viz:
1. The appointment of members of any of the three constitutional
commissions, after the expiration of the uneven terms of office of the first set of
commissioners, shall always be for a fixed term of seven (7) years; an appointment
for a lesser period is void and unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7)
years in case of the expiration of the term as this will result in the distortion of the
rotational system prescribed by the Constitution.
2. Appointments to vacancies resulting from certain causes (death,
resignation, disability or impeachment) shall only be for the unexpired portion of
the term of the predecessor, but such appointments cannot be less than the
unexpired portion as this will likewise disrupt the staggering of terms laid down
under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who


were appointed for a full term of seven years and who served the entire period, are
barred from reappointment to any position in the Commission. Corollarily, the first
appointees in the Commission under the Constitution are also covered by the
prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less


than seven years is eligible for an appointment to the position of Chairman for the
unexpired portion of the term of the departing chairman. Such appointment is not
covered by the ban on reappointment, provided that the aggregate period of the
length of service as commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided further that the vacancy
in the position of Chairman resulted from death, resignation, disability or removal
by impeachment. The Court clarifies that reappointment found in Sec. 1(2), Art.
IX(D) means a movement to one and the same office (Commissioner to
Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to
Chairman) would constitute a new appointment and, hence, not, in the strict legal
sense, a reappointment barred under the Constitution.

5. Any member of the Commission cannot be appointed or designated


in a temporary or acting capacity.
WHEREFORE the petition is PARTLY GRANTED. The appointment of
then Commissioner Reynaldo A. Villar to the position of Chairman of the
Commission on Audit to replace Guillermo N. Carague, whose term of office as
such chairman has expired, is hereby declared UNCONSTITUTIONAL for
violation of Sec. 1(2), Art. IX(D) of the Constitution.

SO ORDERED.
Republic of the Philippines
Supreme Court
Baguio City

EN BANC

ATTY. VICENTE E. SALUMBIDES, G.R. No. 180917


JR., and GLENDA ARAA, Present:
Petitioners,
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
- versus - VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
OFFICE OF THE OMBUDSMAN, BERSAMIN,
RICARDO AGON, RAMON DEL CASTILLO,
VILLASANTA, ELMER ABAD,
DIZON, SALVADOR ADUL, and VILLARAMA, JR.,
AGNES FABIAN, PEREZ, and
Respondents, MENDOZA, JJ.

Promulgated:

April 23, 2010


x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa (Glenda)


challenge the October 11, 2007 Decision and the December 13, 2007 Resolution of
the Court of Appeals[1] in CA-G.R. SP No. 96889 affirming the Office of the
Ombudsmans decision finding them guilty of Simple Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal


Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan,
Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the
urgent need to construct a two-classroom building with fence (the projects) for the
Tagkawayan Municipal High School[2](TMHS) since the public school in the
poblacion area would no longer admit high school freshmen starting school year
2002-2003. On how to solve the classroom shortage, the mayor consulted
Salumbides who suggested that the construction of the two-classroom building be
charged to the account of the Maintenance and Other Operating Expenses/ Repair
and Maintenance of Facilities (MOOE/RMF) and implemented by administration,
as had been done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that


there were no more available funds that could be taken from the MOOE/RMF, but
the savings of the municipal government were adequate to fund the projects. She
added, however, that the approval by the Sangguniang Bayan of a proposed
supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for
the Christmas holidays, Glenda and Salumbides advised the mayor to source the
funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal
Annual Budget for 2002.[3]
The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino
(Aquino) to proceed with the construction of the projects based on the program of
work and bill of materials he (Aquino) prepared with a total cost estimate
of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason


(Jason), the mayor included the projects in the list of local government projects
scheduled for bidding on January 25, 2002which, together with the January 31,
2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on


reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2


projects which were at the time on-going (although it was also my thinking then
that no bidder would possibly bid for these 2 projects as these were cost-estimated
very low-P150,000 for the 2-room school building P72,000 for the fencing) he
(bidder) would be reasonable enough to reimburse what I had so far spen[t] for the
project. I said I because up to the time of the failed 2 biddings I have shouldered
the vale of the laborers and I requisitioned some materials on credit on my own
personal account, and not a single centavo was at the time disbursed by our
municipal treasury until all requirements for negotiated purchase of the materials
for the project had been accomplished. As a matter of fact, payments for the
expenses on these 2 projects have been made only starting 19 March 2002. x x
x[4] (underscoring supplied)

The construction of the projects commenced without any approved


appropriation and ahead of the public bidding. Salumbides was of the opinion that
the projects were regular and legal, based on an earlier project that was
implemented in the same manner, using the same source of fund and for the same
reason of urgency which was allowed because the building was considered merely
temporary as the TMHS is set to be transferred to an 8-hectare lot which the
municipal government is presently negotiating to buy.[5]
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of
model guidelines in the implementation of infrastructure projects to be executed by
administration, while Councilor Coleta Sandro (Coleta) sponsored a Resolution to
ratify the projects and to authorize the mayor to enter into a negotiated
procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta,


Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang
Bayan of Tagkawayan, filed with the Office of the Ombudsman a
complaint[6] against Salumbides and Glenda (hereafter petitioners), the mayor,
Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-


0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross
Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and
violation of the Commission on Audit (COA) Rules and the Local Government
Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to
place petitioners et al. under preventive suspension pending investigation. By
Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for
reconsideration but dropped the mayor and Coleta, both elective officials, as
respondents in the administrative case, the 2004 elections having mooted the
case. The parties were thereupon directed to submit their respective verified
position papers to which petitioners, Jason and Aquino complied by submitting a
consolidated position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the
Ombudsman on February 18, 2005 requiring the regional officer of the COA to
submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II
claimed by Affidavit of May 23, 2005 that the required documents were among
those razed by fire on April 14, 2004 that hit the Office of the Municipal
Accountant where they were temporarily stored due to lack of space at the
Provincial Auditors Office.

On October 17, 2005, the Office of the Ombudsman approved the September 9,
2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of
Simple Neglect of Duty, for which they were meted the penalty of suspension from
office for a maximum period of six months with a stern warning against a similar
repetition. It also approved on November 2, 2006 the March 27,
2006 Order[7] denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before
this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping,


the petition merits outright dismissal. The verification portion of the petition does
not carry a certification against forum shopping.[8]

The Court has distinguished the effects of non-compliance with the requirement of
verification and that of certification against forum shopping. A defective
verification shall be treated as an unsigned pleadingand thus produces no legal
effect, subject to the discretion of the court to allow the deficiency to be remedied,
while the failure to certify against forum shopping shall be cause for dismissal
without prejudice, unless otherwise provided, and is not curable by amendment of
the initiatory pleading.[9]
Petitioners disregard of the rules was not the first. Their motion for
extension of time to file petition was previously denied by Resolution of January
15, 2008[10] for non-compliance with the required showing of competent proof of
identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,
[11]
later granted their motion for reconsideration with motion to admit appeal
(Motion with Appeal) that was filed on February 18, 2008 or the last day of filing
within the extended period.

Moreover, in their Manifestation/Motion[12] filed a day later, petitioners prayed


only for the admission of nine additional copies of the Motion with Appeal due to
honest inadvertence in earlier filing an insufficient number of copies. Petitioners
were less than candid when they surreptitiously submitted a Motion with Appeal
which is different from the first set they had submitted. The second set of Appeal
includes specific Assignment of Errors[13] and already contains a certification
against forum shopping[14] embedded in the Verification. The two different
Verifications were notarized by the same notary public and bear the same date and
document number.[15] The rectified verification with certification, however, was
filed beyond the reglementary period.
Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation [16] to cover
coterminous appointive officials who were administratively charged along with the
reelected official/appointing authority with infractions allegedly committed during
their preceding term.

The Court rejects petitioners thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva
Ecija[17] issued the landmark ruling that prohibits the disciplining of an elective
official for a wrongful act committed during his immediately preceding term of
office. The Court explained that [t]he underlying theory is that each term is
separate from other terms, and that the reelection to office operates as a
condonation of the officers previous misconduct to the extent of cutting off the
right to remove him therefor.[18]

The Court should never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of their right to
elect their officers. When the people elect[e]d a man to office, it must be assumed
that they did this with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of any. It is
not for the court, by reason of such faults or misconduct[,] to practically overrule
the will of the people.[19] (underscoring supplied)

Lizares v. Hechanova, et al.[20] replicated the doctrine. The Court dismissed


the petition in that case for being moot, the therein petitioner having been duly
reelected, is no longer amenable to administrative sanctions.[21]

Ingco v. Sanchez, et al.[22] clarified that the condonation doctrine does not
apply to a criminal case.[23] Luciano v. The Provincial Governor, et al.,[24] Olivarez
v. Judge Villaluz,[25] and Aguinaldo v. Santos[26] echoed the qualified rule that
reelection of a public official does not bar prosecution for crimes committed by
him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent
jurisprudence including two cases involving a Senator and a Member of the House
of Representatives.[27]

Salalima v. Guingona, Jr.[28] and Mayor Garcia v. Hon. Mojica[29] reinforced the
doctrine. The condonation rule was applied even if the administrative complaint
was not filed before the reelection of the public official, and even if the alleged
misconduct occurred four days before the elections, respectively. Salalima did not
distinguish as to the date of filing of the administrative complaint, as long as the
alleged misconduct was committed during the prior term, the precise timing or
period of which Garcia did not further distinguish, as long as the wrongdoing that
gave rise to the public officials culpability was committed prior to the date of
reelection.

Petitioners theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor[30] where the
Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondents contention that his appointment


to the position of president of NORSU, despite the pending administrative cases
against him, served as a condonation by the BOR of the alleged acts imputed to
him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo
v. Santos are inapplicable to the present circumstances. Respondents in the
mentioned cases are elective officials, unlike respondent here who is an appointed
official. Indeed, election expresses the sovereign will of the people. Under the
principle of vox populi est suprema lex, the re-election of a public official may,
indeed, supersede a pending administrative case. The same cannot be said of a
re-appointment to a non-career position. There is no sovereign will of the
people to speak of when the BOR re-appointed respondent Sojor to the post of
university president.[31] (emphasis and underscoring supplied)

Contrary to petitioners asseveration, the non-application of the condonation


doctrine to appointive officials does not violate the right to equal protection of the
law.
In the recent case of Quinto v. Commission on Elections,[32] the Court applied the
four-fold test in an equal protection challenge [33] against the resign-to-run
provision, wherein it discussed the material and substantive distinctions between
elective and appointive officials that could well apply to the doctrine of
condonation:

The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality. It
is not intended to prohibit legislation which is limited either in the object to which
it is directed or by territory within which it is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exist for
making a distinction between those who fall within such class and those who do
not.

Substantial distinctions clearly exist between elective officials and appointive


officials. The former occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other hand, appointive officials
hold their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent capacity and
are entitled to security of tenure while others serve at the pleasure of the
appointing authority.

xxxx
An election is the embodiment of the popular will, perhaps the purest expression
of the sovereign power of the people. It involves the choice or selection of
candidates to public office by popular vote. Considering that elected officials are
put in office by their constituents for a definite term, x x x complete deference is
accorded to the will of the electorate that they be served by such officials until the
end of the term for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned. (emphasis and
underscoring supplied)

The electorates condonation of the previous administrative infractions of the


reelected official cannot be extended to that of the reappointed coterminous
employees, the underlying basis of the rule being to uphold the will of the people
expressed through the ballot. In other words, there is neither subversion of the
sovereign will nor disenfranchisement of the electorate to speak of, in the case of
reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the
appointing authority, that could extinguish an administrative liability. Since
petitioners hold appointive positions, they cannot claim the mandate of the
electorate. The people cannot be charged with the presumption of full knowledge
of the life and character of each and every probable appointee of the elective
official ahead of the latters actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a


dangerous precedent as it would, as respondents posit, provide civil servants,
particularly local government employees, with blanket immunity from
administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the
evidence and re-assess the factual findings. This the Court cannot do, for being
improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since
the Court is not a trier of facts. [34] As a rule, the Court is not to review evidence on
record and assess the probative weight thereof. In the present case, the appellate
court affirmed the factual findings of the Office of the Ombudsman, which
rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be


appreciated in favor of petitioners who were found guilty of simple neglect of duty,
for if they conspired to act negligently, their infraction becomes intentional.
[35]
There can hardly be conspiracy to commit negligence.[36]
Simple neglect of duty is defined as the failure to give proper attention to a task
expected from an employee resulting from either carelessness or indifference. [37] In
the present case, petitioners fell short of the reasonable diligence required of them,
for failing to exercise due care and prudence in ascertaining the legal requirements
and fiscal soundness of the projects before stamping their imprimatur and giving
their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner
Salumbides failed to uphold the law and provide a sound legal assistance and
support to the mayor in carrying out the delivery of basic services and provisions
of adequate facilities when he advised [the mayor] to proceed with the construction
of the subject projects without prior competitive bidding. [38] As pointed out by the
Office of the Solicitor General, to absolve Salumbides is tantamount to allowing
with impunity the giving of erroneous or illegal advice, when by law he is
precisely tasked to advise the mayor on matters related to upholding the rule of
law.[39] Indeed, a legal officer who renders a legal opinion on a course of action
without any legal basis becomes no different from a lay person who may approve
the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of
government funds upon the direction of the mayor and prior advice by the
municipal legal officer did not relieve her of liability for willingly cooperating
rather than registering her written objection[40] as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the
improper itemization of the expense, held that the funding for the projects should
have been taken from the capital outlays that refer to the appropriations for the
purchase of goods and services, the benefits of which extend beyond the fiscal year
and which add to the assets of the local government unit. It added that current
operating expenditures like MOOE/RMF refer to appropriations for the purchase
of goods and services for the conduct of normal local government operations
within the fiscal year.[41]

In Office of the Ombudsman v. Tongson,[42] the Court reminded the therein


respondents, who were guilty of simple neglect of duty, that government funds
must be disbursed only upon compliance with the requirements provided by law
and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by


suspension without pay for one month and one day to six months. Finding no
alleged or established circumstance to warrant the imposition of the maximum
penalty of six months, the Court finds the imposition of suspension without pay for
three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to
faithfully perform the duties of the office and use reasonable skill and diligence,
and to act primarily for the benefit of the public. Thus, in the discharge of duties, a
public officer is to use that prudence, caution, and attention which careful persons
use in the management of their affairs.[43]

Public service requires integrity and discipline. For this reason, public servants
must exhibit at all times the highest sense of honesty and dedication to duty. By the
very nature of their duties and responsibilities, public officers and employees must
faithfully adhere to hold sacred and render inviolate the constitutional principle
that a public office is a public trust; and must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency. [44]

WHEREFORE, the assailed Decision and Resolution of the Court of


Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in
that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended from
office for three (3) months without pay.

SO ORDERED.

EN BANC

[G.R. No. 159940. February 16, 2005]

OFFICE OF THE OMBUDSMAN, petitioner, vs. CIVIL SERVICE


COMMISSION, respondent.

DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules
of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service
Commission (CSC) dated August 28, 2003.
The antecedents of the case are as follows:
By letter dated March 7, 1994 addressed to then Ombudsman Conrado M.
[1]

Vasquez, the CSC approved the Qualification Standards for several positions in the
Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III.
The Qualification Standards for said position are:

EDUCATION: Bachelor of Laws

EXPERIENCE: 5 years of experience in the practice of law, counseling,


investigation/ prosecution of cases, hearings of administrative/ criminal cases,
legal research or other related work.

TRAINING: 24 hours of relevant training

ELIGIBILITY: RA 1080 (Bar)

The Career Executive Service Board (CESB) subsequently advised the


Ombudsman, by letter of May 29, 1996, that pursuant to CSC Memorandum Circular
[2]

No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in
petitioner therein mentioned, was classified as a Career Executive Service (CES)
position, hence, governed by the rules of the CES pertaining to eligibility, appointment to
CES ranks, and performance evaluation, among other things.
On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group
(CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on
Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted
Joint Resolution No. 62 reading:
[3]

JOINT RESOLUTION NO. 62

WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy


Group (CFAG) is guaranteed by the Constitution;

WHEREAS, the Constitution has several provisions that guarantee and protect such
independence, among which are Sections 4 and 5 of Article IX, A thereof, which
respectively grant them Fiscal Autonomy and authorize them to appoint their own
officials and employees in accordance with law;

WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987


enumerates exclusively and restrictively the specific positions under the Career
Executive Service, all the holders of which are appointed by the President and
are required to have CES eligibility;

WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service


Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme
Court nullified the classification by the CSC of the position of Corporate Vice
President as belonging to the third level of the Career Executive Services;

WHEREAS, the Court declared in the above cited case that said position is not among
those enumerated by law as falling under the third level, nor one of those identified by
the CES Board as equivalent rank to those listed by law, nor was the incumbent
appointed by the President;

WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867,
dated 18 December 1990, the Supreme Court ruled that Article IX-A, Sec. 1 of the
Constitution expressly describes all Constitutional Commissions as Independent.
Although essentially executive in nature, they are not under the control of the
President of the Philippines in the discharge of their respective functions.

WHEREAS, only the Chairmen and Commissioners of the Constitutional


Commissions, the Commission on Human Rights, Justices and Judges, as well as the
Ombudsman and his Deputies, are appointed by the President;

WHEREAS, the Constitutional Commissions, the Supreme Court, the


Commission on Human Rights, and the Office of the Ombudsman are
empowered to appoint officials and employees to positions belonging to first level
up to third level of their respective agencies, and that they are not presidential
appointees;

WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the


Administrative Code of 1987, provides in part that [t]he degree of qualifications of an
officer or employee shall be determined by the appointing authority on the basis of the
qualification standard for the particular positions[,] and par. 2 thereof provides that
[t]he establishment, administration and maintenance of qualification standards shall be
the responsibility of the department or agency, with the assistance and approval of the
Civil Service Commission;

NOW, THEREFORE, the CFAG jointly resolves:

1. That all third level positions under each member agency are career
positions;
2. That, where appropriate and proper, taking into consideration the organizational
set-up of the agency concerned, the overall screening and selection process for these
positions shall be a collegial undertaking, provided that the appointment paper shall be
signed only by the Head of the member agency;
3. That all career third level positions identified and classified by each of the
member agency are not embraced within the Career Executive Service (CES) and
as such shall not require Career Service Executive Eligibility (CSEE) or Career
Executive Service (CES) Eligibility for purposes of permanent appointment;
4. That should CFAG member agencies develop their respective eligibility
requirements for the third level positions, the test of fitness shall be jointly undertaken
by the CFAG member agencies in coordination with the CSC;
5. That in case the test of fitness shall be in written form, the CSC shall prepare the
questionnaires and conduct the examinations designed to ascertain the general
aptitude of the examinees while the member agency shall likewise prepare the
questionnaires and conduct in conjunction with the CSC, the examinations to
determine the technical capabilities and expertise of the examinees suited to its
functions;
6. That the resulting eligibility acquired after passing the aforementioned
examination shall appropriate for permanent appointment only to third level positions in
the CFAG member agencies;
7. That the member agencies shall regularly coordinate with the CSC for the
conferment of the desired eligibility in accordance with this Resolution; However this is
without prejudice to those incumbents who wish to take the Career Service Executive
Examination given by the Civil Service Commission or the Management Aptitude Test
Battery given by the Career Executive Service Board. (Underscoring in the original
omitted; emphasis, italics and underscoring supplied)
On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose
Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by
the Ombudsman. The CSC approved the appointments on the condition that for the
appointees to acquire security of tenure, they must obtain CES or Civil Service
Executive (CSE) eligibility which is governed by the CESB.
By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of
status, from temporary to permanent, of the appointments of Carandang, Clemente and
De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N.
Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), as affirmed by the
Supreme Court, the Ombudsman wrote:

xxx

In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP
No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R.
No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said
Decision that the letter and intent of the law is to circumscribe the Career
Executive Service (CES) to CES positions in the Executive Branch of
Government, and that the Judiciary, the Constitutional Commissions, the Office
of the Ombudsman and the Commission on Human Rights are not covered by the
CES governed by the Career Executive Service Board. Said Decision thereby
effectively granted the petition of Mr. Inok for security of tenure as Director II of
the Commission on Audit despite the absence of a CES eligibility. (Emphasis
[4]

and italics supplied)

The relevant portions of the cited CA decision read:

Presidential Decree No. 807, otherwise known as the Civil Service Decree of the
Philippines, provides the following levels of position in the career service, viz:

SEC. 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requires


examinations shall be grouped into three major levels as follows:

(1) The first level shall include clerical, trades, crafts, and custodial service positions
which involve non-professional or subprofessional work in a non-supervisory or
supervisory capacity requiring less than four years of collegiate studies;

(2) The second level shall include professional, technical, and scientific positions
which involve professional; technical, or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of college work up to Division Chief
level; and

(3) The third level shall cover positions in the Career Executive Service.

(b) Except as herein otherwise provided, entrance to the first two levels shall be
through competitive examinations, which shall be open to those inside and outside the
service who meet the minimum qualification requirements. Entrance to a higher
level does not require previous qualification in a lower level. Entrance to the
third level shall be prescribed by the Career Executive Service Board.

(c) Within the same level, no civil service examination shall be required for promotion
to a higher position in one or more related occupational groups. A candidate for
promotion should however, have previously passed the examination for that level.

The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D.
No. 1, Article IV, par. IV, par. 5(a), to wit:
(a) Membership. A person who meets such managerial experience and other
requirements and passes such examinations as may be prescribed by the Board shall
be included in the register of career service eligibles and, upon appointment to an
appropriate class in the Career Executive Service, become an active member in the
Service. In exceptional cases, the Board may give unassembled examinations for
eligibility. The area of recruitment shall be government-wide, with provisions to allow
qualified or outstanding men from outside the government to enter the service.

Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES),
which has been [d]rafted into Executive Order No. 292, that the letter and intent of the
law is to circumscribe the Career Executive Service to CES positions in the Executive
Branch of government. Verily, consistent with the principle of the ejusdem generis in
legal hermeneutics, the phrase other officers of equivalent rank could encompass only
such persons occupying positions in the Executive Department. In the
contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs.
Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz:

Security of tenure in the career executive service is acquired with respect to rank and
not to position. The guarantee of security of tenure to members of the CES does
not extend to the particular positions to which they may be appointed a concept which
is applicable only to frst and second level employees in the civil service but to the
rank to which they are appointed by the President. x x x

Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to
the Commissions stance that the positions of Director III, including that of the COA,
belong to the third level. Hence, appointees thereto should possess the x x x Career
Executive Service (CES) Eligibility in accordance with the Qualification Standard of
the said position.

Ineluctably, the judiciary, the Constitutional Commissions, the Office of the


Ombudsman, and the Commission on Human Rights are not covered by the CES
governed by the CESB. The power of these constitutional offices to appoint their own
officers and employees is mainly intended to safeguard their independence, which is
the same power of appointment of all officials and employees of the judiciary granted
to the Supreme Court. As commented by a noted constitutionalist:

The authority of the Supreme Court to appoint its own officials and employees is
another measure intended to safeguard the independence of the judiciary. However,
the Courts appointing authority must be exercised in accordance with the Civil
Service Law.
Irrefragrably, inherent in the power to appoint is the power to administratively
supervise the officials and employees in the constitutional offices in the same manner
that the express power to appoint carries with it the implied power to remove the
personnel appointed in said offices. x x x

xxx

Parenthetically, the power to administratively supervise is designed to strengthen the


independence of the constitutional offices. A respected authority on political law
underscored the multifarious factors that are integral to the independence of the
constitutional offices, scilicet:

There are several factors that preserve the independence of the three Commissions:

xxx

(3) Their appointment must be in a permanent capacity.

(4) The Commissions enjoy their own fiscal autonomy.

The independence of these constitutional offices serves to exempt their respective


officials and employees from the coverage of the CES under the administrative
authority of the CESB. to be sure, they are embraced by the civil service system.
However, the administrative functions belong to the constitutional offices, instead of
the CESB in the same manner that the Supreme Court administers the judiciarys civil
service.

x x x (Italics and emphasis in the original;


[5]

underscoring partly in the original and partly supplied;


citations omitted)
It appears that Carandang and Clemente were in the meantime conferred with CSE
Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003. [6]

Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated


August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft
Investigation and Prosecution Officer III. The Ombudsman thereupon requested the
approval of the proposed Qualification Standards for the reclassified positions. With
respect to the reclassified Graft Investigation and Prosecution Officer III position, the
Qualification Standards were the same as those for Graft Investigation Officer III.
Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed
the status of Carandangs and Clementes appointments to permanent effective June 6,
2003, but not with respect to De Jesus on the ground that he has not met the eligibility
requirements. The pertinent portion of the questioned Resolution reads:
Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the
Omnibus Rules on Appointments and Other Personnel Action, which state:

SEC. 4. Nature of Appointment. The nature of appointment shall be as follows:

xxx

i. Change of status:

1. temporary to permanent the appointment issued to a temporary employee when he


acquires the appropriate eligibility or becomes fully qualified for the position to which
he is appointed.

xxx

SEC. 6. In cases where the appointee fully qualifies for the position to which he is
temporarily appointed, the appointing authority shall no longer issue an appointment
for change of status from temporary to permanent. Upon the appointees presentation
of the required document/s, such change may be effected as a footnote on the
temporary appointment issued, copy furnished the Commission.

It is explicitly provided therein that the change of status from temporary to


permanent can be effected only once the appointee becomes fully qualified to the
position to which he is appointed.

xxx

The pronouncement of the Court of Appeals in the Inok case cannot be made the basis
for changing the employment status of De Jesus. Let it be stressed that nowhere in the
aforesaid decision states that the Office of the Ombudsman or the other constitutional
agencies mentioned therein are exempt or are not covered by the Civil Service Law
and Rules. On the contrary, the same decision declares that these bodies are covered
by the civil service system. Basic is the rule that all appointments in the government
service, particularly the career service, must be in accordance with the qualification
requirements as laid down under existing civil service rules and regulations. Such
policy is in line with the Commissions mandate to professionalize the civil
service. The requirements spelled out in the Qualification Standards (QS)
Manual are designed to determine the fitness of the appointee in a certain
position. These requirements are indispensable in order to satisfy the
Constitutional mandate that appointment in the civil service shall be made
according to merit and fitness.
While it is true that constitutional agencies such as the Office of the Ombudsman has
the authority to appoint its officials in accordance with law, such law does not
necessarily imply that their appointment will not be subject to Civil Service Law and
Rules; otherwise, these independent bodies will arrogate upon themselves a power
that properly belongs to the Civil Service Commission. Had the intention of the
framers of the Constitution been to isolate and grant full independence to
Constitutional Commissions in the matter of appointments, it would have been so
provided. But that is not the case. the Philippine Constitution provides: The
Constitutional Commissions shall appoint their officials and employees in accordance
with law (Article IX-A, Section 4). Specifically, Section 6, Article XI of the
Constitution states that The officials, shall be appointed by the Ombudsman according
to the Civil Service Law. And since all matters pertaining to appointments are within
the realm of expertise to the CSC, all laws, rules and regulations it issues on
appointments must be complied with.

The Constitution speaks of only one civil service, to encompass the first, second, and
third levels. It is subject to the same set of laws, rules and regulations in the manner of
observing and ensuring that the merit and fitness principle, unless otherwise exempted
therefrom by the Constitution or law, is the guiding factor in issuing appointments.
Hence, until and unless there is a law or rule exempting one category of public
officials from the test in determining merit and fitness, all levels in the government are
deemed subject to it. Simply put, the third level eligibility requirement for third level
officials in all agencies is mandatory.

Further, let it be clarified that the ruling enunciated in Inok case was with regard to the
authority of the Career Executive Service Board to prescribe and to administer the
Career Executive Service Eligibility and it did not specifically nor particularly take
away the functions of the Civil Service Commission. This is evident from the
aforequoted decision in the Inok case, to wit:

The independence of these constitutional offices serves to exempt their respective


officials and employees from the coverage of the CES under the administrative
authority of the CESB. To be sure, they are embraced by the civil service system.
However, the administrative functions belong to the constitutional offices, instead of
the CESB in the manner that the Supreme Court administers the judiciarys civil
service.

Pursuant to the QS Manual, a Graft Investigation Officer III position is a career


service position requiring a Career Service Eligibility or Career Service
Executive Eligibility. Considering that De Jesus has not met the eligibility
requirement, the change of status of his appointment from temporary to
permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235:
It is settled that a permanent appointment can be issued only to a person who meets all
the requirements for the position to which he is appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary.

x x x (Underscoring partly in the original and partly supplied; emphasis supplied)

Hence, the present petition anchored on the following ground:

THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION


(CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY
AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF
APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY
THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN
FAVOR OF THE LATTERS OWN OFFICIALS, AND ANY SUCH CURTAILMENT
BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919
DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM.

Petitioner contends that the CSC misreads the ratio of the appellate court decision
in Inok. It contends that the Ombudsman, as an appointing authority, is specifically
tasked by the Constitution to choose his own qualified personnel, which includes the
lesser power of granting security of tenure to his appointees once the basic qualification
requirements are satisfied.[7]

Petitioner likewise contends that its constitutional discretion as an independent


appointing authority cannot be curtailed by the CSC which has no authority to review
the appointments made by other offices except only to ascertain if the appointee
possesses the required qualifications.[8]

Petitioner further contends that the CES Eligibility, as administered by the


respondent CESB, cannot be validly made a requisite for the attainment of security of
tenure on qualified career officials of petitioner who are not legally part of the CES.
Finally, petitioner argues that its officials which are appointed by the Ombudsman
are technically classified as belonging to the Closed Career Service, the positions being
unique and highly technical as they involve investigatorial, quasi-judicial and
prosecutorial functions, in much the same way as judges are involved in judicial
functions. Hence, petitioner concludes, appointment to such positions is likewise
characterized by security of tenure.
During the pendency of the case before this Court, the CSC, by Resolution No. [9]

040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft
Investigation and Prosecution Officer I, II and III. As proposed, the following
Qualification Standards for Graft Investigation and Prosecution Officer III were
approved:

Education : Bachelor of Laws


Experience : Five (5) years of experience in the practice of law,
counseling, investigation/ prosecution of cases,
hearings of administrative/criminal cases, legal
research or other related works
Training : 24 hours of relevant training
Eligibility : RA 1080 (BAR)

The petition is impressed with merit.


That the positions subject of the present case are unique and highly technical in
nature, as are those of the Judiciary, is recognized by the constitutional offices under
the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member. [10]

Inok cannot be invoked as precedent in arriving at the question raised in this


petition. This Court dismissed the petition of the CSC in the Inok case on a technicality
therein petitioner CSCs failure to file a reply within the required period and not on the
merits.
Book V, Title I, Subtitle A of the Administrative Code of 1987 provides:

SECTION 7. Career Service. The Career Service shall be characterized by (1)


entrance based on merit and fitness to be determined as far as practicable by
competitive examination, or based on highly technical qualifications; (2) opportunity
for advancement to higher career positions; and (3) security of tenure.

The Career Service shall include:

1) Open Career positions for appointment to which prior qualification in an


appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical in


nature; these include the faculty and academic staff of state colleges and
universities, and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary,


Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive
Service Board, all of whom are appointed by the President;

x x x (Emphasis and underscoring supplied)

From the above-quoted provision of the Administrative Code, persons occupying


positions in the CES are presidential appointees. A person occupying the position of
Graft Investigation Officer III is not, however, appointed by the President but by the
Ombudsman as provided in Article IX of the Constitution, to wit:

SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN,


OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE
OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW.

To classify the position of Graft Investigation Officer III as belonging to the CES and
require an appointee thereto to acquire CES or CSE eligibility before acquiring security
of tenure would be absurd as it would result either in 1) vesting the appointing power for
said position in the President, in violation of the Constitution; or 2) including in the CES
a position not occupied by a presidential appointee, contrary to the Administrative Code.
It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC
to approve appointments to positions in the civil service, except those specified therein,
its authority is limited only to [determine] whether or not the appointees possess the
legal qualifications and the appropriate eligibility, nothing else.
[11]

It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus
possesses the basic qualifications of a Graft Investigation Officer III, as provided in the
earlier quoted Qualification Standards. Such being the case, the CSC has the
ministerial duty to grant the request of the Ombudsman that appointment be made
permanent effective December 18, 2002. To refuse to heed the request is a clear
encroachment on the discretion vested solely on the Ombudsman as appointing
authority. It goes without saying that the status of the appointments of Carandang and
[12]

Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665
dated June 6, 2003, should be changed to permanent effective December 18, 2002 too.
In a Supplemental Memorandum received by this Court on January 5, 2005, the
[13]

CSC alleged that, inter alia:

. . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is


the same position which is the subject of the herein case. Suffice it to state
that the eligibility requirement under the new QS is no longer third level eligibility but
RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS
for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to
the authority of the CSC to administer the Civil Service Executive Examination for
third level positions and to prescribe third level eligibility to third level positions in
the Office of the Ombudsman be resolved.

As the Court takes note of the information of the CSC in its Supplemental
Memorandum, it holds that third level eligibility is not required for third level officials of
petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis
a vis the Administrative Code of 1987 as discussed above.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil
Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of
Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul
Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario and Garcia, JJ., concur.

G.R. No. 95237-38 September 13, 1991

DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER DISTRICT, METRO CEBU
WATER DISTRICT, ZAMBOANGA CITY WATER DISTRICT, LEYTE METRO WATER DISTRICT,
BUTUAN CITY WATER DISTRICT, CAMARINES NORTE WATER DISTRICT, LAGUNA WATER
DISTRICT, DUMAGUETE CITY WATER DISTRICT, LA UNION WATER DISTRICT, BAYBAY
WATER DISTRICT, METRO LINGAYEN WATER DISTRICT, URDANETA WATER DISTRICT,
COTABATO CITY WATER DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER DISTRICT,
DIGOS WATER DISTRICT, BISLIG WATER DISTRICT, and MECAUAYAN WATER
DISTRICT,petitioners,
vs.
CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents.

Rodolfo S. De Jesus for petitioners.


Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC.

MEDIALDEA, J.:p

Whether or not the Local Water Districts formed and created pursuant to the provisions of
Presidential Decree No. 198, as amended, are government-owned or controlled corporations with
original charter falling under the Civil Service Law and/or covered by the visitorial power of the
Commission on Audit is the issue which the petitioners entreat this Court, en banc, to shed light on.

Petitioners are among the more than five hundred (500) water districts existing throughout the
country formed pursuant to the provisions of Presidential Decree No. 198, as amended by
Presidential Decrees Nos. 768 and 1479, otherwise known as the "Provincial Water Utilities Act of
1973."

Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos by virtue of his
legislative power under Proclamation No. 1081. It authorized the different local legislative bodies to
form and create their respective water districts through a resolution they will pass subject to the
guidelines, rules and regulations therein laid down. The decree further created and formed the
"Local Water Utilities Administration" (LWUA), a national agency attached to the National Economic
and Development Authority (NEDA), and granted with regulatory power necessary to optimize public
service from water utilities operations.

The respondents, on the other hand, are the Civil Service Commission (CSC) and the Commission
on Audit (COA), both government agencies and represented in this case by the Solicitor General.
On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton, et al. (G.R. No.
63742, 172 SCRA 253):

Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides that the Civil
Service embraces all branches, subdivisions, instrumentalities, and agencies of the
government, including government-owned and controlled corporations with original charters.
Inasmuch as PD No. 198, as amended, is the original charter of the petitioner, Tanjay Water
District, and respondent Tarlac Water District and all water districts in the country, they come
under the coverage of the Civil Service Law, rules and regulations. (Sec. 35, Art. VIII and
Sec. 37, Art. IX of PD No. 807).

As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-575, the
dispositive portion of which reads:

NOW THEREFORE, in view of all the foregoing, the Commission resolved, as it hereby
resolves to rule that Local Water Districts, being quasi-public corporations created by law to
perform public services and supply public wants, the matter of hiring and firing of its officers
and employees should be governed by the Civil Service Law, rules and regulations.
Henceforth, all appointments of personnel of the different local water districts in the country
shall be submitted to the Commission for appropriate action. (Rollo. p. 22).

However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District v. National Labor
Relations Commission, et al.," the Third Division of this Court ruled in a minute resolution:

xxx xxx xxx

Considering that PD 198 is a general legislation empowering and/or authorizing government


agencies and entities to create water districts, said PD 198 cannot be considered as the
charter itself creating the Water District. Public respondent NLRC did not commit any grave
abuse of discretion in holding that the operative act, that created the Metro Iloilo Water
District was the resolution of the Sangguniang Panglunsod of Iloilo City. Hence, the
employees of Water Districts are not covered by Civil Service Laws as the latter do (sic) not
have original charters.

In adherence to the just cited ruling, the CSC suspended the implementation of Resolution No. 90-
575 by issuing Resolution No. 90-770 which reads:

xxx xxx xxx

NOW, THEREFORE, in view of all the foregoing, the Commission resolved to rule, as it
hereby rules, that the implementation of CSC. Resolution No. 575 dated June 27, 1990 be
deferred in the meantime pending clarification from the Supreme Court are regards its
conflicting decisions in the cases of Tanjay Water District v. Gabaton and Metro Iloilo Water
District v. National Labor Relations Commission. (p. 26, Rollo)

In the meanwhile, there exists a divergence of opinions between COA on one hand, and the (LWUA),
on the other hand, with respect to the authority of COA to audit the different water districts.

COA opined that the audit of the water districts is simply an act of discharging the visitorial power
vested in them by law (letter of COA to LWUA dated August 13, 1985, pp. 29-30, Rollo).
On the other hand, LWUA maintained that only those water districts with subsidies from the
government fall within the COA's jurisdiction and only to the extent of the amount of such subsidies,
pursuant to the provision of the Government Auditing Code of the Phils.

It is to be observed that just like the question of whether the employees of the water districts falls
under the coverage of the Civil Service Law, the conflict between the water districts and the COA is
also dependent on the final determination of whether or not water districts are government-owned or
controlled corporations with original charter. The reason behind this is Sec. 2(1), Article IX-D of the
1987 constitution which reads:

Sec. 2(1) The Commission on Audit shall have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust by, or pertaining to the Government, or
any of its subdivisions, agencies or instrumentalities, including government-owned or
controlled corporations with original charters, and on a post audit basis. (emphasis supplied)

Petitioners' main argument is that they are private corporations without original charter, hence they
are outside the jurisdiction of respondents CSC and COA. Reliance is made on the Metro Iloilo case
which declared petitioners as quasi-public corporations created by virtue of PD 198, a general
legislation which cannot be considered as the charter itself creating the water districts. Holding on to
this ruling, petitioners contend that they are private corporations which are only regarded as quasi-
public or semi-public because they serve public interest and convenience and that since PD 198 is a
general legislation, the operative act which created a water district is not the said decree but the
resolution of the sanggunian concerned.

After a fair consideration of the parties' arguments coupled with a careful study of the applicable laws
as well as the constitutional provisions involved, We rule against the petitioners and reiterate Our
ruling in Tanjay case declaring water districts government-owned or controlled corporations with
original charter.

As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20, 1984, 127 SCRA
730), We already ruled that a water district is a corporation created pursuant to a special law — P.D.
No. 198, as amended, and as such its officers and employees are covered by the Civil Service Law.

In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988, 165 SCRA
272), We ruled once again that local water districts are quasi-public corporations whose employees
belong to the Civil Service. The Court's pronoucement in this case, as extensively quoted in
the Tanjay case, supra, partly reads:

"The only question here is whether or not local water districts are governmkent owned or
controlled corporations whose employees are subject to the provisions of the Civil Service
Law. The Labor Arbiter asserted jurisdiction over the alleged illegal dismissal of private
respondent Villanueva by relying on Section 25 of Presidential decree No. 198, known as the
Provincial Water Utilities Act of 1973" which went onto effect in 25 May 1973, and which
provides as follows:

Exemption from Civil Service. — The district and its employees, being engaged in a
proprietary function, are hereby exempt from the provisions of the Civil Service Law.
Collective Bargaining shall be available only to personnel below supervisory
levels: Provided, however, That the total of all salaries, wages emoluments, benefits
or other compensation paid to all employees in any month shall not exceed fifty
percent (50%) of average net monthy revenue. Said net revenue representing
income from water sales and sewerage service charges, less pro-rata share of debt
service and expenses for fuel or energy for pumping during the preceding fiscal year.

The Labor Arbiter failed to take into accout the provisions of Presidential Decree No. 1479,
which went into effect on 11 June 1978, P.D. No. 1479, wiped away Section 25 of PD 198
quoted above, and Section 26 of PD 198 was renumbered as Section 25 in the following
manner:

Section 26 of the same decree PD 198 is hereby amended to read as Section 25 as follows:

Section 25. Authorization. — The district may exercise all the powers which are expressly
granted by this Title or which are necessarily implied from or incidental to the powers and
purposes herein stated. For the purpose of carrying out the objectives of this Act, a district is
hereby granted the power of eminent domain, the exercise thereof shall, however, be subject
to review by the Administration.

Thus, Section 25 of PD 198 exempting the employees of water districts from the application
of the Civil Service Law was removed from the statute books:

xxx xxx xxx

We grant the petition for the following reasons:

1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479; Section 26 of PD


No. 198 was amended ro read as Sec. 25 by Sec. 4 of PD No. 1479. The amendatory
decree took effect on June 11, 1978.

xxx xxx xxx

3. The BWD is a corporation created pursuant to a special law — PD No. 198, as amended.
As such its officers and employees are part of the Civil Service (Sec. 1, Art. XII-B, [1973]
Constitution; PD No. 868).

Ascertained from a consideration of the whole statute, PD 198 is a special law applicable only to the
different water districts created pursuant thereto. In all its essential terms, it is obvious that it pertains
to a special purpose which is intended to meet a particular set of conditions and cirmcumstances.
The fact that said decree generally applies to all water districts throughout the country does not
change the fact that PD 198 is a special law. Accordingly, this Court's resolution in Metro Iloilo case
declaring PD 198 as a general legislation is hereby abandoned.

By "government-owned or controlled corporation with original charter," We mean government owned


or controlled corporation created by a special law and not under the Corporation Code of the
Philippines. Thus, in the case of Lumanta v. NLRC (G.R. No. 82819, February 8, 1989, 170 SCRA
79, 82), We held:

The Court, in National Service Corporation (NASECO) v. National Labor Relations


Commission, G.R. No 69870, promulgated on 29 November 1988, quoting extensively from
the deliberations of 1986 Constitutional Commission in respect of the intent and meaning of
the new phrase "with original character," in effect held that government-owned and
controlled corporations with original charter refer to corporations chartered by special law as
distinguished from corporations organized under our general incorporation statute — the
Corporations Code. In NASECO, the company involved had been organized under the
general incorporation statute and was a sbusidiary of the National Investment Development
Corporation (NIDC) which in turn was a subsidiary of the Philippine National Bank, a bank
chartered by a special statute. Thus, government-owned or controlled corporations like
NASECO are effectively, excluded from the scope of the Civil Service. (emphasis supplied)

From the foregoing pronouncement, it is clear that what has been excluded from the coverage of the
CSC are those corporations created pursuant to the Corporation Code. Significantly, petitioners are
not created under the said code, but on the contrary, they were created pursuant to a special law
and are governed primarily by its provision.

No consideration may thus be given to petitioners' contention that the operative act which created
the water districts are the resolutions of the respective local sanggunians and that consequently, PD
198, as amended, cannot be considered as their charter.

It is to be noted that PD 198, as amended is the source of authorization and power to form and
maintain a district. Section 6 of said decree provides:

Sec. 6. Formation of District. — This Act is the source of authorization and power to form and
maintain a district. Once formed, a district is subject to the provisions of this Act and not
under the jurisdiction of any political subdivision, . . . .

Moreover, it must be observed that PD 198, contains all the essential terms necessary to constitute
a charter creating a juridical person. For example, Section 6(a) provides for the name that will be
used by a water district, thus:

Sec. 6. . . . To form a district, the legislative body of any city, municipality or province shall
enact a resolution containing the following:

a) The name of the local water district, which shall include the name of the city, municipality,
or province, or region thereof, served by said system, followed by the words "Water District."

It also prescribes for the numbers and qualifications of the members of the Board of Directors:

Sec. 8. Number and Qualification. — The Board of Directors of a district shall be composed
of five citizens of the Philippines who are of voting age and residents within the district. One
member shall be a representative of civic-oriented service clubs, one member of
representative of professional associations, one member a representative of business,
commercial or financial organizations, one member a representative of educational
institutions and one member a representative of women's organization. No public official
shall serve as director. Provided, however, that if the district has availed of the financial
assistance of the Administration, the Administration may appoint any of its personnel to sit in
the board of directors with all the rights and privileges appertaining to a regular member for
such period as the indebtedness remains unpaid in which case the board shall be composed
of six members; (as amended by PDs Nos. 768 and 1479).

the manner of their appointment and nominations;

Sec. 9. Appointment. — Board members shall be appointed by the appointing authority. Said
appointments shall be made from a list of nominees, if any, submitted pursuant to Section
10. If no nominations are submitted, the appointing authority shall appoint any qualified
person of the category to the vacant position;

Sec.10. Nominations. — On or before October 1 of each even numbered year, the secretary
of the district shall contact each known organization, association, or institution being
represented by the director whose term will expire on December 31 and solicit nominations
from these organizations to fill the position for the ensuing term. One nomination may be
submitted in writing by each such organization to the Secretary of the district on or before
November 1 of such year: This list of nominees shall be transmitted by the Secretary of the
district to the office of the appointing authority on or before November 15 of such year and he
shall make his appointment from the list submitted on or before December 15. In the event
the appointing authority fails to make his appointments on or before December 15, selection
shall be made from said list of nominees by majority vote of the seated directors of the
district constituting a quorum. Initial nominations for all five seats of the board shall be
solicited by the legislative body or bodies at the time of adoption of the resolution forming the
district. Thirty days thereafter, a list of nominees shall be submitted to the provincial governor
in the event the resolution forming the district is by a provincial board, or the mayor of the city
or municipality in the event the resolution forming the adoption of the district is by the city or
municipal board of councilors, who shall select the initial directors therefrom within 15 days
after receipt of such nominations;

their terms of office:

Sec. 11. Term of Office. — Of the five initial directors of each newly formed district, two shall
be appointed for a maximum term of two years, two for a maximum term of four years, and
one for a maximum term of six years. Terms of office of all directors in a given district shall
be such that the term of at least one director, but not more then two, shall expire on
December 31 of each even-numbered year. Regular terms of office after the initial terms
shall be for six years commencing on January 1 of odd-numbered years. Directors may be
removed for cause only, subject to review and approval of the Administration; (as amended
by PD 768).

the manner of filling up vacancies:

Sec. 12. Vacancies. — In the event of a vacancy in the board of directors occurring more
than six months before expiration of any director's term, the remaining directors shall within
30 days, serve notice to or request the secretary of the district for nominations and within 30
days, thereafter a list of nominees shall be submitted to the appointing authority for his
appointment of a replacement director from the list of nominees. In the absence of such
nominations, the appointing authority shall make such appointment. If within 30 days after
submission to him of a list of nominees the appointing authority fails to make an
appointment, the vacancy shall be filled from such list by a majority vote of the remaining
members of the Board of Directors constituting a quorum. Vacancies occurring within the last
six months of an unexpired term shall also be filled by the Board in the above manner. The
director thus appointed shall serve the unexpired term only; (as amended by PD 768).

and the compensation and personal liability of the members of the Board of Directors:

Sec. 13. Compensation. — Each director shall receive a per diem, to be determined by the
board, for each meeting of the board actually attended by him, but no director shag receive
per diems in any given month in excess of the equivalent of the total per diems of four
meetings in any given month. No director shall receive other compensation for services to
the district.

Any per diem in excess of P50.00 shall be subject to approval of the Administration (as
amended by PD 768).

Sec. 14. Personal Liability. — No director may be held to be personally liable for any action
of the district.

Noteworthy, the above quoted provisions of PD 198, as amended, are similar to those which are
actually contained in other corporate charters. The conclusion is inescapable that the said decree is
in truth and in fact the charter of the different water districts for it clearly defines the latter's primary
purpose and its basic organizational set-up. In other words, PD 198, as amended, is the very law
which gives a water district juridical personality. While it is true that a resolution of a local sanggunian
is still necessary for the final creation of a district, this Court is of the opinion that said resolution
cannot be considered as its charter, the same being intended only to implement the provisions of
said decree. In passing a resolution forming a water district, the local sanggunian is entrusted with
no authority or discretion to grant a charter for the creation of a private corporation. It is merely given
the authority for the formation of a water district, on a local option basis, to be exercised under and in
pursuance of PD 198.

More than the aforequoted provisions, what is of important interest in the case at bar is Section 3,
par. (b) of the same decree which reads:

Sec. 3(b). Appointing authority. — The person empowered to appoint the members of the
Board of Directors of a local water district, depending upon the geographic coverage and
population make-up of the particular district. In the event that more than seventy-five percent
of the total active water service connections of a local water districts are within the boundary
of any city or municipality, the appointing authority shall be the mayor of that city or
municipality, as the case may be; otherwise, the appointing authority shall be the governor of
the province within which the district is located: Provided, That if the existing waterworks
system in the city or municipality established as a water district under this Decree is operated
and managed by the province, initial appointment shall be extended by the governor of the
province. Subsequent appointments shall be as specified herein.

If portions of more than one province are included within the boundary of the district, and the
appointing authority is to be the governors then the power to appoint shall rotate between the
governors involved with the initial appointments made by the governor in whose province the
greatest number of service connections exists (as amended by PD 768).

The above-quoted section definitely sets to naught petitioners' contention that they are private
corporations. It is clear therefrom that the power to appoint the members who will comprise the
Board of Directors belongs to the local executives of the local subdivision units where such districts
are located. In contrast, the members of the Board of Directors or trustees of a private corporation
are elected from among the members and stockholders thereof. It would not be amiss to emphasize
at this point that a private corporation is created for the private purpose, benefit, aim and end of its
members or stockholders. Necessarily, said members or stockholders should be given a free hand to
choose those who will compose the governing body of their corporation. But this is not the case here
and this clearly indicates that petitioners are definitely not private corporations.

The foregoing disquisition notwithstanding, We are, however, not unaware of the serious
repercussion this may bring to the thousands of water districts' employees throughout the country
who stand to be affected because they do not have the necessary civil service eligibilities. As these
employees are equally protected by the constitutional guarantee to security of tenure, We find it
necessary to rule for the protection of such right which cannot be impaired by a subsequent ruling of
this Court. Thus, those employees who have already acquired their permanent employment status at
the time of the promulgation of this decision cannot be removed by the mere reason that they lack
the necessary civil service eligibilities.

ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared "government-owned or


controlled corporations with original charter" which fall under the jurisdiction of the public
respondents CSC and COA.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Griño-Aquino, Regalado and Davide,
Jr., JJ., concur.
Gutierrez, Jr., Feliciano and Sarmiento, JJ., are on leave.

Separate Opinions

BIDIN, J., dissenting:

I regret I have to register my dissent in this case. I agree with the main ponencia that P.D. 198, as
amended, authorizes the different local legislative bodies (Sanggunian) to form and create their
respective water districts through a Resolution which they will pass subject to the guidelines, rules
and regulations therein laid down. The issue, therefore, to be resolved is whether the local water
districts so created are government-owned or controlled corporations with original charters
embraced by the Civil Service as contemplated by Art. IX-B, Sec. 2[1] of the 1987 Constitution.

P.D. 198 is a general legislation which authorizes the formation of water districts. However, the
operative act which creates a water district is not said decree but the resolution of the Sanggunian
concerned forming and maintaining a local water district. Thus, Section 2 of P.D. 198, among others,
provides:

Sec. 2. Declaration of Policy — . . . To encourage the formulation of such local water districts
and the transfer thereto of existing water supply and waste water disposal facilities, this
Decree provides by general act the authority for the formation thereof, on a local option
basis. . . . (Emphasis supplied)

Implementing the above policy, Title II of P.D. 198 provides:

TITLE II. LOCAL WATER DISTRICT LAW


CHAPTER I. — Title
Sec. 4. Title. — The provisions of this Title shall be known and referred to as the
"Local Water District Law."

CHAPTER II. Purpose and Formation

Sec. 5. Purpose. — Local water districts may be formed pursuant to this Title for the
purposes of (a) acquiring, installing, improving, maintaining and operating water
supply and distribution systems for domestic, industrial, municipal and agricultural
uses for residents and lands within the boundaries of such districts, (b) providing,
maintaining and operating wastewater collection, treatment and disposal facilities,
and (c) conducting such other functions and operations incidental to water resource
development, utilization and disposal within such districts, as are necessary or
incidental to said purpose.

Sec. 6. Formation of District. — This Act is the source of authorization and power to
form and maintain a district. For purposes of this Act, a district shall be considered as
a quasi-public corporationperforming public service and supplying public wants. As
such, a district shall exercise the powers, rights and privileges given to private
corporations under existing laws, in addition to the powers granted in, and subject to
such restrictions imposed, under this Act.

xxx xxx xxx

Sec. 7. Filing of Resolution.— A certifted copy of the resolution or resolutions forming


a district shall be forwarded to the office of the Secretary of the Administration. If
found by the Administration to conform to the requirements of Section 6 and the
policy objectives in Section 2, the resolution shall be duly filed. The district shall be
deemed duly formed and existing upon the date of such filing. A certified copy of said
resolution showing the filing stamp of the Administration shall be maintained in the
office of the district. Upon such filing, the local government or governments
concerned shall lose ownership, supervision and control or any right whatsoever over
the district except as provided herein. (Emphasis supplied)

It is apparent that insofar as the formation of local water districts are concerned, P.D. 198 is
not an original charter but a general act authorizing the formation of water districts on local
option basis (Sec. 2, P.D. 198) similar to the Corporation Code. What is chartered, formed
and created under P.D. 198 as a government corporation is the "Local Water Utilities
Administration" attached to the Office of the President as follows:

Sec. 49. Charter. — There is hereby chartered, created and formed a government
corporation to be known as the "Local Water Utilities Administration which is hereby
attached to the Office of the President. The provisions of this title shall be and
constitute the charter of the Administration.

On the other hand, local water districts are formed by resolutions of the respective Provincial,
City and Municipal councils (Sec. 7, P.D. 198) filed with the Local Water Utilities
Administration, a government corporation chartered under Section 49, P.D. 198 and attached
to the Office of the President. Consequently, without the requisite resolution of the
Sanggunian concerned forming the water district having been filed with the Local Water
Utility Administration, no water district is formed. What gives the water districts juridical
personality is the resolution of the respective Sanggunian forming the district and filed with
the Local Water Utilities Administration. Once formed, a water district is subject to the
provisions of P.D. 198 and no longer under the jurisdiction of any political administration
which shall thereafter lose ownership, supervision and control over the district (Sec. 7, PD
198).

In view of the foregoing, I vote to Grant the petition and to declare petitioners as quasi-public
corporations performing public service without original charters and therefore not embraced
by the Civil Service.

[G.R. No. 122197. June 26, 1998]

ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON


AUDIT, respondent.

DECISION
MARTINEZ, J.:

This petition for certiorari seeks the reversal of the decision of the Commission on
Audit dated September 7, 1995,[1] the dispositive portion of which reads, to wit:

Foregoing premises considered, the instant appeal cannot be given due


course. Accordingly, the disallowance in question in the total amount
of P52,908.00 is hereby affirmed. Considering that the claim for the RATA
differential in the amount of P8,400.00 is devoid of any legal basis, the same
is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby directed
to refund the salary and RATA differential in the amount of P61,308.00 he had
received from the Provincial Government of Batangas.[2]

The undisputed facts:


On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position
of Supply Officer III, was designated Acting Assistant Provincial Treasurer for
Administration by then Governor Vicente A. Mayo of Batangas. Pursuant to the
designation, petitioner filed a claim for the difference in salary and Representation and
Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III
for the whole year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What
was allowed was only the amount of P8,400.00 which corresponds to the difference in
the allowances attached to the designation and the position occupied by the
appellant. The disallowance was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not
applicable in the instant case as the power to fill the position of Assistant
Provincial Treasurer rests on the Secretary of Finance.

2. The designation is temporary in nature and does not amount to the


issuance of an appointment as could entitle the designee to receive the salary
of the position to which he is designated (Opinion of the Director, Office for
Legal Affairs, Civil Service Commission dated January 25, 1994).

On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting


reconsideration of the subject disallowance, interposing the following reasons:

1. That Section 2077 of the Revised Administrative Code is applicable in the


instant case as the same provides that the Governor General or the officer
having the power to fill-up a temporary absence or disability in the provincial
office has the power to order or authorize payment of compensation to any
government officer or employee designated or appointed temporarily to fill the
place;

2. That the budget containing an appropriation for the position of Assistant


Provincial Treasurer for Administration was already approved by the Provincial
Board; and

3. That Mr. Dimaandal at the time of his designation as Acting Provincial


Treasurer for Administration was no longer performing the duties and
functions of Supply Officer III."

The Provincial Auditor, however, denied the request for reconsideration. Appellant
was required to refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the
stand of the Provincial Auditor of Batangas as valid and proper. The respondent
Commission was of the view that the petitioner was merely designated as an Assistant
Provincial Treasurer for Administration in addition to his regular duties. As such, he is
not entitled to receive an additional salary. The Commission further opined that
petitioner was likewise not entitled to receive the difference in RATA provided for under
the Local Budget Circular issued by the Department of Budget and Management
considering that the party designating him to such position is not the duly competent
authority, provided for under Section 471 of the Local Government Code. Notably,
petitioner was appointed as Assistant Provincial Treasurer for Administration by the
Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount
of P52,908.00 but likewise disallowed the claim for the RATA differential in the amount
of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to
refund the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting
capacity is entitled to the difference in salary between his regular position and the
higher position to which he is designated.
Petitioner avers that the respondent Commissions decision is probably not in
accordance with applicable decisions of the Supreme Court. [3] He cites the cases of Cui,
et. al. vs. Ortiz, et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20, 1991, [5] which
laid down the rule that de facto officers are entitled to salary for services actually
rendered. Petitioner contends that he may be considered as a de facto officer by reason
of services rendered in favor of the Province of Batangas. He then posits the view that
to disallow his compensation and in the process allow the Province of Batangas to keep
and enjoy the benefits derived from his services actually rendered would be tantamount
to deprivation of property without due process of law, and impairment of obligation of
contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor
General, maintains that the decisions cited by petitioner do not find application in
petitioners case. In the case of Menzon, what was extended was an appointment to the
vacant position of Vice-Governor. Here, what was extended to petitioner was not an
appointment but a mere designation. Thus, the nature of petitioners designation and in
the absence of authority of the Governor to authorize the payment of the additional
salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan
does not make the ruling on de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he could still claim the salary
and RATA differential because he actually performed the functions pertaining to the
office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary and
benefits attached to it despite the fact that the Governor of Batangas had no authority to
designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local
Government Code which mandates that:

Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed


by the Secretary of Finance from a list of at least three (3) ranking eligible
recommendees of the governor or mayor, subject to civil service law, rules
and regulations.

xxxxxxxxx
In fact, the appointing officer is authorized by law to order the payment of
compensation to any government officer or employee designated or appointed to fill
such vacant position, as provided under Section 2077 of the Revised Administrative
Code which states that:

"Section 2077. Compensation for person appointed to temporary service.

xxxxxxxxx

In case of the temporary absence or disability of a provincial officer or in case


of a vacancy in a provincial office, the President of the Philippines or officer
having the power to fill such position may, in his discretion, order the payment
of compensation, or additional compensation, to any Government officer or
employee designated or appointed temporarily to fill the place, but the total
compensation paid shall not exceed the salary authorized by law for the
position filled.

Undoubtedly, the aforecited laws do not authorize the Provincial Governor to


appoint nor even designate one temporarily in cases of temporary absence or disability
or a vacancy in a provincial office. That power resides in the President of the Philippines
or the Secretary of Finance.
Necessarily, petitioners designation as Assistant Provincial Treasurer for
Administration by Governor Mayo being defective, confers no right on the part of
petitioner to claim the difference in the salaries and allowances attached to the position
occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a
designation not an appointment. The respondent Commission clearly pointed out the
difference between an appointment and designation, thus:

There is a great difference between an appointment and designation. While


an appointment is the selection by the proper authority of an individual who is
to exercise the powers and functions of a given office, designation merely
connotes an imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier appointment (Santiago vs.
COA, 199 SCRA 125).

Designation is simply the mere imposition of new or additional duties on the officer or
employee to be performed by him in a special manner. It does not entail payment of
additional benefits or grant upon the person so designated the right to claim the salary
attached to the position (COA Decision No. 95-087 dated February 2, 1995). As such,
there being no appointment issued, designation does not entitle the officer designated
to receive the salary of the position. For the legal basis of an employees right to claim
the salary attached thereto is a duly issued and approved appointment to the position
(Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service
Commission, Re: Evora, Carlos, A. Jr., Designation).[6]
This Court has time and again ruled that:

Although technically not binding and controlling on the courts, the construction
given by the agency or entity charged with the enforcement of a statute should
be given great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so
if such construction, as in the case at bar, has been uniform, and consistent,
and has been observed and acted on for a long period of time (Molina vs.
Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar
Central vs. Collector of Customs, 51 Phil. 143).[7]

We see no justifiable reason to sustain petitioners argument that non-payment of


his salary differential and RATA would be a violation of his constitutional right against
deprivation of property without due process of law and the non-impairment of obligation
of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the
assumption that the appointment or designation thereof was made in accordance with
law. Considering that petitioners designation was without color of authority, the right to
the salary or an allowance due from said office never existed. Stated differently, in the
absence of such right, there can be no violation of any constitutional right nor an
impairment of the obligation of contracts clause under the Constitution.
The nature of petitioners designation and the absence of authority of the Governor
to authorize the payment of the additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and whose
appointment is valid on its face. It is likewise defined as one who is in possession of an
office, and is discharging its duties under color of authority, by which is meant authority
derived from an appointment, however irregular or informal, so that the incumbent be
not a mere volunteer.[8] Then a de facto officer is one who is in possession of an office in
the open exercise of its functions under color of an election or an appointment, even
though such election or appointment may be irregular. [9]
Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto
officer is entitled to receive the salary for services actually rendered. However, his
reliance on the Menzon case is misplaced. In Menzon, what was extended was an
appointment to the vacant position of Vice-Governor, in petitioners case, he was
designated. The appointment of Menzon had the color of validity. This Court said:

And finally, even granting that the President, acting through the Secretary of
Local Government, possesses no power to appoint the petitioner, at the very
least, the petitioner is a de facto officer entitled to compensation.There is no
denying that the petitioner assumed the Office of the Vice-Governor under a
color of a known appointment. As revealed by the records, the petitioner was
appointed by no less than the alter ego of the President, The Secretary of
Local Government, after which he took his oath of office before Senator
Alberto Romulo in the Office of Department of Local Government Regional
Director Res Salvatierra. Concededly, the appointment has the color of
validity.

Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al. [11] does not apply in petitioners
case. In Cui, this Court held:

Petitioners appointments on December 1 and 12, 1955 by the then mayor of


the municipality were legal and in order, the appointing mayor still in
possession of his right to appoint. For such appointments to be complete, the
approval of the President of the Philippines is required. The law provides that
pending approval of said appointment by the President, the appointee may
assume office and receive salary for services actually rendered.Accordingly,
therefore, in that duration until the appointment is finally acted upon favorably
or unfavorably, the appointees may be considered as de facto officers and
entitled to salaries for services actually rendered.

Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is


dated July 8, 1994. Petitioners claim that the appointment retro-acts to his assumption
of office is not confirmed by the express phraseology of the appointment itself, which
states:

Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR


ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE
PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED
TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00)
P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di
aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.[12]

The subsequent appointment of petitioner to the position on July 8, 1994, cannot


justify petitioners retention of the excess amount of P61,308.00, which corresponds to
the amount disallowed and ordered refunded by COA representing the salary and
RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of
merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.

G.R. No. 167472 January 31, 2007


CIVIL SERVICE COMMISSION, Petitioner,
vs.
ENGR. ALI P. DARANGINA, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated
October 7, 20041 and March 18, 20052 in CA-G.R. SP No. 71353.

The undisputed facts are:

Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of
Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional
appointment as director III, Plans and Policy Services, in the same office. On October 11, 2000, the
Civil Service Commission (CSC), petitioner, approved this temporary appointment effective for one
(1) year from the date of its issuance unless sooner terminated.

On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the
temporary appointment of respondent on the ground that he is not a career executive service
eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive
service eligible. Thus, the CSC disapproved his appointment, stating that respondent could only be
replaced by an eligible.

On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18, 2001
sustaining the termination of his temporary appointment but ordering the payment of his salaries
from the time he was appointed on September 25, 2000 until his separation on October 31, 2000.

Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No.
02-439 granting the same with modification in the sense that respondent should be paid his
backwages from the time his employment was terminated on October 11, 2000 until September 24,
2001, the expiration of his one year temporary appointment.

On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement
as director III and payment of backwages up to the time he shall be reinstated.

On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondent’s motion for partial
reconsideration being a second motion for reconsideration which is prohibited.

Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No.
71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure to
implead the OMA Executive Director and the incumbent of the disputed position.

Respondent filed a motion for reconsideration.

In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February
27, 2004, thus:
ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the assailed CSC
resolutions are hereby MODIFIED in that the petitioner is reinstated to his post to finish his 12-
month term with backwages from the date of his removal until reinstatement.

SO ORDERED.

The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution
dated March 28, 2005.

Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended,
classifying the appointment status of public officers and employees in the career service, reads:

SEC. 27. Employment Status. – Appointment in the career service shall be permanent or temporary.

(1) Permanent status. A permanent appointment shall be issued to a person who meets all
the requirements for the position to which he is being appointed, including appropriate
eligibility prescribed, in accordance with the provisions of law, rules and standards
promulgated in pursuance thereof.

(2) Temporary appointment. In the absence of appropriate eligibles and it becomes


necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to
a person who meets all the requirements for the position to which he is being appointed
except the appropriate civil service eligibility: Provided, That such temporary appointment
shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil
service eligible becomes available.

It is clear that a permanent appointment can issue only to a person who possesses all the
requirements for the position to which he is being appointed, including the appropriate
eligibility.3 Differently stated, as a rule, no person may be appointed to a public office unless he or
she possesses the requisite qualifications. The exception to the rule is where, in the absence of
appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a
temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary
appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to
discharge the same pending the selection of a permanent appointee. 4 In Cuadra v. Cordova,5 this
Court defined a temporary appointment as "one made in an acting capacity, the essence of which
lies in its temporary character and its terminability at pleasure by the appointing power." Thus, the
temporary appointee accepts the position with the condition that he shall surrender the office when
called upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I,
Book V of the same Code, the term of a temporary appointment shall be 12 months, unless sooner
terminated by the appointing authority. Such pre-termination of a temporary appointment may be
with or without cause as the appointee serves merely at the pleasure of the appointing power. 6

Under the Revised Qualifications Standards prescribed by the CSC, career executive service
eligibility is a necessary qualification for the position of director III in Plans and Policy Services,
OMA. It is not disputed that on September 25, 2000, when respondent was extended an
appointment, he was not eligible to the position, not being a holder of such eligibility. Hence, his
appointment was properly designated as "temporary." Then on October 31, 2000, newly-appointed
OMA Executive Director Tomawis recalled respondent’s temporary appointment and replaced him by
appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A
game of musical chairs then followed. Sani was subsequently replaced by Tapa Umal, who in turn,
was succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees
were also disqualified for lack of the required eligibility.
The Court of Appeals ruled that such replacements are not valid as the persons who replaced
respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to
serve the remaining term of his 12-month term with salaries.

This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by
another non-eligible is not prohibited. 7

Moreover, in Achacoso8 cited earlier, this Court held that when a temporary appointee is required to
relinquish his office, he is being separated precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon
his replacement, there is no longer any remaining term to be served. Consequently, he can no
longer be reinstated.

As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary
during the entire twelve-month period in spite of the fact that he served only from September 25,
2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the
Court of Appeals. Considering that respondent’s employment was validly terminated on October 31,
2000, he is ordered to refund the salaries he received from that date up to September 24, 2001.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING ANTONIO T. CARPIO


Associate Justice Asscociate Justice

RENATO C. CORONA ROMEO J. CALLEJO, SR.


Associate Justice Asscociate Justice

MINITA CHICO-NAZARIO CANCIO C. GARCIA


Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA


Associate Justice Asscociate Justice

DANTE O. TINGA PRESBITERO J. VELASCO


Associate Justice Asscociate Justice

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

REYNATO S. PUNO
Chief Justice

CIVIL SERVICE G.R. NO. 183337


COMMISSION,
Petitioner, Present:
PUNO, CJ.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
- versus - BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
Promulgated:
GREGORIO MAGNAYE, JR.,
Respondent. April 23, 2010
X ------------------------------------------------------------------------------------- X

DECISION
MENDOZA, J.:
The Civil Service Commission (CSC) assails in this petition for review on
certiorari,[1] the February 20, 2008 Decision[2] and the June 11, 2008 resolution of
the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA reversed the July 20,
2004 Decision of the Civil Service Commission Regional Office No. IV (CSCRO-
IV) and ordered the reinstatement of respondent Gregorio Magnaye,
Jr. (Magnaye) with payment of backwages and other monetary benefits.

THE FACTS

In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed


Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of
Market] (OEE). After a few days, Mayor Rosales detailed him to the Municipal
Planning and Development Office.

In the May elections of that year, Mayor Rosales was defeated by Raul L.
Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned
to his original assignment at the OEE. On July 11, 2001, Bendaa also placed him
on detail at the Municipal Planning and Development Office to assist in the
implementation of a Survey on the Integrated Rural Accessibility Planning Project.
On August 13, 2001, the new mayor served him a notice of termination from
employment effective the following day for unsatisfactory conduct and want of
capacity.

Magnaye questioned his termination before the CSC head office on the
ground that Mayor Bendaa was not in a position to effectively evaluate his
performance because it was made less than one and one-half months after his
(Mayor Bendaas) assumption to office. He added that his termination was without
basis and was politically motivated.

The CSC head office dismissed, without prejudice, Magnayes complaint


because he failed to attach a certificate of non-forum shopping. Thereafter,
Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-
IV).

The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld


his dismissal from the service on the ground that Mayor Bendaas own assessment,
together with the evaluation made by his supervisors, constituted sufficient and
reasonable grounds for his termination.

Magnaye sought recourse through a petition for review with the Court of
Appeals, citing CSCRO-IVs alleged errors of fact and of law, non-observance of
due process, and grave abuse of discretion amounting to lack or excess of
jurisdiction. Adopting the stance of the Office of the Solicitor General, the CA
ruled in Magnayes favor, mainly on the ground that he was denied due process
since he was not informed of what constituted the alleged unsatisfactory conduct
and want of capacity that led to his termination. It summarized the positions of the
OSG as follows:

On January 18, 2005, the Office of the Solicitor General (OSG)


filed its manifestation and motion, in lieu of comment, praying that the
assailed decision be set aside. The OSG argued that Petitioners termination
was illegal. The notice of termination did not cite the specific instances
indicating Petitioners alleged unsatisfactory conduct or want of
capacity. It was only on July 29, 2003, or almost two years after
Petitioners dismissal on August 13, 2001 that his former Department
Heads, Engr. Magsino and Engr. Masongsong, submitted an assessment
and evaluation report to Mayor Bendaa, which the latter belatedly
solicited when the Petitioner appealed to the CSC Regional Office. Hence,
the circumstances behind Petitioners dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level
that Petitioner was informed of his alleged poor performance. There was
no evidence that Petitioner was furnished copies of 1) Mayor Bendaas
letter, dated July 29, 2003, addressed to CSC Regional Office praying that
Petitioners termination be sustained; and 2) the performance evaluation
report, dated July 29, 2003, prepared by Engr. Magsino and Engr.
Masongsong. The OSG claimed that Petitioner was denied due
process because his dismissal took effect a day after he received the notice
of termination. No hearing was conducted to give Petitioner the
opportunity to refute the alleged causes of his dismissal. The OSG agreed
with Petitioners claim that there was insufficient time for Mayor Bendaa
to determine his fitness or unfitness for the position. [3] [Emphasis
supplied]

Thus, the fallo of the CA Decision[4] reads:

WHEREFORE, the petition is Granted. The Civil Service


Commission Regional Office No. 4s Decision, dated July 20, 2004 is
hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATED
with full payment of backwages and other monetary benefits. This case is
hereby REMANDED to the Civil Service Commission for reception of such
evidence necessary for purposes of determining the amount of backwages
and other monetary benefits to which Petitioner is entitled.

SO ORDERED.

THE ISSUES

In this petition, the Civil Service Commission submits the following for our
consideration:

I. The dropping of respondent from the rolls of the local


government unit of Lemery, Batangas was in accord with Civil Service
Law, rules and jurisprudence.
II. The respondent resorted to a wrong mode of appeal and violated
the rule on exhaustion of administrative remedies and the corollary
doctrine of primary jurisdiction.

The principal issue, therefore, is whether or not the termination of Magnaye


was in accordance with the pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

THE COURTS RULING

The Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnayes termination was in accord with the Civil
Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on
Appointments and Other Personnel Actions which provides that:

Sec. 4. Nature of appointment. The nature of appointment shall be


as follows:

a. Original refers to the initial entry into the career service of


persons who meet all the requirements of the position. xxx

It is understood that the first six months of the service following an


original appointment will be probationary in nature and the appointee
shall undergo a thorough character investigation. A probationer may be
dropped from the service for unsatisfactory conduct or want of capacity
anytime before the expiration of the probationary period. Provided that
such action is appealable to the Commission.

However, if no notice of termination for unsatisfactory conduct is


given by the appointing authority to the employee before the expiration of
the six-month probationary period, the appointment automatically
becomes permanent.
Under Civil Service rules, the first six months of service following a
permanent appointment shall be probationary in nature, and the probationer may be
dropped from the service for unsatisfactory conduct or want of capacity anytime
before the expiration of the probationary period. [5]

The CSC is of the position that a civil service employee does not enjoy
security of tenure during his 6-month probationary period. It submits that an
employees security of tenure starts only after the probationary period. Specifically,
it argued that an appointee under an original appointment cannot lawfully invoke
right to security of tenure until after the expiration of such period and provided that
the appointee has not been notified of the termination of service or found
unsatisfactory conduct before the expiration of the same.[6]

The CSC position is contrary to the Constitution and the Civil Service Law
itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all
workers not just in terms of self-organization, collective bargaining,
peaceful concerted activities, the right to strike with qualifications, humane
conditions of work and a living wage but also to security of tenure, and Section
2(3), Article IX-B is emphatic in saying that, "no officer or employee of the civil
service shall be removed or suspended except for cause as provided by law."

Consistently, Section 46 (a) of the Civil Service Law provides that no


officer or employee in the Civil Service shall be suspended or dismissed except
for cause as provided by law after due process.

Our Constitution, in using the expressions all workers and no officer or


employee, puts no distinction between a probationary and a permanent or regular
employee which means that both probationary and permanent employees enjoy
security of tenure. Probationary employees enjoy security of tenure in the sense
that during their probationary employment, they cannot be dismissed except for
cause or for failure to qualify as regular employees. This was clearly stressed in the
case of Land Bank of the Philippines v. Rowena Paden,[7] where it was written:

To put the case in its proper perspective, we begin with a discussion


on the respondent's right to security of tenure. Article IX (B), Section
2(3) of the 1987 Constitution expressly provides that

"[n]o officer or employee of the civil service shall be removed or suspended


except for cause provided by law." At the outset, we emphasize that the
aforementioned constitutional provision does not
distinguish between a regular employee and a probationary
employee. In the recent case of Daza v. Lugo[8] we ruled that:

The Constitution provides that "[N]o officer or


employee of the civil service shall be removed or suspended
except for cause provided by law." Sec. 26, par. 1, Chapter 5,
Book V, Title I-A of the Revised Administrative Code of 1987
states:

All such persons (appointees who meet all the


requirements of the position) must serve a probationary
period of six months following their original appointment
and shall undergo a thorough character investigation in
order to acquire permanent civil service status. A probationer
may be dropped from the service for unsatisfactory conduct
or want of capacity any time before the expiration of the
probationary period; Provided, That such action is
appealable to the Commission.

Thus, the services of respondent as a probationary


employee may only be terminated for a just cause, that
is, unsatisfactory conduct or want of capacity. [Emphasis
supplied]

x x x.
X x x the only difference between regular and probationary
employees from the perspective of due process is that the latter's
termination can be based on the wider ground of failure to comply with
standards made known to them when they became probationary
employees.

The constitutional and statutory guarantee of security of tenure is extended


to both those in the career and non-career service positions, and the cause under
which an employee may be removed or suspended must naturally have some
relation to the character or fitness of the officer or employee, for the discharge of
the functions of his office, or expiration of the project for which the employment
was extended. [9] Further, well-entrenched is the rule on security of tenure that such
an appointment is issued and the moment the appointee assumes a position in the
civil service under a completed appointment, he acquires a legal, not merely
equitable right (to the position), which is protected not only by statute, but also by
the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away
from him either by revocation of the appointment, or by removal, except for cause,
and with previous notice and hearing.[10]

While the CSC contends that a probationary employee does not enjoy
security of tenure, its Omnibus Rules recognizes that such an employee cannot be
terminated except for cause. Note that in the Omnibus Rules it cited,[11] a decision
or order dropping a probationer from the service for unsatisfactory conduct or want
of capacity anytime before the expiration of the probationary period is
appealable to the Commission. This can only mean that a probationary
employee cannot be fired at will.
Notably, jurisprudence has it that the right to security of tenure is unavailing
in certain instances. In Orcullo Jr. v. Civil Service Commission,[12] it was ruled that
the right is not available to those employees whose appointments are contractual
and co-terminous in nature. Such employment is characterized by a tenure which is
limited to a period specified by law, or that which is coterminous with the
appointing authority or subject to his pleasure, or which is limited to the duration
of a particular project for which purpose employment was made. [13] In Amores
M.D. v. Civil Service Commission,[14] it was held that a civil executive service
appointee who meets all the requirements for the position, except only the
appropriate civil service eligibility, holds the office in a temporary capacity and is,
thus, not entitled to a security of tenure enjoyed by permanent appointees.

Clearly, Magnayes appointment is entirely different from those


situations. From the records, his appointment was never classified as co-terminous
or contractual. Neither was his eligibility as a Utility Worker I challenged by
anyone.

In support of its position that an appointee cannot lawfully invoke the right
to a security of tenure during the probationary period, petitioner CSC banked on
the case of Lucero v. Court of Appeals and Philippine National Bank. [15] This case
is, however, not applicable because it refers to a private entity where the rules of
employment are not exactly similar to those in the government service.

Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory


conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the Revised
Administrative Code of 1987 states:

(1) Appointment through certification.An appointment through


certification to a position in the civil service, except as herein otherwise
provided, shall be issued to a person who has been selected from a list of
qualified persons certified by the Commission from an appropriate
register of eligibles, and who meets all the other requirements of the
position.

All such persons must serve a probationary period of six months


following their original appointment and shall undergo a thorough
character investigation in order to acquire permanent civil service status.
A probationer may be dropped from the service for unsatisfactory
conduct or want of capacity any time before the expiration of the
probationary period: Provided, That such action is appealable to the
Commission.

While unsatisfactory conduct and want of capacity are valid causes that may
be invoked for dismissal from the service, [16] the CA observed that the
Memorandum issued by Mayor Bendaa terminating Magnayes employment did not
specify the acts constituting his want of capacity and unsatisfactory conduct. It
merely stated that the character investigation conducted during his probationary
period showed that his employment need not be necessary to be permanent in
status.[17] Specifically, the notice of termination partly reads:

You are hereby notified that your service as Utility Worker I, this
municipality under six (6) month probationary period, is considered
terminated for unsatisfactory conduct or want of capacity, effectiveAugust
14, 2001.

You are further notified that after a thorough character


investigation made during your such probationary period under my
administration, your appointment for employment need not be necessary
to be automatically permanent in status.[18]

This notice indisputably lacks the details of Magnayes unsatisfactory


conduct or want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on
Appointments and other Personnel Actions (CSC Memorandum Circular No. 38,
Series of 1993, as amended by CSC Memorandum Circular No. 12, Series of
1994), provides:

2.2. Unsatisfactory or Poor Performance

xxx
b. An official who, for one evaluation period, is rated poor in
performance, may be dropped from the rolls after due notice. Due notice
shall mean that the officer or employee is informed in writing of the status
of his performance not later than the fourth month of that rating period
with sufficient warning that failure to improve his performance within the
remaining period of the semester shall warrant his separation from the
service. Such notice shall also contain sufficient information which shall
enable the employee to prepare an explanation. [Emphasis and
underscoring supplied]

Magnaye asserts that no performance evaluation was made between March


2001 when he was hired by Mayor Rosales until August 14, 2001 when his
services were terminated by Mayor Bendaa. [19] It was only on July 29, 2003, at
Mayor Bendaas behest, that his two supervisors prepared and submitted the
evaluation report after the CSCRO-IV directed him to file an answer to Magnayes
appeal.[20]

This has not been rebutted. It being not disputed, it was an error on the part
of the CSCRO-IV to rely on such belated performance appraisal. Common sense
dictates that the evaluation report, submitted only in 2003, could not have been the
basis for Magnayes termination.

Besides, Mayor Bendaas own assessment of Magnayes performance could


not have served as a sufficient basis to dismiss him because said mayor was not his
immediate superior and did not have daily contacts with him. Additionally, Mayor
Bendaa terminated his employment less than one and one-half months after his
assumption to office. This is clearly a short period within which to assess his
performance. In the case of Miranda v. Carreon,[21] it was stated:

The 1987 Constitution provides that no officer or employee of the


civil service shall be removed or suspended except for cause provided by
law. Under the Revised Administrative Code of 1987, a
government officer or employee may be removed from the service

on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity.
While the Code does not define and delineate the concepts of these two
grounds, however, the Civil Service Law (Presidential Decree No. 807, as
amended) provides specific grounds for dismissing a government officer or
employee from the service. Among these grounds are inefficiency and
incompetence in the performance of official duties. In the case at bar,
respondents were dismissed on the ground of poor performance. Poor
performance falls within the concept of inefficiency and incompetence in
the performance of official duties which, as earlier mentioned, are grounds
for dismissing a government official or employee from the service.

But inefficiency or incompetence can only be determined after the


passage of sufficient time, hence, the probationary period of six (6) months
for the respondents. Indeed, to be able to gauge whether a subordinate is
inefficient or incompetent requires enough time on the part of his immediate
superior within which to observe his performance. This condition, however,
was not observed in this case. x x x.[Emphasis and underscoring supplied]

The CSC is the central personnel agency of the government exercising


quasi-judicial functions.[22] In cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is supported by substantial evidence,
or that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.[23] The standard of substantial evidence is satisfied
when, on the basis of the evidence on record, there is reasonable ground to believe
that the person terminated was evidently wanting in capacity and had
unsatisfactory conduct. In this case, the evidence against Magnaye was woefully
inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman


Patricia Sto. Tomas[24] that the prohibition in Article IX (B) (2) (3) of the
Constitution against dismissal of a civil service officer or employee "except for
cause provided by law" is a guaranty of both procedural and substantive due
process. Procedural due process requires that the dismissal comes only after notice
and hearing,[25]while substantive due process requires that the dismissal be for
cause.[26]
Magnaye was denied procedural due process when he received his notice of
termination only a day before he was dismissed from the service. Evidently, he was
effectively deprived of the opportunity to defend himself from the charge that he
lacked the capacity to do his work and that his conduct was unsatisfactory. As well,
during his appeal to the CSCRO-IV, he was not furnished with the submissions of
Mayor Bendaa that he could have opposed. He was also denied substantive due
process because he was dismissed from the service without a valid cause for lack
of any factual or legal basis for his want of capacity and unsatisfactory conduct.

Thus, we reject petitioners argument that the CA erred when it acted upon
the erroneous remedy availed of by respondent when he filed a petition for review
considering that the assailed decision is not in the nature of awards, judgments,
final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions as prescribed under Rule 43 of the Rules of
Court. While Sections 71 and 72 of Rule V
(B) of the Uniform Rules on Administrative Cases in the Civil

Service [27] provide for the remedy of an appeal from decisions of its regional
offices to the Commission proper, Magnayes petition to the CA comes under the
exceptions to the doctrine of exhaustion of administrative remedies. The CA
correctly cited Republic v. Lacap,[28] where a violation of due process is listed to be
among the noted exceptions to the rule. As discussed above, Magnayes dismissal
was tainted with irregularity because the notice given to him comes short of the
notice contemplated by law and jurisprudence. The CA correctly exercised
jurisdiction over this case where standards of due process had been patently
breached.

Having been illegally dismissed, Magnaye should be reinstated to his former


position without loss of seniority and paid backwages and other monetary benefits
from the time of his dismissal up to the time of his reinstatement. In our decision
in Civil Service Commission v. Gentallan,[29] we ruled that for reasons of justice
and fairness, an illegally dismissed government employee who is later ordered
reinstated is entitled to backwages and other monetary benefits from the time of his
illegal dismissal until his reinstatement because he is considered as not having left
his office.

WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of


the Court of Appeals and its June 11, 2008 Resolution denying the motion for
reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.
SO ORDERED.
JEROME JAPSON, G.R. No. 189479
Petitioner,
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
- versus - PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:
CIVIL SERVICE COMMISSION,
Respondent. April 12, 2011

x-----------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the Decision [1] dated June 8, 2009 and the
Resolution[2] dated September 9, 2009 of the Court of Appeals (CA) in CA-G.R. SP
No. 104865. The CA affirmed the resolutions of the Civil Service Commission
(CSC), finding petitioner Jerome Japson (Japson), former Senior Member Services
Representative assigned at the Social Security System (SSS) office in Baguio City
(SSS Baguio City), guilty of Dishonesty, Grave Misconduct, and Conduct
Prejudicial to the Best Interest of the Service, and imposing on him the penalty of
dismissal.[3]

The antecedent facts, as found by the CSC and adopted by the CA, are as
follows:

Records show that Japson became the subject of a series of


inquiries conducted by the SSS linking him to a profiting venture
involving the processing of claims for SSS death and funeral benefits
while he was assigned at SSS Baguio City from 1997 to May 1998. The
inquiry was spurred by an affidavit dated October 6, 1999 of Mina
Balanag, who happened to assist her illiterate mother, Cat-an Paanos, in
claiming, as beneficiary, the SSS death benefits of her deceased father,
Kitos Paanos. She alleged that because she knew nothing of the steps for
processing of claims for death benefits, a village mate referred her to
spouses Boyet and Shirley Abuan [(Spouses Abuan)] who have been
frequenting their village. The [S]pouses Abuans (sic) assured that her
mother will receive the benefits in due time since Shirley has a relative
working at the SSS Baguio City who also happened to be their neighbor
at (sic) Baguio City. Later, she learned that this neighbor-relative turned
out (sic) to be Shirleys cousin Japson.

In exchange for their help, the [S]pouses Abuan demanded a share


equivalent to 10% of the SSS death benefits that will be awarded to
Balanags mother. She reposed her full trust on the Spouses Abuan that
even her mothers address in the claim form reflected that of the Spouses
Abuans home at P-2-36 Gabriela Silang Brgy., Baguio City, although her
mother really lives in Bila, Bokod, Benguet. After the claim was
approved, the SSS issued a check in the amount of Php183,472.72. After
it was cashed (sic), the spouses Abuan allegedly received more than what
was originally agreed (sic) since aside from the P[hp]15,000.00
corresponding to their commission, they demanded Php83,000.00 more,
purportedly the asking fee of Japson and a certain Atty. Reynaldo
Rodeza, who were instrumental for the release of the benefits.
Reluctantly, they gave the amount for fear that the benefits awarded
them might be withdrawn. An affidavit dated January 26, 2000[ ] was
executed by Balanags mother, Cat-an Paanos, to corroborate her
allegations.

On the other hand, in his affidavit dated January 27, 2000, as well
as in his testimony relative thereto, Erano F. Gaspar (Ireneo in the
Transcript of his Testimony taken on June 6, 2000 before the SSS)
alleged that he came to know Japson through Shirley Abuan after she
convinced him to transfer his claim for his fathers death benefits then
pending at SSS Solano, Nueva Vizcaya, to SSS Baguio City, intimating
that Japson, who is her cousin, could guarantee its prompt release since
he was assigned at the claims section there. A meeting with Japson was
then arranged by Shirley after which she filed the claim on October 10,
1997. Sometime on (sic) November 1997, Japson informed Gaspar by
telephone that a check in an amount of Php74,000.00 was already issued
to him. On the same day, he went to Baguio City, where, accompanied
by Japson, he retrieved (sic) the check at the Baguio Post Office. After
opening an account at PNP (sic) Baguio and withdrawing a sum, Japson
informed him that a machine error in the computation of his benefits
resulted in an overpayment as he was supposed to receive Php54,000.00.
Gaspar handed over the excess P[hp]20,000.00, which Japson promised
to deliver personally to SSS Baguio City. In addition, he paid Japson
Php2,000.00 for the assistance he (sic) rendered.

In response to the above complaints, the SSS conducted a series of


investigation (sic) on the official transactions of Japson and uncovered
details that raised its suspicion. First, the address of claimants to the
death benefits of deceased SSS members Kitos Paanos, Warlito Costales
and Adriano Castillo as well as the pension form of SSS retiree Jovita
Resquer bore a common address: P-2-35 Gabriela Silang Brgy., Baguio
City[,] which is the address of Japson. They found out, too, that Japson
signed and acknowledged the receipt of checks which were issued to the
beneficiaries of Paanos and Castillo. It was further disclosed that Japson
committed lapses in procedure, namely, his failure to stamp received on
the claim of funeral benefits of Costales; his having attested to the fact of
death of Kitos Paanos even though he has no personal knowledge of the
same and with apparent conflict of interest due to his assignment at the
claims section; and the discovery that by (sic) as late as February 2000,
he has yet to mail a check issued by the SSS way back on (sic)
December 24, 1999. The investigators received reports, too, that he took
P[hp]17,000.00 from the benefits awarded to one Minda Balucas.

Upon the recommendation of the investigating unit which found


prima facie case to support the complaints, the SSS, through Carlos A.
Arellano, then Chairman, President and Chief Executive Officer (CEO),
formally charged Japson with Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service and placed him
under preventive suspension of ninety (90) days. After the parties
submitted their respective pleadings, the formal hearings were held on
June 6 and 7, 2000 and November 9, 2000, where Japson testified for his
defense.

In his testimony which amplified his Counter-Affidavit/Answer to


the Formal Charge, Japson who assisted claimants for death, disability
and retirement claims when he was first assigned to the (sic) SSS
Bangued[,] refuted the allegation that he took a hefty share from death
and funeral benefits awarded to beneficiaries of SSS members referred to
him by the [S]pouses Abuan or that he worked in concert with [S]pouses
Abuan to profit from the claimants. First, in response to the allegation of
Erano P. Gaspar, he recalled that his cousin, Shirley Abuan, who also
happened to be his neighbor, told him that Gaspar was having difficulty
in claiming the SSS benefits of his father when he filed his claim at SSS
Solano branch in Nueva Vizcaya. Assessing that some documents
required by [the] SSS Solano Branch are not necessary, he brought the
papers instead to SSS Baguio City in order to speed up the processing of
Gaspars claim. Eventually, a check in the amount of Php74,000.00 was
issued by the SSS after which he accompanied Gaspar to claim the check
at the Baguio City Post Office. After Gaspar cashed (sic) the check,
Japson told him matter-of-factly that due to machine error, the SSS
overpaid him by Php20,000.00, producing a copy of the encoding sheet
prepared by the Benefits Section which showed the correct computation.
Gaspar gave him the excess amount for him to turn over to the SSS.
Afterwards, they retired to Japsons house at Brgy. Gabriela
Silang, Baguio City where they had a few rounds of drinks as it was his
cousins birthday. Gaspar insisted on giving him Php2,000.00 but he
refused, saying that he does not expect any payment for his help more so
as they are brothers of faith as both belong to Iglesia ni Cristo. Instead,
Gaspar just spent the sum to buy food for their drinks. As to the
Php20,000.00, Japson produced a (sic) SSS Special bank receipt dated
February 16, 2000 as proof of remittance by Gaspar of the
P[hp]20,000.00 excess amount and a Miscellaneous Payment Return
Form bearing an identical date to show that Japson turned over the
amount intact to the SSS.

With respect to the allegation that a number of applications for


benefits suspiciously bore his address even though the applicants were
not from Baguio City but in (sic) outlying provinces with SSS branches
of their own, he explained that the [S]pouses Abuan, who were
authorized by the claimants to file their application[s] and to follow-up
their claims, might have placed the wrong information since they almost
have an identical address (sic). He did not notice the error since he was
accustomed to his old address which he wrote as Lower
Hillside, Kennon Road, Baguio City. As to the case of Resquer, he
pointed out that their address in the application clearly showed P-2-45
Brgy. Gabriela Silang and not P-2-35 as claimed in the investigation
report. He also denied that he kept the Php17,000.00 from the benefits
awarded to Balucas. He insisted that the sum was only entrusted to him
for safekeeping since Balucas was afraid to carry such amount when she
traveled to Abra, showing as proof thereto a letter dated September 15,
1999 by Balucas acknowledging that Japson already returned the amount
to her[,] coupled by a Certification dated September 15, 1999 from
Abelardo Yogyog, Branch Head of the Abra Provincial Post Office, that
the check corresponding to the benefits awarded to Balucas was
delivered to Balucas by mail at her address [on] Harrison St., Zone 7,
Bangued, Abra. Japson backed up his counter-allegations by producing
affidavits both dated February 14, 2003 executed by Balucas and
Resquer clearing him of any wrongdoing and lauding him for the
invaluable assistance rendered them.[4]

A case for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best
Interest of the Service was filed against Japson before the SSS. On February 4,
2003, the SSS promulgated a decision finding Japson guilty on all counts.[5]

The SSS said that while there was nothing wrong per se with petitioner letting
claimants use his home address for their claims, a perception of material gain is
nonetheless indubitable. It pointed out that it was highly improbable for claimants
from Isabela and Nueva Vizcaya, where there are also SSS branches, to file their
claims in Abra. The most logical conclusion, the SSS said, is that they made their
claims through the Spouses Abuan on the latters assurance that these would be
processed at the soonest possible time. Petitioner should have been wary of the
number of claims brought to him by the Spouses Abuan, the SSS said, and he
should have avoided these claims or referred them to the proper branch offices.
[6]
The SSS held that it is not necessary to show concrete proof of receiving
consideration therefor, following the principle of res ipsa loquitur.[7]
Petitioners motion for reconsideration was denied in an Order dated May 12, 2003.
He then appealed to the CSC.

In a resolution dated August 31, 2006, the CSC affirmed the SSS decision. The
CSC underscored the link between petitioner and the Spouses Abuan, who were
suspected of being fixers in the SSS and who allegedly ran a venture where they
earned cuts or commissions from death, disability, and retirement benefits that
were awarded to the SSS beneficiaries. The CSC found that the common link to the
evidence ranged against Japson is the fact that he processed the various claims. The
CSC also found credence in the following pieces of evidence: the statements under
oath and testimonies of the principal complainants; the appearance of petitioners
address in the Death, Disability, and Retirement Forms of claimants; petitioners
attestation to the fact of death of several members, whose death benefits he himself
processed; the fact that the claimants whom petitioner assisted were not from
Baguio City; and the fact that these claimants were referred to him by the Spouses
Abuan.[8]

The CSC held that while there is no strong evidence showing that Japson received,
collected, or took a share of the benefits awarded to the claimants, he was still
liable for the charges against him because his irregular conduct and indiscriminate
judgment relative to the handling of the claims caused a serious breach in the
integrity of the system observed by the SSS, as well as his having endangered the
welfare of the public at large.[9]

Petitioner filed a motion for reconsideration, which was denied in a resolution


dated June 23, 2008.[10]
Petitioner subsequently filed a Petition for Review under Rule 43 of the Rules of
Court before the CA. The CA, on June 8, 2009, promulgated a Decision denying
the petition and affirming the CSCs August 31, 2006 and June 23, 2008
resolutions.[11]

The CA ruled that the CSC resolutions were anchored on substantial evidence.
[12]
The CA held that it is not for the appellate court to substitute its own judgment
for that of the administrative agency on the sufficiency of evidence and the
credibility of witnesses, and its findings may only be set aside on a showing of
grave abuse of discretion. The CA also noted that, on the face of the substantial
evidence presented against him, petitioner proffered only denials and presented
himself as sole witness during the administrative proceedings.[13]

Petitioner moved for reconsideration, but the same was denied in a Resolution
dated September 9, 2009.

Thus, petitioner filed a Petition for Review on Certiorari before this Court on
October 29, 2009. In a Resolution dated June 22, 2010, the Court dismissed the
petition for failure of petitioner to obey a lawful order of the Court. Petitioner filed
a motion for reconsideration of the Resolution, which the Court granted, and the
petition was reinstated.

Petitioner argues that the CA erred in finding that he was an employee of the SSS,
and not of a private corporation, at the time of the commission of the offense
referred to in Gaspars complaint. He further argues that where there are conflicting
findings between the SSS and the CSC, the Court may make a review of the facts
of the case.[14]

Petitioner claims that, at the time of the alleged recovery of P20,000.00 from
Gaspar, he was still employed by the Development Bank of the Philippines (DBP)
Service Corporation, although he was detailed at the SSS. Thus, for that offense,
the most that the SSS could have done was to refer the matter to DBP for the
proper disciplinary action.[15]
Petitioner emphasizes that he had no hand in filling out the forms for the claims
subject of the case.[16] He points out that the Spouses Abuan did so. Moreover, there
is no evidence to show that he specifically authorized the Spouses Abuan or any of
the claimants involved to use his address.

Petitioner also highlights the CSCs finding that there was less than substantial
evidence that he financially benefited from the Spouses Abuans transactions. Thus,
he argues that the imposition of the penalty is unfounded.[17]

Petitioner also harps on the SSS standing file anywhere policy to counter the
allegation of irregularity in the filing of claims of non-Baguio City residents before
the SSS Baguio City branch where petitioner was assigned.[18] Likewise, he
contends that there was no prejudice to the SSS since all claimants turned out to be
qualified dependents/beneficiaries.[19] He posits that since the CSC found that he
had not financially benefited from the transactions, he should not be penalized or
administratively held liable and dismissed from the service.[20]

In its Comment, the CSC, through the Office of the Solicitor General, argues that
the CA correctly upheld its (CSCs) findings. The CSC maintains that petitioners
irregular conduct left the SSS vulnerable to swindlers who may use the office as an
unwitting instrument to foist their deceit on the hapless public. [21] It said that
petitioners irregular and indiscriminate judgment relative to the handling of claims
caused a serious breach in the integrity of the system observed by the SSS, as well
as his having endangered the welfare of the public at large.

As to the question of whether there was financial gain, the CSC argues that
the same is irrelevant.[22] Petitioner is guilty of Dishonesty, Grave Misconduct, and
Conduct Prejudicial to the Best Interest of the Service whether or not he gained
from such acts, the CSC said.[23]

The CSC also insists that petitioner was already an employee of the SSS at
the time of the commission of the offenses, since he was absorbed as a regular
employee on May 27, 1998.[24] His failure to refer the matter to his superiors and
keeping the money in his possession even after he was already absorbed as a
regular employee of the SSS caused prejudice to the integrity of the agency, the
CSC emphasized.[25]

The Court finds the petition bereft of merit; hence, the same is denied.

Factual findings made by quasi-judicial bodies and administrative agencies


when supported by substantial evidence are accorded great respect and even
finality by the appellate courts.[26] This is because administrative agencies possess
specialized knowledge and expertise in their respective fields. [27] As such, their
findings of fact are binding upon this Court unless there is a showing of grave
abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily
or in disregard of the evidence on record.[28]

The Court notes that, although there is some variance in the conclusion arrived at
by the SSS and the CSC, their findings as to the facts of the case are the same.
Both agencies found the evidence for the complainants credible and proved that
petitioner committed the acts complained of. Moreover, the CA sustained these
factual findings. The Court finds no reason to disturb these findings, and therefore
adopts the same.

Petitioner makes much of the CSCs finding that he did not financially benefit from
the transactions. However, whether or not petitioner gained any financial benefit is
not relevant. Neither is the fact that the government did not actually lose money
through incorrect disbursement of public funds.

When an officer or employee is disciplined, the object sought is not the


punishment of such officer or employee, but the improvement of the public service
and the preservation of the publics faith and confidence in the government.[29]

In administrative cases, the injury sought to be remedied is not merely the


loss of public money or property. More significant are the pernicious effects of
such action on the orderly administration of government services. Acts that go
against the established rules of conduct for government personnel bring harm to
the civil service, whether they result in loss or not.
Petitioner was charged with Dishonesty, Grave Misconduct, and Conduct
Prejudicial to the Best Interest of the Service.

Dishonesty is defined as the concealment or distortion of truth in a matter of


fact relevant to ones office or connected with the performance of his duty. [30] It
implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of
integrity; lack of honesty, probity, or integrity in principle; and lack of fairness and
straightforwardness.[31]

On the other hand, misconduct is a transgression of some established or definite


rule of action, is a forbidden act, is a dereliction of duty, is willful in character, and
implies wrongful intent and not mere error in judgment. [32] More particularly, it is
an unlawful behavior by the public officer.[33] The term, however, does not
necessarily imply corruption or criminal intent.[34]

Petitioners acts clearly reflect his dishonesty and grave misconduct. He was less
than forthright in his dealings with the complainants. He allowed the Spouses
Abuan to use his position to make their clients believe that he could give them
undue advantage over others without the same connection by processing their
claims faster. Likewise, his acts imply malevolent intent, and not merely error in
judgment. He was aware of what the Spouses Abuan were doing and was complicit
in the same. At the very least, he failed to stop the illegal trade, and that constitutes
willful disregard of the laws and rules.

Taken together, all the circumstances, as found by the SSS and the CSC, show that
petitioner committed acts of Dishonesty, Grave Misconduct, and Conduct
Prejudicial to the Best Interest of the Service.

Prejudice to the service is not only through wrongful disbursement of public funds
or loss of public property. Greater damage comes with the publics perception of
corruption and incompetence in the government.

Petitioner is reminded that a public servant must exhibit at all times the
highest sense of honesty and integrity. The Constitution stresses that a public office
is a public trust and public officers must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives. These constitutionally-enshrined
principles, oft-repeated in our case law, are not mere rhetorical flourishes or
idealistic sentiments. They should be taken as working standards by all in the
public service.[35]

WHEREFORE, the foregoing premises considered, the Petition is DENIED for


lack of merit.
SO ORDERED.
G.R. No. 78957 June 28, 1988

MARIO D. ORTIZ, petitioner,


vs.
COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.

FERNAN, J.:

In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official whose "courtesy
resignation" was accepted by the President of the Philippines during the effectivity of the Freedom Constitution may be entitled to retirement
benefits under Republic Act No. 1568, as amended.

Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then


President Ferdinand E. Marcos "for a term expiring May 17, 1992." He took his oath of office on1

July 30, 1985.

On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro,
petitioner sent President Corazon C. Aquino a letter which reads as follows:

The undersigned Commissioners were appointed to the Commission on Elections on


July 30, 1985.

Following the example of Honorable Justices of the Supreme Court, on the premise
that we have now a revolutionary government, we hereby place our position at your
disposal. 2

Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through Proclamation
No. 3, Artide III thereof provides:

SECTION 1. In the reorganization of the government, priority shall be given to


measures to promote economy, efficiency, and the eradication of graft and
corruption.

SEC. 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such is made within a period of one year from February 25, 1986.

SEC. 3. Any public officer or employee separated from the service as a result of the
reorganization effected under this Proclamation shall, if entitled under the laws then
in force, receive the retirement and other benefits accruing thereunder.

On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and
Commissioners Froilan M. Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein),
Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364 approving the application
for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven days later, the same
body passed Resolution No. 862370 approving the application for retirement of Commissioner
Mangontawar B. Guro.

On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the
information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had
"accepted, with regrets, their respective resignations, effective immediately." After the presidential 3

acceptance of said "resignations," the new COMELEC was composed of Ramon H. Felipe, Jr. as
Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B. Yorac, Andres R.
Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this body that
Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective
applications for retirement. They were followed by Commissioner Layosa on August 1, 1986.

To justify their petitions for retirement and their requests for payment of retirement benefits, all seven
former COMELEC Commissioners invoked Republic Act No. l568 as amended by Republic Act No.
3595 and re-enacted by Republic Act No. 6118, specifically the following provision:

SECTION 1. When the Auditor General or the Chairman or any Member of the
Commission on Elections retires from the service for having completed his term of
office or by reason of his incapacity to discharge the duties of his office, or dies while
in the service, or resigns at any time after reaching the age of sixty years but before
the expiration of his term of office, he or his heirs shall be paid in lump sum his salary
for one year, not exceeding five years, for every year of service based upon the last
annual salary that he was receiving at the time of retirement incapacity, death or
resignation, as the case may be: Provided, That in case of resignation, he has
rendered not less than twenty years of service in the government; And provided,
further, That he shall receive an annuity payable monthly during the residue of his
natural life equivalent to the amount of monthly salary he was receiving on the date
of retirement, incapacity or resignation.

In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked Resolutions Nos. 86-2364 dated April
16, 1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz and
Layosa on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as amended" without specifying the
reason therefor. 5

Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to
the benefits under Republic Act No. 1568, as amended. He averred therein that he did not resign but
simply placed his position at the disposal of the President; that he had in fact completed his term as
Commissioner by the "change in the term of [his] office and eventual replacement," and that he was
entitled to retirement benefits under the aforementioned law because Article 1186 of the Civil Code
which states that "the condition [with regard to an obligation] shall be deemed fulfilled when the
obligor voluntarily prevents its fulfillment." He invoked the aforequoted provisions of Proclamation
No. 3 and cited the cases of former Chief Justice Ramon C. Aquino and Associate Justice
Hermogenes Concepcion, Jr. who were allowed to retire by this Court and receive retirement
benefits. 6

Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc resolution
of October 1, 1986.** On December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit
[COA]. In its memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for comment and
recommendation. Having failed to receive any communication from the COA for some six months, on June 3, 1987, petitioner reiterated his
appeal thereto. Again, the matter was referred to the COMELEC resident auditor with a request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the
COMELEC's "arbitrary and unjust denial" of his claim for retirement benefits and of his subsequent
motion for reconsideration constitutes "grave and whimsical abuse of discretion amounting to lack of
jurisdiction" which can only be remedied through the instant petition in the absence of an appeal or
any plain, speedy and adequate remedy. In his memorandum, however, petitioner admits that, as
7

correctly stated by the Solicitor General in respondents' comment on the petition, this petition is
basically one for a writ of mandamus aimed at compelling both the COMELEC and the COA to
approve his claim for retirement benefits. 8

We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding
the Solicitor General's contention that action herein is premature as the COA may yet render a
decision favorable to the petitioner, We opt to decide this case to shed light on the legal issue
presented.

The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of
his term of office, and, therefore, having rendered only sixteen years of service to the government,
he is not entitled to retirement benefits. 9

We disagree. Petitioner's separation from government service as a result of the reorganization


ordained by the then nascent Aquino government may not be considered a resignation within the
contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. To constitute a complete and
10

operative act of resignation, the officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment. Resignation implies an 11

expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce and relinquish the office, and its acceptance by competent and lawful authority. 12

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to
surrender his position. We cannot presume such intention from his statement in his letter of March 5,
1986 that he was placing his position at the disposal of the President. He did not categorically state
therein that he was unconditionally giving up his position. It should be remembered that said letter
was actually a response to Proclamation No. 1 which President Aquino issued on February 25,1986
when she called on all appointive public officials to tender their "courtesy resignation" as a "first step
to restore confidence in public administration.

Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it
is not necessarily a reflection of a public official's intention to surrender his position. Rather, it
manifests his submission to the will of the political authority and the appointing power.

A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases


involving constitutional officials like the petitioner whose removal from office entails an impeachment
proceeding. For even if working for the government is regarded as no more than a privilege,
13

discharge for disloyalty or for doubt about loyalty may involve such legal rights as those in reputation
and eligibility for other employment. 14
The curtailment of his term not being attributable to any voluntary act on the part of the petitioner,
equity and justice demand that he should be deemed to have completed his term albeit much ahead
of the date stated in his appointment paper. Petitioner's case should be placed in the same category
as that of an official holding a primarily confidential position whose tenure ends upon his superior's
loss of confidence in him. His cessation from the service entails no removal but an expiration of his
term. 15

As he is deemed to have completed his term of office, petitioner should be considered retired from
the service. And, in the absence of proof that he has been found guilty of malfeasance or
misfeasance in office or that there is a pending administrative case against him, petitioner is entitled
to a life pension under Republic Act No. 1568 as amended and reenacted by Republic Act No. 6118.
He is, therefore, protected by the mantle of the Freedom Constitution specifically Article III, Section 3
thereof which was in effect when he was replaced by the appointment and qualification of a new
Commissioner.

Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred
compensation for services performed and his right thereto commences to vest upon his entry into
the retirement system and becomes an enforceable obligation in court upon fulfillment of all
conditions under which it is to be paid. Similarly, retirement benefits receivable by public
16

employees are valuable parts of the consideration for entrance into and continuation in public
employment. They serve a public purpose and a primary objective in establishing them is to induce
17

able persons to enter and remain in public employment, and to render faithful and efficient service
while so employed. 18

Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than
twenty years of service in the government at the time of the retirement, death or resignation of the
Auditor General or the Chairman and any Member of the COMELEC. The same length of service
was required after Republic Act No. 3473 amended the law. However, Republic Act No. 3595 further
amended Republic Act No. 1568 and the 20-year service requirement was mandated only in case of
resignation of the public official covered by the law. Although Republic Act No. 1568, as amended,
was inoperative and abolished in Section 9 of Republic Act No. 4968, it was re-enacted under
Republic Act No. 6118.

On the respondents' assertion that the retirement law is clear and hence, there is no room for its
interpretation, We reiterate the basic principle that, being remedial in character, a statute creating
pensions should be liberally construed and administered in favor of the persons intended to be
benefited thereby. This is as it should be because the liberal approach aims to achieve the
19

humanitarian purposes of the law in order that the efficiency, security, and well-being of government
employees may be enhanced. 20

WHEREFORE, respondent Commission on Elections denial of petitioner's application for retirement


benefits is hereby reversed and set aside. The Commission on Audit and other public offices
concerned are directed to facilitate the processing and payment of petitioner's retirement benefits.

SO ORDERED.

Yap, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino and Medialdea, JJ., concur.

ANONYMOUS, A.M. No. P-07-2333


Complainant, (formerly OCA IPI No. 07-2510-P)
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
MA. VICTORIA P. RADAM,
Utility Worker, Office of the
Clerk of Court, Regional Trial
Court of Alaminos City,
Pangasinan,
Respondent. Promulgated:

December 19, 2007

x--------------------------------------------------x

RESOLUTION

CORONA, J.:

In an anonymous letter-complaint dated September 30, 2005, [1] respondent


Ma. Victoria Radam, utility worker in the Office of the Clerk of Court of the
Regional Trial Court of Alaminos City in Pangasinan, was charged with
immorality. The unnamed complainant alleged that respondent was unmarried but
got pregnant and gave birth sometime in October 2005. [2] The complainant claimed
that respondents behavior tainted the image of the judiciary.

In connection with the complaint, Judge Elpidio N. Abella [3] conducted a


discreet investigation to verify the allegations against respondent.
In his report dated March 8, 2006,[4] Judge Abella made the following
findings:
On March 1, 2006, respondent submitted a letter addressed to the
Honorable Court Administrator, thru the undersigned, duly subscribed
and sworn to before the Clerk of Court VI of the Court, alleging among
others, the following:

1) She admitted that she is single/unmarried, and


indeed she was pregnant and actually gave birth to a baby
boy named Christian Jeon Radam on 03 November 2005
at the Western Pangasinan District Hospital, Alaminos
City;

2) The reason why she did not yet marry the father
of her child Christian Jeon was that she and the childs
father have pending application[s] [to migrate to Canada]
as in fact they have [a] mutual plan to remain unmarried
[and]

3) Nevertheless, she expressed her remorse and


promised not to commit the same mistake and indiscretion
in the future.

Further investigation reveal[ed] the following:


1) That respondent was appointed as Utility
Worker on September 4, 2000;
2) The father of Christian Jeon Radam is unknown,
as shown by the childs Certificate of Live Birth, hereto
attached;[5]

3) It was verbally admitted by the respondent that


she had given birth to two (2) other children before
Christian Jeon, but they were conceived and born while
respondent was working abroad and before she was
employed in the [Office of the Clerk of Court of the
Regional Trial Court of] Alaminos City.[6]

In this connection, Judge Abella made the following recommendation:

Since respondent admitted that she is single and that she got pregnant
and gave birth to a baby boy without being married to the father of the
child, albeit she advanced the reason for her remaining unmarried, it
being that she and her boyfriend had a mutual plan to migrate to
Canada, this Investigating Judge considers that such conduct of the
respondent fell short of the strict standards of Court personnel and
contrary to the Code of Judicial Ethics and the Civil Service Rules. A
place in the judiciary demands upright men and women who must carry
on with dignity, hence respondent is guilty of disgraceful and immoral
conduct which cannot be countenanced by the Court. Certainly, the
image of the Judiciary has been affected by such conduct of the
respondent.

Premises considered, it is hereby respectfully recommended that


respondent MA. VICTORIA RADAM be accordingly found GUILTY of
IMMORAL CONDUCT or ACT UNBECOMING A COURT
EMPLOYEE. A suspension of one (1) month or a fine of Php5,000.00 is
respectfully recommended, with warning that a repetition of the same or
similar act in the future will be dealt with more severely. [7]

After reviewing the findings and recommendation of Judge Abella, the Office of
the Court Administrator (OCA) recommended that, in accordance with Villanueva
v. Milan,[8] respondent be absolved of the charge of immorality because her alleged
misconduct (that is, giving birth out of wedlock) did not affect the character and
nature of her position as a utility worker.[9] It observed:

[T]here is no indication that the relationship of respondent to her alleged


boyfriend has caused prejudice to any person or has adversely affected
the performance of her function as utility worker to the detriment of the
public service.

However, it proposed that she be held liable for conduct unbecoming a court
employee and imposed a fine of P5,000 for stating in the birth certificate of her
child Christian Jeon that the father was unknown to her.[10]
The OCA correctly exonerated respondent from the charge of immorality.
However, its recommendation to hold her liable for a charge of which she was not
previously informed was wrong.

For purposes of determining administrative responsibility, giving birth out of


wedlock is not per se immoral under civil service laws. For such conduct to
warrant disciplinary action, the same must be grossly immoral, that is, it must be so
corrupt and false as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree.[11]

In Estrada v. Escritor,[12] we emphasized that in determining whether the acts


complained of constitute disgraceful and immoral behavior under civil service
laws, the distinction between public and secular morality on the one hand, and
religious morality, on the other should be kept in mind.[13] The distinction between
public and secular morality as expressed albeit not exclusively in the law, on the
one hand, and religious morality, on the other, is important because the jurisdiction
of the Court extends only to public and secular morality. [14] Thus, government
action, including its proscription of immorality as expressed in criminal law like
adultery or concubinage, must have a secular purpose.[15]

For a particular conduct to constitute disgraceful and immoral behavior


under civil service laws, it must be regulated on account of the concerns of public
and secular morality. It cannot be judged based on personal bias, specifically those
colored by particular mores. Nor should it be grounded on cultural values not
convincingly demonstrated to have been recognized in the realm of public policy
expressed in the Constitution and the laws.[16] At the same time, the constitutionally
guaranteed rights (such as the right to privacy) should be observed to the extent
that they protect behavior that may be frowned upon by the majority.[17]

Under these tests, two things may be concluded from the fact that an
unmarried woman gives birth out of wedlock:
(1) if the father of the child is himself unmarried, the woman is not
ordinarily administratively liable for disgraceful and immoral
conduct.[18] It may be a not-so-ideal situation and may cause
complications for both mother and child but it does not give cause for
administrative sanction. There is no law which penalizes an
unmarried mother under those circumstances by reason of her sexual
conduct or proscribes the consensual sexual activity between two
unmarried persons. Neither does the situation contravene any
fundamental state policy as expressed in the Constitution, a document
that accommodates various belief systems irrespective of dogmatic
origins.[19]
(2) if the father of the child born out of wedlock is himself married to a
woman other than the mother, then there is a cause for administrative
sanction against either the father or the mother. [20] In such a case, the
disgraceful and immoral conduct consists of having extramarital
relations with a married person.[21] The sanctity of marriage is
constitutionally recognized[22] and likewise affirmed by our statutes as
a special contract of permanent union.[23] Accordingly, judicial
employees have been sanctioned for their dalliances with married
persons or for their own betrayals of the marital vow of fidelity.
In this case, it was not disputed that, like respondent, the father of her child
was unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out of
wedlock.

Respondent was indicted only for alleged immorality for giving birth out of
wedlock. It was the only charge of which she was informed. Judge Abellas
investigation focused solely on that matter. Thus, the recommendation of the OCA
that she be held administratively liable in connection with an entry in the birth
certificate of Christian Jeon came like a thief in the night. It was unwarranted.
Respondent was neither confronted with it nor given the chance to explain it. To
hold her liable for a totally different charge of which she was totally unaware will
violate her right to due process.

The essence of due process in an administrative proceeding is the


opportunity to explain ones side, whether written or verbal.[24] This presupposes
that one has been previously apprised of the accusation against him or her. Here,
respondent was deprived of both with regard to her alleged unbecoming conduct in
relation to a certain statement in the birth certificate of her child.

An employee must be informed of the charges proferred against him,


and the normal way by which the employee is so informed is by
furnishing him with a copy of the charges against him. This is a basic
procedural requirement that cannot [be] dispense[d] with and still
remain consistent with the constitutional provision on due process. The
second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to
present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his
defense(s).[25]
Ones employment is not merely a specie of property rights. It is also the
means by which he and those who depend on him live. [26] It is therefore protected
by the guarantee of security of tenure. And in the civil service, this means that no
government employee may be removed, suspended or disciplined unless for cause
provided by law[27] and after due process. Unless the constitutional guarantee of
due process is a mere platitude, it is the Courts duty to insist on its observance in
all cases involving a deprivation, denigration or dilution of ones right to life,
liberty and property.

WHEREFORE, the administrative complaint against respondent Ma. Victoria P.


Radam is hereby DISMISSED. She is, however, strongly advised to be more
circumspect in her personal and official actuations in the future.

SO ORDERED.
G.R. No. L-48194 March 15, 1990

JOSE M. JAVIER and ESTRELLA F. JAVIER, petitioners,


vs.
COURT OF APPEALS and LEONARDO TIRO, respondents.

Eddie Tamondong for petitioners.

Lope Adriano and Emmanuel Pelaez, Jr. for private respondent.

REGALADO, J.:

Petitioners pray for the reversal of the decision of respondent Court of Appeals in CA-G.R. No.
52296-R, dated March 6, 1978, the dispositive portion whereof decrees:
1

WHEREFORE, the judgment appealed from is hereby set aside and another one
entered ordering the defendants-appellees, jointly and solidarily, to pay plaintiff-
appellant the sum of P79,338.15 with legal interest thereon from the filing of the
complaint, plus attorney's fees in the amount of P8,000.00. Costs against
defendants-appellees. 2
As found by respondent court or disclosed by the records, this case was generated by the following
3

antecedent facts.

Private respondent is a holder of an ordinary timber license issued by the Bureau of Forestry
covering 2,535 hectares in the town of Medina, Misamis Oriental. On February 15, 1966 he executed
a "Deed of Assignment" in favor of herein petitioners the material parts of which read as follows:
4

xxx xxx xxx

I, LEONARDO A. TIRO, of legal age, married and a resident of Medina, Misamis


Oriental, for and in consideration of the sum of ONE HUNDRED TWENTY
THOUSAND PESOS (P120,000.00), Philippine Currency, do by these presents,
ASSIGN, TRANSFER AND CONVEY, absolutely and forever unto JOSE M. JAVIER
and ESTRELLA F. JAVIER, spouses, of legal age and a resident (sic) of 2897 F.B.
Harrison, Pasay City, my shares of stocks in the TIMBERWEALTH CORPORATION
in the total amount of P120,000.00, payment of which shall be made in the following
manner:

1. Twenty thousand (P20,000.00) Pesos upon signing of this contract;

2. The balance of P100,000.00 shall be paid P10,000.00 every


shipment of export logs actually produced from the forest concession
of Timberwealth Corporation.

That I hereby agree to sign and endorse the stock certificate in favor of Mr. & Mrs.
Jose M. Javier, as soon as stock certificates are issued.

xxx xxx xxx

At the time the said deed of assignment was executed, private respondent had a pending
application, dated October 21, 1965, for an additional forest concession covering an area of 2,000
hectares southwest of and adjoining the area of the concession subject of the deed of assignment.
Hence, on February 28, 1966, private respondent and petitioners entered into another
"Agreement" with the following stipulations:
5

xxx xxx xxx

1. That LEONARDO TIRO hereby agrees and binds himself to transfer, cede and
convey whatever rights he may acquire, absolutely and forever, to TIMBERWEALTH
CORPORATION, a corporation duly organized and existing under the laws of the
Philippines, over a forest concession which is now pending application and approval
as additional area to his existing licensed area under O.T. License No. 391-103166,
situated at Medina, Misamis Oriental;

2. That for and in consideration of the aforementioned transfer of rights over said
additional area to TIMBERWEALTH CORPORATION, ESTRELLA F. JAVIER and
JOSE M. JAVIER, both directors and stockholders of said corporation, do hereby
undertake to pay LEONARDO TIRO, as soon as said additional area is approved
and transferred to TIMBERWEALTH CORPORATION the sum of THIRTY
THOUSAND PESOS (P30,000.00), which amount of money shall form part of their
paid up capital stock in TIMBERWEALTH CORPORATION;
3. That this Agreement is subject to the approval of the members of the Board of
Directors of the TIMBERWEALTH CORPORATION.

xxx xxx xxx

On November 18, 1966, the Acting Director of Forestry wrote private respondent that his forest
concession was renewed up to May 12, 1967 under O.T.L. No. 391-51267, but since the concession
consisted of only 2,535 hectares, he was therein informed that:

In pursuance of the Presidential directive of May 13, 1966, you are hereby given until
May 12, 1967 to form an organization such as a cooperative, partnership or
corporation with other adjoining licensees so as to have a total holding area of not
less than 20,000 hectares of contiguous and compact territory and an aggregate
allowable annual cut of not less than 25,000 cubic meters, otherwise, your license
will not be further renewed. 6

Consequently, petitioners, now acting as timber license holders by virtue of the deed of assignment
executed by private respondent in their favor, entered into a Forest Consolidation Agreement on 7

April 10, 1967 with other ordinary timber license holders in Misamis Oriental, namely, Vicente L. De
Lara, Jr., Salustiano R. Oca and Sanggaya Logging Company. Under this consolidation agreement,
they all agreed to pool together and merge their respective forest concessions into a working unit, as
envisioned by the aforementioned directives. This consolidation agreement was approved by the
Director of Forestry on May 10, 1967. The working unit was subsequently incorporated as the North
8

Mindanao Timber Corporation, with the petitioners and the other signatories of the aforesaid Forest
Consolidation Agreement as incorporators. 9

On July 16, 1968, for failure of petitioners to pay the balance due under the two deeds of
assignment, private respondent filed an action against petitioners, based on the said contracts, for
the payment of the amount of P83,138.15 with interest at 6% per annum from April 10, 1967 until full
payment, plus P12,000.00 for attorney's fees and costs.

On September 23, 1968, petitioners filed their answer admitting the due execution of the contracts
but interposing the special defense of nullity thereof since private respondent failed to comply with
his contractual obligations and, further, that the conditions for the enforceability of the obligations of
the parties failed to materialize. As a counterclaim, petitioners sought the return of P55,586.00 which
private respondent had received from them pursuant to an alleged management agreement, plus
attorney's fees and costs.

On October 7, 1968, private respondent filed his reply refuting the defense of nullity of the contracts
in this wise:

What were actually transferred and assigned to the defendants were plaintiff's rights
and interest in a logging concession described in the deed of assignment, attached
to the complaint and marked as Annex A, and agreement Annex E; that the "shares
of stocks" referred to in paragraph II of the complaint are terms used therein merely
to designate or identify those rights and interests in said logging concession. The
defendants actually made use of or enjoyed not the "shares of stocks" but the
logging concession itself; that since the proposed Timberwealth Corporation was
owned solely and entirely by defendants, the personalities of the former and the latter
are one and the same. Besides, before the logging concession of the plaintiff or the
latter's rights and interests therein were assigned or transferred to defendants, they
never became the property or assets of the Timberwealth Corporation which is at
most only an association of persons composed of the defendants. 10

and contending that the counterclaim of petitioners in the amount of P55,586.39 is actually only a
part of the sum of P69,661.85 paid by the latter to the former in partial satisfaction of the latter's
claim.11

After trial, the lower court rendered judgment dismissing private respondent's complaint and ordering
him to pay petitioners the sum of P33,161.85 with legal interest at six percent per annum from the
date of the filing of the answer until complete payment. 12

As earlier stated, an appeal was interposed by private respondent to the Court of Appeals which
reversed the decision of the court of a quo.

On March 28, 1978, petitioners filed a motion in respondent court for extension of time to file a
motion for reconsideration, for the reason that they needed to change counsel. Respondent court,
13

in its resolution dated March 31, 1978, gave petitioners fifteen (15) days from March 28, 1978 within
which to file said motion for reconsideration, provided that the subject motion for extension was filed
on time. On April 11, 1978, petitioners filed their motion for reconsideration in the Court of
14

Appeals. On April 21, 1978, private respondent filed a consolidated opposition to said motion for
15

reconsideration on the ground that the decision of respondent court had become final on March 27,
1978, hence the motion for extension filed on March 28, 1978 was filed out of time and there was no
more period to extend. However, this was not acted upon by the Court of Appeals for the reason that
on April 20, 1978, prior to its receipt of said opposition, a resolution was issued denying petitioners'
motion for reconsideration, thus:

The motion for reconsideration filed on April 11, 1978 by counsel for defendants-
appellees is denied. They did not file any brief in this case. As a matter of fact this
case was submitted for decision without appellees' brief. In their said motion, they
merely tried to refute the rationale of the Court in deciding to reverse the appealed
judgment. 16

Petitioners then sought relief in this Court in the present petition for review on certiorari. Private
respondent filed his comment, reiterating his stand that the decision of the Court of Appeals under
review is already final and executory.

Petitioners countered in their reply that their petition for review presents substantive and
fundamental questions of law that fully merit judicial determination, instead of being suppressed on
technical and insubstantial reasons. Moreover, the aforesaid one (1) day delay in the filing of their
motion for extension is excusable, considering that petitioners had to change their former counsel
who failed to file their brief in the appellate court, which substitution of counsel took place at a time
when there were many successive intervening holidays.

On July 26, 1978, we resolved to give due course to the petition.

The one (1) day delay in the filing of the said motion for extension can justifiably be excused,
considering that aside from the change of counsel, the last day for filing the said motion fell on a
holiday following another holiday, hence, under such circumstances, an outright dismissal of the
petition would be too harsh. Litigations should, as much as possible, be decided on their merits and
not on technicalities. In a number of cases, this Court, in the exercise of equity jurisdiction, has
relaxed the stringent application of technical rules in order to resolve the case on its merits. Rules of
17
procedure are intended to promote, not to defeat, substantial justice and, therefore, they should not
be applied in a very rigid and technical sense.

We now proceed to the resolution of this case on the merits.

The assignment of errors of petitioners hinges on the central issue of whether the deed of
assignment dated February 15, 1966 and the agreement of February 28, 1966 are null and void, the
former for total absence of consideration and the latter for non-fulfillment of the conditions stated
therein.

Petitioners contend that the deed of assignment conveyed to them the shares of stocks of private
respondent in Timberwealth Corporation, as stated in the deed itself. Since said corporation never
came into existence, no share of stocks was ever transferred to them, hence the said deed is null
and void for lack of cause or consideration.

We do not agree. As found by the Court of Appeals, the true cause or consideration of said deed
was the transfer of the forest concession of private respondent to petitioners for P120,000.00. This
finding is supported by the following considerations, viz:

1. Both parties, at the time of the execution of the deed of assignment knew that the Timberwealth
Corporation stated therein was non-existent. 18

2. In their subsequent agreement, private respondent conveyed to petitioners his inchoate right over
a forest concession covering an additional area for his existing forest concession, which area he had
applied for, and his application was then pending in the Bureau of Forestry for approval.

3. Petitioners, after the execution of the deed of assignment, assumed the operation of the logging
concessions of private respondent. 19

4. The statement of advances to respondent prepared by petitioners stated: "P55,186.39 advances


to L.A. Tiro be applied to succeeding shipments. Based on the agreement, we pay P10,000.00 every
after (sic) shipment. We had only 2 shipments" 20

5. Petitioners entered into a Forest Consolidation Agreement with other holders of forest
concessions on the strength of the questioned deed of assignment. 21

The aforesaid contemporaneous and subsequent acts of petitioners and private respondent reveal
that the cause stated in the questioned deed of assignment is false. It is settled that the previous and
simultaneous and subsequent acts of the parties are properly cognizable indica of their true
intention. Where the parties to a contract have given it a practical construction by their conduct as
22

by acts in partial performance, such construction may be considered by the court in construing the
contract, determining its meaning and ascertaining the mutual intention of the parties at the time of
contracting. The parties' practical construction of their contract has been characterized as a clue or
23

index to, or as evidence of, their intention or meaning and as an important, significant, convincing,
persuasive, or influential factor in determining the proper construction of the agreement. 24

The deed of assignment of February 15, 1966 is a relatively simulated contract which states a false
cause or consideration, or one where the parties conceal their true agreement. A contract with a
25

false consideration is not null and void per se. Under Article 1346 of the Civil Code, a relatively
26

simulated contract, when it does not prejudice a third person and is not intended for any purpose
contrary to law, morals, good customs, public order or public policy binds the parties to their real
agreement.

The Court of Appeals, therefore, did not err in holding petitioners liable under the said deed and in
ruling that —

. . . In view of the analysis of the first and second assignment of errors, the
defendants-appellees are liable to the plaintiff-appellant for the sale and transfer in
their favor of the latter's forest concessions. Under the terms of the contract, the
parties agreed on a consideration of P120,000.00. P20,000.00 of which was paid,
upon the signing of the contract and the balance of P100,000.00 to be paid at the
rate of P10,000.00 for every shipment of export logs actually produced from the
forest concessions of the appellant sold to the appellees. Since plaintiff-appellant's
forest concessions were consolidated or merged with those of the other timber
license holders by appellees' voluntary act under the Forest Consolidation
Agreement (Exhibit D), approved by the Bureau of Forestry (Exhibit D-3), then the
unpaid balance of P49,338.15 (the amount of P70,661.85 having been received by
the plaintiff-appellant from the defendants-appellees) became due and
demandable. 27

As to the alleged nullity of the agreement dated February 28, 1966, we agree with petitioners that
they cannot be held liable thereon. The efficacy of said deed of assignment is subject to the
condition that the application of private respondent for an additional area for forest concession be
approved by the Bureau of Forestry. Since private respondent did not obtain that approval, said deed
produces no effect. When a contract is subject to a suspensive condition, its birth or effectivity can
take place only if and when the event which constitutes the condition happens or is fulfilled. If the
28

suspensive condition does not take place, the parties would stand as if the conditional obligation had
never existed. 29

The said agreement is a bilateral contract which gave rise to reciprocal obligations, that is, the
obligation of private respondent to transfer his rights in the forest concession over the additional area
and, on the other hand, the obligation of petitioners to pay P30,000.00. The demandability of the
obligation of one party depends upon the fulfillment of the obligation of the other. In this case, the
failure of private respondent to comply with his obligation negates his right to demand performance
from petitioners. Delivery and payment in a contract of sale, are so interrelated and intertwined with
each other that without delivery of the goods there is no corresponding obligation to pay. The two
complement each other. 30

Moreover, under the second paragraph of Article 1461 of the Civil Code, the efficacy of the sale of a
mere hope or expectancy is deemed subject to the condition that the thing will come into existence.
In this case, since private respondent never acquired any right over the additional area for failure to
secure the approval of the Bureau of Forestry, the agreement executed therefor, which had for its
object the transfer of said right to petitioners, never became effective or enforceable.

WHEREFORE, the decision of respondent Court of Appeals is hereby MODIFIED. The agreement of
the parties dated February 28, 1966 is declared without force and effect and the amount of
P30,000.00 is hereby ordered to be deducted from the sum awarded by respondent court to private
respondent. In all other respects, said decision of respondent court is affirmed.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Sarmiento JJ., concur.


GOVERNMENT SERVICE G.R. No. 191218
INSURANCE SYSTEM
(GSIS) and WINSTON F.
GARCIA, in his capacity as
President and General Present:
Manager of the GSIS,

Petitioners,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,*
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
- versus
SERENO, JJ

Promulgated:

May 31, 2011

ARWIN T. MAYORDOMO,

Respondent.

x-----------------------------------------------------------------------------------------x
DECISION

MENDOZA, J.:

In this petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, the Government Service Insurance System (GSIS) and its then
President and General Manager, Winston F. Garcia (Garcia), assail and seek to
modify the July 31, 2009 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP
No. 105414,[2] as reiterated in its February 5, 2010 Resolution[3] denying the motion
for reconsideration thereof for lack of merit.

The Facts:

Respondent Arwin T. Mayordomo (Mayordomo) was employed as Accounts


Management Specialist of the GSIS Fund Management Accounting
Department (FMAD), responsible for the preparation of financial statements,
from October 2, 2000 until his dismissal on August 31, 2007.[4]

Sometime in September 2004, Ignacio L. Liscano (Liscano), then GSIS


Information Technology Officer (ITO) III called the attention of Joseph Sta.
Romana (Sta. Romana), another ITO, about a network conflict in his personal
computer. Sta. Romana conducted a network scan to identify the source of the
problem. During the scan, he discovered that another personal computer within the
GSIS computer network was also using the internet protocol (IP) address [5] of
Liscanos computer. This other computer was eventually identified as the one
assigned to Mayordomo with username ATMAYORDOMO.

Sta. Romana immediately restored the correct IP address assigned to


Mayordomos personal computer. Until this restoration, Liscano was deprived of
access to the GSIS computer network and prevented from performing his work as
ITO. Mayordomo was verbally reminded that he had no authority to change his IP
address and warned that doing so would result in network problems.[6]
On February 9, 2005, in the course of another network scan, Sta. Romana
again encountered the username ATMAYORDOMO. This time, an IP address,
belonging to the range of the GSIS Remote Access Server (RAS), [7] was simulated
and used. Knowing that the RAS would provide an exclusive external trafficking
route to the GSIS computer system and realizing that Mayordomo could have
gained access to the entire GSIS network including its restricted resources, Sta.
Romana lost no time in reporting the matter to Rolando O. Tiu (Tiu), Vice-
President of the Resources Administration Office. Before the IT network personnel
could take any action, however, Mayordomo restored his assigned IP address.

The next day, the username ATMAYORDOMO appeared again in the scan,
this time using two (2) IP addresses of the RAS (143.44.6.1 and 143.44.6.2). With
notice to Tiu, Mayordomos personal computer was pulled out to have the glitches
caused by the unauthorized use of the said IP addresses fixed.

According to GSIS, [t]he unauthorized changing of IP address gave freedom


to respondent to exploit the GSIS network system and gain access to other
restricted network resources, including the internet. It also resulted to IP address
network conflict which caused unnecessary work to and pressure on ITSG
personnel who had to fix the same. Further, as a consequence, Mayordomos
simulation of the RAS IP addresses caused disruption within the GSIS mainframe
on-line system affecting both the main and branch offices of the GSIS. His actions
likewise prevented authorized outside users from accessing the GSIS network
through the RAS IP addresses he simulated.[8]

In his Memorandum[9] dated February 11, 2005, Tiu reported Mayordomos


acts to Esperanza R. Fallorina and Maria Corazon G. Magdurulan, [10] with
emphasis on the danger of changing IP addresses as a channel for virus
proliferation that could result to loss of critical files for all those infected and
render said users unproductive. Tiu also reported that Mayordomo changed his IP
address to gain access to the internet as shown by downloaded programs in his
computer that were not allowed or unnecessary for his work.

In his written explanation[11] of the same date, Mayordomo admitted the acts
imputed to him and offered no excuse therefor. He nonetheless explained his side
and claimed that the IP address assigned to him could not access the network due
to a conflict with another IP address. Despite several verbal notices to the
Information Technology Services Group (ITSG), he was simply told that the
conflict would eventually disappear. The network conflict, however, persisted and
resulted in the disruption of his work constraining him to use another IP address to
use an officemates laser printer which was only accessible thru the Local Area
Network (LAN). In his desperate need to print a set of financial reports which were
considered a rush job, Mayordomo decided not to request formal assistance in
accordance with the proper procedure. He apologized and promised not to change
his IP address again, acknowledging the hazards of such careless use of the system.

On February 21, 2005, Human Resource Office Vice-President J. Fernando


U. Campana issued a memorandum[12] strictly enjoining Mayordomo not to repeat
such actuations, and to follow standard office procedures or exercise prudent
judgment and obtain the necessary clearance before engaging in any extraordinary
measure. In the same memorandum, it was noted that Mayordomo did not heed the
earlier warning by the ITSG on the effects brought about by the changing of his IP
address to the entire network system. Further, despite absence of intent to harm the
system, his act of changing his IP address to facilitate the printing of rush
accounting reports was unsanctioned/illegal because he lacked the authority to
access the network. Thereafter, Mayordomos personal computer was returned to
him.

On May 3, 2006, or more than a year later, Mayordomo received a Show-


Cause Memorandum from the Investigation Department in connection with his
previous acts of changing his IP address. [13] In reply, Mayordomo admitted that he
changed his IP address because the one given to him by the ITSG was in conflict
with some other IP addresses. The ITSG was not able to address this problem,
prompting him to change his IP address to be able to perform his work.
In June 2006, President and General Manager Garcia issued a formal
administrative charge[14] against Mayordomo, for Grave Misconduct and/or
Conduct Prejudicial to the Best Interest of the Service.In his July 3, 2006 Answer,
[15]
Mayordomo admitted that he changed his IP address but he denied having
violated any policy or guideline on the subject because no policy, regulation or rule
pertaining to changing of IP address existed at the time of its commission. It was
only on November 10, 2005 when the GSIS adopted a policy against unauthorized
changing of IP addresses. Hence, he could not be held liable in view of the
constitutional prohibition against ex post facto laws.

On August 6, 2006, Mayordomo submitted his Supplemental Answer with


Manifestation,[16] attaching affidavits of his co-workers stating that he indeed
reported the problem with his IP address but this was never fixed by the ITSG. He
also averred that he had previously used a username and password of an officemate
with the blessing and explicit approval of the latter. He then waived a formal
investigation and agreed to submit the case for decision on the basis of the
evidence on record.

On March 7, 2007, the GSIS rendered its Decision[17] finding Mayordomo


guilty of Grave Misconduct and imposing upon him the penalty of dismissal, with
forfeiture of benefits, loss of eligibility and disqualification from government
service. In said Decision, the GSIS discussed the significance of an IP address, viz:

An IP address is an identifier for a computer or device on a


TCP/IP network. Networks using the TCP/IP protocol route
messages based on the IP address of the destination. The format
of an IP address is a 32-bit numeric address written as four
numbers separated by periods. Each number can be zero to 255.
For example, 1.160.10.240 could be an IP address. Within an
isolated network, one can assign IP address at random as long as
each one is unique.

It is clear from the above that no two (2) PCs can have the
same IP address. And in the event where two (2) PCs end up
having the same IP address, both PCs would not be able to access
the network xxx When the respondent changed his PCs IP address
to that of Mr. Liscanos PC, both the respondent and Mr. Liscano
were not able to access the GSIS network. To the respondents bad
luck, the IP address he used was assigned to the PC of an ITSG
personnel, thus, the same was immediately investigated and his
actions discovered.
xxx

On the other hand, the RAS is a server that is dedicated to


handling users who are not on a Local Area Network (LAN) but
need remote access to it. And owing to its function, no restrictions
are imposed on the IP address of the RAS. Thus, in the instances
when the respondent simulated the IP address of the RAS, he not
only jeopardized the accessibility of the GSIS network to outside
users, he also gained access to the entire GSIS network and its
other resources, including the internet, which would have
otherwise been prohibited to him. Simply put, the respondent
breached the barriers that were put in place to protect the network
and its other resources from unauthorized incursions when he
simulated the RAS IP address.

xxx.

Mayordomo moved for reconsideration of the decision against him arguing


against the unfairness and severity of his dismissal. [18] He argued that his act of
changing his IP address was in no way a flagrant disregard of an established rule,
not only because no policy penalizing the act existed at that time he committed it,
but because his reason for doing so even redounded to the benefit of the
GSIS. Simply put, absent were the elements of corruption and the clear intent to
violate a law on his part and only the motivation to accomplish his task reigned
upon his judgment.

In its Resolution dated July 18, 2007,[19] GSIS denied the motion for lack of
merit. It explained that the nonexistence of a policy prohibiting the unauthorized
changing of IP addresses might relieve Mayordomo from an administrative offense
of violation of reasonable office rules and regulations, his actions and its effects on
the GSIS network system fall within the ambit of grave misconduct xxx [T]he
assignment of, alteration or changing of IP addresses is vested solely on the
ITSG. Respondent not being a member of the ITSG clearly had no authority to
alter his IP address, whatever may have been his justification for doing so.

On September 14, 2007, Mayordomo filed an appeal[20] with the Civil


Service Commission (CSC) which dismissed it in Resolution 080713,[21] for failure
to comply with the indispensable requirements under Section 46 of the Uniform
Rules on Administrative Cases in the Civil Service.[22] On reconsideration,
however, the CSC ruled on the merits of the case and affirmed the findings of the
GSIS, thus:

WHEREFORE, the Motion for Reconsideration of Arwin T.


Mayordomo, Accounts Management Specialist, Fund
Management Accounting Department, Government Service
Insurance System (GSIS), is hereby DENIED for lack of merit.
Accordingly, Civil Service Commission (CSC) Resolution No. 08-
0713 dated April 21, 2008 STANDS.[23]

The CSC rejected Mayordomos defense of good faith in view of the


previous verbal warnings he received. By changing the IP address of his personal
computer for the second time, after notice of its hazardous effects to the system,
Mayordomo committed an act that was inherently wrong. According to the CSC:

A perusal of the Motion for Reconsideration shows that


Mayordomo did not present new evidence which would materially
affect the subject Resolution. xxx Movant has the repetitive
averments that there was no existing company policy that
prohibited GSIS employees from changing their IP addresses, and
as such, there was no clear-cut penalty for the said offense; that by
changing his IP address, he was in good faith and meant no harm
to the GSIS; that his acts do not constitute Grave Misconduct.

To these, the Commission emphasizes that in the first place,


the act which Mayordomo committed was one that is inherently
wrong. Moreover, the express warning and prohibition given by
the GSIS officials when he was first caught changing his IP
address is and constitutes the rule that obviously made the act he
committed, prohibited.
xxx

Further, since the same act/s undoubtedly caused undue


prejudice to the government, in the sense that it exposed the GSIS
system to immense risk, movant is correctly found likewise guilty
of Conduct Prejudicial to the Best Interest of the Service. But since
this second offense has a lighter penalty, such is subsumed under
the more grievous offense of Grave Misconduct, which is
punishable with the supreme administrative penalty of dismissal.
[24]

Undaunted, Mayordomo elevated the case to the CA by way of a petition for


review under Rule 43 of the Rules of Court. Mayordomo argued that the above
CSC Resolutions were issued with grave abuse of discretion amounting to lack or
in excess of jurisdiction. He reiterated his arguments before the GSIS and the CSC,
as follows: that he did not commit so grave an offense to warrant his dismissal
from service; that the GSIS miserably failed to present evidence showing illwill or
bad faith on his part; that his act of changing his IP address was not punishable
because no existing company policy was in effect at that time and, in fact, it was
only nine months after his act was complained of, when the GSIS issued a
policy/guideline on the matter; that the Memorandum issued earlier by the Vice-
President of the Human Resource Office sufficiently served as his penalty for his
careless acts; and that granting that he should be penalized anew, his length of
service and work performance should be considered for him to merit a lighter
penalty than that of dismissal.

On July 31, 2009, the CA partly granted the petition.[25] According to the
appellate court, while Mayordomo failed to exercise prudence in resorting to
changing his IP address, it could not be said that this act was characterized by a
wrongful use of station or character to procure personal benefit contrary to duty
and rights of others. GSIS failed to prove that Mayordomo acted out of a sinister
motive in resorting to such acts or in order to gain a personal benefit therefrom.
The records would only show that Mayordomo did so when he was faced with the
conflict of his own IP address with others and the urgency of his office tasks. In
meting out this penalty for Simple and not Grave Misconduct, the CA took into
consideration Mayordomos length of service in the government and his fairly clean
record prior to the incident. The dispositive portion of the CA Decision thus reads:

WHEREFORE, the petition is PARTLY GRANTED.


Resolution No. 080713 and Resolution No. 081524 of the Civil
Service Commission are AFFIRMED with MODIFICATION.
Finding petitioner Arwin T. Mayordomo guilty of simple
misconduct this Court hereby imposes upon him the penalty of
suspension of one (1) month and one (1) day.

SO ORDERED.[26]

On reconsideration, the CA rejected Mayordomos prayer for payment of


backwages corresponding to the period of his preventive suspension. In its
Resolution dated February 5, 2010, the CA emphasized that Mayordomo was not
completely exonerated from liability for the act complained of. The offense was
merely downgraded from grave misconduct to simple misconduct. Therefore,
Mayordomos dismissal is deemed a preventive suspension pending his
appeal. Thus, he was not entitled to the payment of backwages and other benefits
during the said period.

Hence, this recourse by the petitioners ascribing serious errors on the part of
the CA in modifying the penalty imposed on Mayordomo:

I.

THE HONORABLE COURT OF APPEALS COMMITTED


ERROR IN DOWNGRADING THE OFFENSE TO SIMPLE
MISCONDUCT AS IT FAILED TO CONSIDER THE FACT THAT
RESPONDENT ALTERED HIS ASSIGNED IP ADDRESS NOT
ONLY ONCE BUT FOUR (4) TIMES, DESPITE WARNING.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT
ACCORDING RESPECT AND CREDIT TO THE FINDINGS OF
THE PETITIONERS AND THE CSC, WHICH WERE
SUPPORTED BY MORE THAN THE REQUIRED SUSTANTIAL
EVIDENCE.

The petitioners contend that Mayordomo, from the outset, had full
knowledge of the nature, purpose, and importance of an IP address and the dire
consequences of changing the same. In committing computer identity and capacity
theft,[27] Mayordomo is guilty of Grave Misconduct, and even Dishonesty, as
shown by substantial evidence. Hence, the CA erred in giving credence to his
assertion that his act of changing his IP address was not attended by corruption and
sinister motive, considering that he freely chose to traverse a tortuous path of
changing his IP address, to simply print a document for his alleged rush work.
While the latter task is simply akin to the goal of reaching Tibet from Nepal,
[28]
Mayordomo took the most difficult route, that of changing his IP address, and
worse, into the most powerful IP address in GSIS. For petitioners, Mayordomos
dubious motive is shown by his desire to get to the top, with all the privileges,
advantages and practically limitless vista of taking that topmost perch.[29]
For his part, Mayordomo reasons out that during the time when the GSIS FMAD
was in the peak of activities, he was constrained to alter his IP address because of
the failure of the ITSG to fix a conflict which effectively disrupted his work. He
claims to have no reason to cause harm to the system and to the GSIS in general,
because in the first place, he was not informed of the hazards of changing IP
addresses. It was only by November 10, 2005, or nine months after the incident,
when the GSIS issued a policy/ guideline[30] on the matter.

In administrative proceedings, the quantum of proof necessary for a finding


of guilt is substantial evidence or such relevant evidence as a reasonable mind may
accept as adequate to support a conclusion. Well-entrenched is the rule that
substantial proof, and not clear and convincing evidence or proof beyond
reasonable doubt, is sufficient as basis for the imposition of any disciplinary action
upon the employee. The standard of substantial evidence is satisfied where the
employer, has reasonable ground to believe that the employee is responsible for the
misconduct and his participation therein renders him unworthy of trust and
confidence demanded by his position.[31]
In this case, the attending facts and the evidence presented, point to no other
conclusion than the administrative liability of Mayordomo. The Code of Conduct
and Ethical Standards for Public Officials and Employees [32] enunciates the state
policy to promote a high standard of ethics in public service, and enjoins public
officials and employees to discharge their duties with utmost responsibility,
integrity and competence. Section 4 of the Code lays down the norms of conduct
which every public official and employee shall observe in the discharge and
execution of their official duties, specifically providing that they shall at all times
respect the rights of others, and refrain from doing acts contrary to law, good
morals, good customs, public policy, public order, and public interest. Thus, any
conduct contrary to these standards would qualify as conduct unbecoming of a
government employee.[33]

Here, Mayordomos act of having repeatedly changed his IP address without


authority, despite previous warnings, shows that he did not exercise prudence in
dealing with officework and his officemates.After the first warning he received
from the ITSG, Mayordomo should have realized that his unauthorized act brought
inconvenience, not only to a fellow employee, Liscano, but to the entire GSIS,
which was actually deprived of service from a paid employee. As if he did not
understand the repercussions of his act, he again toyed with his IP address and
deliberately ignored the importance of necessary clearance before engaging in any
extraordinary measure. Worse, he chose the RAS and gained access to the entire
GSIS network, putting the system in a vulnerable state of security. When
Mayordomo was alerted by the hazardous effects of using an IP address other than
his, he should have realized that, a fortiori, using a RAS IP address would expose
the GSIS system into a more perilous situation.

Indeed, prudence and good sense could have saved Mayordomo from his
current tribulation, but he was unfortunately stubborn to imbibe advice of
caution. His claim that he was obliged to change his IP address due to the inaction
of the ITSG in resolving the problem with his own IP address, cannot exonerate
him from responsibility. Obviously, choosing the RAS IP address to replace his
own was way too drastic from sensible conduct expected of a government
employee. Surely, there were other available means to improve his situation of
alleged hampered performance of duties for failure to access the system due to IP
conflict. Certainly, gaining access to the exclusive external trafficking route to the
GSIS computer system was not one of them.

The Court neither loses sight of the undisputed fact that Vice-President J.
Fernando U. Campanas Memorandum stated that the ITSG discovered
unauthorized and unnecessary downloaded programs in Mayordomos personal
computer when it was pulled out. Hence, despite his insistence that exigency was
his sole reason in altering his IP address, sheer common sense and evidence to the
contrary belie this.

Mayordomo likewise fails to convince the Court to adhere to his position


that the lack of official policy and guidelines at the time of commission makes the
act of unauthorized alteration of IP addresses exempt from punishment. While
official policy and guidelines apprise covered employees of offenses carrying
specific penalties, the Court may not close its eyes from the fact that actual notice
of the dangers of changing his IP address was made known to Mayordomo, right
after the first incident. The CSC was correct in holding that subsequent to the first
warning, Mayordomo was fully aware that changing his IP address without
acquiescence from the ITSG, was inherently wrong.

In the same vein, proof of the alleged damage caused by Mayordomos act to
the GSIS system and its use by the general public, is not necessary. The
inaccessibility, unnecessary interruption, and downtime to the GSIS network as
may be experienced by outside users, is obvious. Proof that the public was
inconvenienced in using the GSIS website is not necessary in order to conclude
that the unauthorized changing of IP address can produce pernicious effects to the
orderly administration of government services. It is well-settled that in
administrative cases, the injury sought to be remedied is not merely the loss of
public money or property. Acts that go against the established rules of conduct for
government personnel, [in this case, that of resorting to unauthorized and radical
solutions, without clearance from appropriate parties] bring harm to the civil
service, whether they result in loss or not. [34] This rule is in line with the purpose of
administrative proceedings, which is mainly to protect the public service, based on
the time-honored principle that a public office is a public trust.[35]
Albeit different in degree, both the CSC and the CA agree that Mayordomo
is guilty of misconduct in office. A long line of cases has defined misconduct as a
transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by the public officer. [36] Jurisprudence has
likewise firmly established that the misconduct is grave if it involves any of the
additional elements of corruption, willful intent to violate the law or to disregard
established rules, which must be proved by substantial evidence.[37]

To warrant dismissal from the service, the misconduct must be grave,


serious, important, weighty, momentous, and not trifling. The misconduct must
imply wrongful intention and not a mere error of judgment. [38] Corruption as an
element of grave misconduct consists in the act of an official or employee who
unlawfully or wrongfully uses her station or character to procure some benefit for
herself or for another, at the expense of the rights of others. Nonetheless, a person
charged with grave misconduct may be held liable for simple misconduct if the
misconduct does not involve any of the additional elements to qualify the
misconduct as grave. Grave misconduct necessarily includes the lesser offense of
simple misconduct.[39]

Based on the foregoing rule, the CA designated Mayordomos offense as


Simple Misconduct, on the ground that the elements particular to Grave
Misconduct were not adequately proven by the GSIS on which the burden of proof
lay. There being no clear and convincing evidence to show that Mayordomo
changed his IP address for personal or selfish needs, the CA found that his act
could not be said to have been tainted with corruption.

The Court is inclined to disagree with the CA not only in downgrading the
offense from Grave Misconduct to Simple Misconduct, but on the nature of the
offense charged itself. The Court indeed finds Mayordomo administratively liable,
but modifies the designation of the offense and the penalty imposed by the CA.
The Court has come to a determination that the administrative offense
committed by the respondent is not misconduct. To constitute misconduct, the act
or acts must have a direct relation to and be connected with the performance of
official duties.[40] The duties of Mayordomo as a member of the GSIS
FMAD surely do not involve the modification of IP addresses. The act was
considered unauthorized, precisely because dealing with the GSIS networks IP
addresses is strictly reserved for ITSG personnel who are expectedly
knowledgeable in this field. In Manuel v. Calimag, Jr.,[41] the Court emphatically
ruled:

In order to be considered as misconduct, the act must have


a direct relation to and be connected with the performance of his
official duties amounting either to maladministration or willful,
intentional neglect or failure to discharge the duties of the
office. Misconduct in office has been authoritatively defined by
Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in
office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his
performance of his duties as an officer and not such only as affects
his character as a private individual. In such cases, it has been
said at all times, it is necessary to separate the character of the
man from the character of the officer x x x x It is settled that
misconduct, misfeasance, or malfeasance warranting removal
from office of an officer must have direct relation to and be
connected with the performance of official duties amounting
either to maladministration or willful, intentional neglect and
failure to discharge the duties of the office x x x More specifically,
in Buenaventura v. Benedicto, an administrative proceeding
against a judge of the court of first instance, the present Chief
Justice defines misconduct as referring to a transgression of some
established and definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer. [Emphasis ours,
citations excluded]

In Cabalitan v. Department of Agrarian Reform,[42] the Court sustained the


ruling of the CSC that the offense committed by the employee in selling fake
Unified Vehicular Volume Program exemption cards to his officemates during
office hours was not grave misconduct, but conduct prejudicial to the best interest
of the service. In Mariano v. Roxas,[43] the Court held that the offense committed by
a CA employee in forging some receipts to avoid her private contractual
obligations, was not misconduct but conduct prejudicial to the best interest of the
service because her acts had no direct relation to or connection with the
performance of her official duties.

Accordingly, the complained acts of respondent Mayordomo constitute the


administrative offense of Conduct Prejudicial to the Best Interest of the Service,
which need not be related to or connected with the public officers official
functions. As long as the questioned conduct tarnishes the image and integrity of
his/her public office, the corresponding penalty may be meted on the erring public
officer or employee.[44] Under the Civil Service law and rules, there is no concrete
description of what specific acts constitute the grave offense of Conduct
Prejudicial to the Best Interest of the Service. Jurisprudence, however, is
instructive on this point. The Court has considered the following acts or
omissions, inter alia, as Conduct Prejudicial to the Best Interest of the Service:
misappropriation of public funds, abandonment of office, failure to report back to
work without prior notice, failure to safe keep public records and property, making
false entries in public documents and falsification of court orders. [45] The Court
also considered the following acts as conduct prejudicial to the best interest of the
service, to wit: a Judges act of brandishing a gun and threatening the complainants
during a traffic altercation; a court interpreters participation in the execution of a
document conveying complainants property which resulted in a quarrel in the
latters family.[46]

Conduct Prejudicial to the Best Interest of the Service is classified as a grave


offense under Section 22(t) of the Omnibus Rules Implementing Book V of
Executive Order No. 292 and Other Pertinent Civil Service Laws, with a
corresponding penalty of suspension for six (6) months and one (1) day to one (1)
year for the first offense, and the penalty of dismissal for the second offense.
As this is Mayordomos first case, he should be meted the penalty of six (6)
months and one (1) day.

As a final word, the Court makes clear that when an officer or employee is
disciplined, the object sought is not the punishment of that officer or employee, but
the improvement of the public service and the preservation of the publics faith and
confidence in the government.[47] The respondent is reminded that the Constitution
stresses that a public office is a public trust and public officers must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives. These
constitutionally-enshrined principles, oft-repeated in our case law, are not mere
rhetorical flourishes or idealistic sentiments. They should be taken as working
standards by all in the public service.[48]

WHEREFORE, the July 31, 2009 Decision of the Court of Appeals in CA-
G.R. SP No. 105414 affirming with modification Resolution No. 080713 and
Resolution No. 081524 of the Civil Service Commission, finding the respondent
guilty of simple misconduct is REVERSED and SET ASIDE. Respondent Arwin
T. Mayordomo is declared GUILTY of Conduct Prejudicial to the Best Interest of
the Service and is suspended from service for six (6) months and one (1) day.

SO ORDERED.

THE CIVIL SERVICE G.R. No. 187858


COMMISSION,
Petitioner, Present:
CORONA, C.J.,

CARPIO,
VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

- versus - BERSAMIN,

DEL CASTILLO,*

ABAD,**

VILLARAMA, JR.,

PEREZ,

MENDOZA,** and

SERENO, JJ.

Promulgated:

RICHARD G. CRUZ,

Respondent. AUGUST 9, 2011

x---------------------------------------------------------------------------------------x

DECISION

BRION, J.:

This petition for review on certiorari assails the decision[1] and the
resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 105410. These assailed
CA rulings reversed and set aside the ruling of the Civil Service Commission
(CSC) in Resolution No. 080305[3] that denied respondent Richard G. Cruzs prayer
for the award of back salaries as a result of his reinstatement to his former
position.

THE FACTS

The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was
charged with grave misconduct and dishonesty by CMWD General Manager (GM)
Nicasio Reyes. He allegedly uttered a false, malicious and damaging statement
(Masasamang tao ang mga BOD at General Manager) against GM Reyes and the
rest of the CMWD Board of Directors (Board); four of the respondents
subordinates allegedly witnessed the utterance. The dishonesty charge, in turn,
stemmed from the respondents act of claiming overtime pay despite his failure to
log in and out in the computerized daily time record for three working days.

The respondent denied the charges against him. On the charge of grave
misconduct, he stressed that three of the four witnesses already retracted their
statements against him. On the charge of dishonesty, he asserted that he never
failed to log in and log out. He reasoned that the lack of record was caused by
technical computer problems. The respondent submitted documents showing that
he rendered overtime work on the three days that the CMWD questioned.

GM Reyes preventively suspended the respondent for 15 days. Before the


expiration of his preventive suspension, however, GM Reyes, with the approval of
the CMWD Board, found the respondent guilty of grave misconduct and
dishonesty, and dismissed him from the service.[4]
CSC RULING

The respondent elevated the findings of the CMWD and his dismissal to the CSC,
which absolved him of the two charges and ordered his reinstatement. In CSC
Resolution No. 080305, the CSC found no factual basis to support the charges of
grave misconduct and dishonesty.

In ruling that the respondent was not liable for grave misconduct, the CSC
held:

Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning
statements, MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER. However, such
utterance, even if it were true, does not constitute a flagrant disregard of rule or was
actuated by corrupt motive. To the mind of the Commission, it was a mere expression of
disgust over the management style of the GM and the Board of Directors, especially
when due notice is taken of the fact that the latter officials were charged with the
Ombudsman for various anomalous transactions.[5]

In ruling that the charge of dishonesty had no factual basis, the CSC
declared:

Based on the records of the case, the Commission is not swayed that the failure of Cruz
to record his attendance on April 21 and 22, 2007 and May 5, 2007, while claiming
overtime pay therefor, amounts to dishonesty. Cruz duly submitted evidence showing his
actual rendition of work on those days. The residents of the place where he worked
attested to his presence thereat on the days in question. [6]
The CSC, however, found the respondent liable for violation of reasonable
office rules for his failure to log in and log out. It imposed on him the penalty of
reprimand but did not order the payment of back salaries.

The CMWD and the respondent separately filed motions for reconsideration
against the CSC ruling. CMWD questioned the CSCs findings and the respondents
reinstatement. The respondent, for his part, claimed that he is entitled to back
salaries in light of his exoneration from the charges of grave misconduct and
dishonesty. The CSC denied both motions.

Both the CMWD and the respondent elevated the CSC 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 ruling has lapsed to finality. [7] Hence, the
issue of reinstatement is now a settled matter. As outlined below, the CA ruled in
the respondents favor on the issue of back salaries. This ruling is the subject of the
present petition with us.

CA RULING

Applying the ruling in Bangalisan v. Hon. CA,[8] the CA found merit in the
respondents appeal and awarded him back salaries from the time he was
dismissed up to his actual reinstatement. The CA reasoned out that CSC
Resolution No. 080305 totally exonerated the respondent from the charges laid
against him. The CA considered the charge of dishonesty successfully refuted as
the respondent showed that he performed overtime service. The CA thereby
rejected the CSCs contention that the charge of dishonesty had been merely
downgraded to a lesser offense; the CA saw the finding in CSC Resolution No.
080305 to be for an offense (failing to properly record his attendance) entirely
different from the dishonesty charge because their factual bases are different.
Thus, to the CA, CSC Resolution No. 080305 did not wholly restore the
respondents rights as an exonerated employee as it failed to order the payment of
his back salaries. The CA denied the CSCs motion for reconsideration.

ISSUE

WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER THE


CSC ORDERED HIS REINSTATEMENT TO HIS FORMER POSITION, CONSONANT WITH
THE CSC RULING THAT HE WAS GUILTY ONLY OF VIOLATION OF REASONABLE OFFICE
RULES AND REGULATIONS.[9]

CSCs position

The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring
as a condition for entitlement to back salaries that the government employee be
found innocent of the charge and that the suspension be unjustified. CSC
Resolution No. 080305 did not fully exculpate the respondent but found him liable
for a lesser offense. Likewise, the respondents preventive suspension pending
appeal was justified because he was not exonerated.

The CSC also submits that the factual considerations in Bangalisan are entirely
different from the circumstances of the present case. In Bangalisan, the
employee, Rodolfo Mariano, a public school teacher, was charged with grave
misconduct for allegedly participating, together with his fellow teachers, in an
illegal mass action. He was ordered exonerated from the misconduct charge
because of proof that he did not actually participate in the mass action, but was
absent from work for another reason. Although the employee was found liable for
violation of office rules and regulations, he was considered totally exonerated
because his infraction stemmed from an act entirely different (his failure to file a
leave of absence) from the act that was the basis of the grave misconduct charge
(the unjustified abandonment of classes to the prejudice of the students).

The CSC argues that in the present case, the charge of dishonesty and the
infraction committed by the respondent stemmed from a single act his failure to
properly record his attendance. Thus, the respondent cannot be considered totally
exonerated; the charge of dishonesty was merely downgraded to a violation of
reasonable office rules and regulations.

Accordingly, the CSC posits that the case should have been decided according to
our rulings in Jacinto v. CA[10] and De la Cruz v. CA[11] where we held the award of
back salaries to be inappropriate because the teachers involved were not fully
exonerated from the charges laid against them.

The respondents position

The respondent maintains that he is entitled to reinstatement and back salaries


because CSC Resolution No. 080305 exonerated him from the charges laid against
him; for the purpose of entitlement to back salaries, what should control is his
exoneration from the charges leveled against him by the CMWD. That the
respondent was found liable for a violation different from that originally charged is
immaterial for purposes of the back salary issue.
The respondent also asserts that the Bangalisan ruling squarely applies since the
CSC formally admitted in its Comment to CMWDs petition for review before the
CA that the penalty of reprimand is not a reduced penalty for the penalty of
dismissal imposable for grave misconduct and dishonesty.[12]

THE COURTS RULING

We deny the petition for lack of merit.

The issue of entitlement to back salaries, for the period of suspension


pending appeal,[13] of a government employee who had been dismissed but was
subsequently exonerated is settled in our jurisdiction. The Courts starting point for
this outcome is the no work-no pay principle public officials are only entitled to
compensation if they render service. We have excepted from this general principle
and awarded back salaries even for unworked days to illegally dismissed or
unjustly suspended employees based on the constitutional provision that no
officer or employee in the civil service shall be removed or suspended except for
cause provided by law;[14] to deny these employees their back salaries amounts to
unwarranted punishment after they have been exonerated from the charge that
led to their dismissal or suspension.[15]

The present legal basis for an award of back salaries is Section 47, Book V of
the Administrative Code of 1987.

Section 47. Disciplinary Jurisdiction. x x x.


(4) An appeal shall not stop the decision from being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under
preventive suspension during the pendency of the appeal in the event he wins an appeal.
(italics ours)

This provision, however, on its face, does not support a claim for back salaries
since it does not expressly provide for back salaries during this period; our
established rulings hold that back salaries may not be awarded for the period
of preventive suspension[16] as the law itself authorizes its imposition so that its
legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an
employee may be entitled to back salaries: a) the employee must be found
innocent of the charges and b) his suspension must be unjustified.[17] The
reasoning behind these conditions runs this way: although an employee is
considered under preventive suspension during the pendency of a successful
appeal, the law itself only authorizes preventive suspension for a fixed period;
hence, his suspension beyond this fixed period is unjustified and must be
compensated.

The CSCs rigid and mechanical application of these two conditions may have
resulted from a misreading of our rulings on the matter; hence, a look at our
jurisprudence appears in order.

Basis for award of back salaries


The Court had the occasion to rule on the issue of entitlement to back
salaries as early as 1941,[18] when Section 260 of the Revised Administrative Code
of 1917 (RAC)[19] was the governing law. The Court held that a government
employee, who was suspended from work pending final action on his
administrative case, is not entitled to back salaries where he was ultimately
removed due to the valid appointment of his successor. No exoneration or
reinstatement, of course, was directly involved in this case; thus, the question of
back salaries after exoneration and reinstatement did not directly arise. The Court,
however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation


if he has not rendered any service, and the justification for the payment of
salary during the period of suspension is that the suspension was
unjustified or that the official was innocent. Hence, the requirement that, to
entitle to payment of salary during suspension, there must be either reinstatement
of the suspended person or exoneration if death should render reinstatement
impossible.[20] (emphasis and underscoring ours)

In Austria v. Auditor General,[21] a high school principal, who was penalized


with demotion, claimed payment of back salaries from the time of his suspension
until his appointment to the lower position to which he was demoted. He argued
that his later appointment even if only to a lower position of classroom teacher
amounted to a reinstatement under Section 260 of the RAC. The Court denied his
claim, explaining that the reinstatement under Section 260 of the RAC refers to
the same position from which the subordinate officer or employee was suspended
and, therefore, does not include demotional appointments. The word
reinstatement was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and


Fojas interpreting the same provision, the Court first laid down the requisites for
[22]

entitlement to back salaries. Said the Court:


A perusal of the decisions of this Court [23] x x x show[s] that back salaries are
ordered paid to an officer or an employee only if he is exonerated of the
charge against him and his suspension or dismissal is found and declared to
be illegal. In the case at bar, [the employee] was not completely exonerated,
because although the decision of the Commissioner of Civil Service [ordering
separation from service] was modified and [the employee] was allowed to be
reinstated, the decision [imposed upon the employee the penalty of two months
suspension without pay]. [emphasis and underscoring ours]

Obviously, no exoneration actually resulted and no back salary was due; the
liability for the offense charged remained, but a lesser penalty was imposed.

In Villamor, et al. v. Hon. Lacson, et al., [24] the City Mayor ordered the
dismissal from the service of city employees after finding them guilty as charged.
On appeal, however, the decision was modified by considering the suspension of
over one year x x x, already suffered x x x [to be] sufficient punishment [25] and by
ordering their immediate reinstatement to the service. The employees thereupon
claimed that under Section 695 of the RAC, the punishment of suspension without
pay cannot exceed two (2) months. Since the period they were not allowed to
work until their reinstatement exceeded two months, they should be entitled to
back salaries corresponding to the period in excess of two months. In denying the
employees claim for back salaries, the Court held:

The fallacy of [the employees] argument springs from their assumption that the
modified decision had converted the penalty to that of suspension. The modified
decision connotes that although dismissal or resignation would be the proper
penalty, the separation from work for the period until their reinstatement, would
be deemed sufficient. Said decision did not, in the least, insinuate that suspension
should have been the penalty.

x x x [T]he modified decision did not exonerate the petitioners. x x x


And even if we consider the punishment as suspension, before a public official or
employee is entitled to payment of salaries withheld, it should be shown that the
suspension was unjustified or that the employee was innocent of the charges
proffered against him.[26]

On the whole, these rulings left the application of the conditions for the
award of back salaries far from clear. Jurisprudence did not strictly observe the
requirements earlier enunciated in Gonzales as under subsequent rulings, the
innocence of the employee alone served as basis for the award of back salaries.

The innocence of the employee as sole basis for


an award of back salaries

In Tan v. Gimenez, etc., and Aguilar, etc.,[27] we ruled that the payment of
back salary to a government employee, who was illegally removed from office
because of his eventual exoneration on appeal, is merely incidental to the ordered
reinstatement.

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
superiors to reinstate him and to pay his back salaries from the date of his
suspension to the date of his actual reinstatement. We found merit in his plea and
held:

[The employee] had been acquitted of the criminal charges x x x, and the
President had reversed the decision x x x in the administrative case which ordered
his separation from the service, and the President had ordered his reinstatement to
his position, it results that the suspension and the separation from the service of
the [employee] were thereby considered illegal. x x x.

x x x [In this case,] by virtue of [the Presidents order of reinstatement],


[the employees] suspension and separation from the service x x x was thereby
declared illegal, so that for all intents and purposes he must be considered as not
having been separated from his office. The lower court has correctly held that the
[employee] is entitled to back salaries.[29]

The Taala ruling was reiterated in Cristobal v. Melchor,[30] Tan, Jr. v. Office of
the President,[31] De Guzman v. CSC[32] and Del Castillo v. CSC[33] - cases involving
government employees who were dismissed after being found administratively
liable, but who were subsequently exonerated on appeal.

In Garcia v. Chairman Commission on Audit,[34] the Court held that where


the employee, who was dismissed after being found administratively liable for
dishonesty, was acquitted on a finding of innocence in the criminal case (for
qualified theft) based on the same acts for which he was dismissed the executive
pardon granted him in the administrative case (in light of his prior acquittal)
entitled him to back salaries from the time of his illegal dismissal up to his actual
reinstatement.

The above situation should be distinguished from the case of an employee


who was dismissed from the service after conviction of a crime and who was
ordered reinstated after being granted pardon. We held that he was not entitled
to back salaries since he was not illegally dismissed nor acquitted of the charge
against him.[35]

Incidentally, under the Anti-Graft and Corrupt Practices Act, [36] if the public
official or employee is acquitted of the criminal charge/s specified in the law, he is
entitled to reinstatement and the back salaries withheld during his
suspension, unless in the meantime administrative proceedings have been filed
against him.

In Tan, Jr. v. Office of the President,[37] the Court clarified that the silence of
Section 42 (Lifting of Preventive Suspension Pending Administrative
Investigation) of the Civil Service Decree[38] on the payment of back salaries, unlike
its predecessor,[39] is no reason to deny back salaries to a dismissed civil servant
who was ultimately exonerated.

Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not
cover dismissed civil servants who are ultimately exonerated and ordered reinstated to
their former or equivalent positions. The rule in the latter instance, just as we have said
starting with the case of Cristobal vs. Melchor is that when "a government official or
employee in the classified civil service had been illegally dismissed, and his
reinstatement had later been ordered, for all legal purposes he is considered as not
having left his office, so that he is entitled to all the rights and privileges that accrue to
him by virtue of the office that he held." [40]

These cited cases illustrate that a black and white observance of the requisites
in Gonzales is not required at all times. The common thread in these cases is
either the employees complete exoneration of the administrative charge against
him (i.e., the employee is not found guilty of any other offense), or the employees
acquittal of the criminal charge based on his innocence. If the case presented falls
on either of these instances, the conditions laid down in Gonzales become the
two sides of the same coin; the requirement that the suspension must be
unjustified is automatically subsumed in the other requirement of exoneration.

Illegal suspension as sole basis for an award of


back salaries

By requiring the concurrence of the two conditions, Gonzales apparently


made a distinction between exoneration and unjustified suspension/dismissal.
This distinction runs counter to the notion that if an employee is exonerated, the
exoneration automatically makes an employees suspension unjustified. However,
in Abellera v. City of Baguio, et al.,[41] the Court had the occasion to illustrate the
independent character of these two conditions so that the mere illegality of an
employees suspension could serve as basis for an award of back salaries.

Abellera, a cashier in the Baguio City Treasurers Office, was ordered


dismissed from the service after being found guilty of dishonesty and gross
negligence. Even before the period to appeal expired, the City of Baguio dismissed
him from the service. On appeal, however, the penalty imposed on him was
reduced to two months suspension, without pay although the appealed decision
was affirmed in all other respects.

When the issue of Abelleras entitlement to back salaries reached the Court,
we considered the illegality of Abelleras 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 salaries.

The rule on payment of back salaries during the period of suspension of a


member of the civil service who is subsequently ordered reinstated, is already
settled in this jurisdiction. Such payment of salaries corresponding to the period
when an employee is not allowed to work may be decreed not only if he is found
innocent of the charges which caused his suspension (Sec. 35, RA 2260), but also
when the suspension is unjustified.

In the present case, upon receipt of the [Civil Service Commissioners]


decision x x x finding [Abellera] guilty, but even before the period to appeal had
expired, [the Baguio City officials] dismissed [Abellera] from the service and
another one was appointed to replace him. [Abelleras] separation x x x before
the decision of the Civil Service Commissioner had become final was
evidently premature. [The Baguio City officials] should have realized that
[Abellera] still had the right to appeal the Commissioner's decision to the Civil
Service Board of Appeals within a specified period, and the possibility of that
decision being reversed or modified.[42] As it did happen on such appeal x x x the
penalty imposed by the Commissioner was reduced x x x to only 2 months
suspension. And yet, by [the Baguio City officials] action, [Abellera] was
deprived of work for more than 2 years. Clearly, Abelleras second suspension
from office [i.e., from the time he was dismissed up to his actual
reinstatement] was unjustified, and the payment of the salaries corresponding
to said period is, consequently, proper.[43](emphases and underscoring ours)

The import of the Abellera ruling was explained by the Court in the
subsequent case of Yarcia v. City of Baguio[44] that involved substantially similar
facts. The Court clarified that the award of back salaries in Abellera was based on
the premature execution of the decision (ordering the employees dismissal from
the service), resulting in the employees unjustified second suspension. Under the
then Civil Service Rules, the Commissioner of Civil Service had the discretion to
order the immediate execution of his decision in administrative cases in the
interest of public service. Unlike in Abellera, this discretion was exercised
in Yarcia; consequently, the employees separation from the service pending his
appeal remained valid and effective until it was set aside and modified with the
imposition of the lesser penalty.[45]

The unjustified second suspension mentioned in Abellera actually refers to


the period when the employee was dismissed from the service up to the time of
his actual reinstatement. Under our present legal landscape, this period refers to
suspension pending appeal.[46]

In Miranda v. Commission on Audit,[47] the Court again had the occasion to


consider the illegality of the suspension of the employee as a separate ground to
award back salaries. Following the filing of several administrative charges against
him, Engr. Lamberto Miranda was preventively suspended from June 2,
1978 to May 7, 1986. He was reinstated on May 22, 1986. On October 7, 1986, the
administrative case against him was finally dismissed for lack of evidence. When
his claim for back salaries (from the time he was preventively suspended up to his
actual reinstatement) was denied by the Commission on Audit, he brought
a certiorari petition with this Court.

In granting the petition, the Court ruled that since the law [48] limits the
duration of preventive suspension to a fixed period, Engr. Mirandas suspension for
almost eight (8) years is unreasonable and unjustified. Additionally, the Court
observed that the dropping of the administrative case against Engr. Miranda for
lack of evidence is even an eloquent manifestation that the suspension is
unjustified.[49] The Court held:

This being so, Engineer Miranda is entitled to backwages during the period of his
suspension as it is already settled in this jurisdiction that a government official or
employee is entitled to backwages not only if he is exonerated in the
administrative case but also when the suspension is unjustified.[50] (emphases and
underscoring ours)

Jurisprudential definition of exoneration


The mere reduction of the penalty on appeal does not entitle a government
employee to back salaries if he was not exonerated of the charge against him. This
is the Courts teaching in City Mayor of Zamboanga v. CA.[51] In this case, the
employee was initially found guilty of disgraceful and immoral conduct and was
given the penalty of dismissal by the City Mayor of Zamboanga. On appeal,
however, the CA limited the employees guilt to improper conduct and
correspondingly reduced the penalty to six-months suspension without pay with a
stern warning that repetition of the same or similar offense will be dealt with
more severely."[52] The CA also awarded him full backwages.[53]

We held that the CA erred in awarding back salaries by reiterating the


principle that back salaries may be ordered paid to an officer or employee only if
he is exonerated of the charge against him and his suspension or dismissal is
found and declared to be illegal.[54]

The Court had the occasion to explain what constitutes exoneration


in Bangalisan v. Hon. CA,[55] the respondents cited case. In this case, the Secretary
of Education found the public school teachers guilty as charged and imposed on
them the penalty of dismissal. On appeal, the CSC affirmed the Secretarys ruling
but reduced the penalty imposed to suspension without pay. However, the CSC
found one of the teachers (Mariano) guilty only of violation of reasonable office
rules and regulations, and only penalized her with reprimand. None of the
petitioning public school teachers were awarded back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We


explained that since the factual premise of the administrative charges against him
- i.e., his alleged participation in the illegal mass actions, and his suspension - was
amply rebutted, then Mariano was in effect exonerated of the charges against him
and was, thus, entitled to back salaries for the period of his suspension pending
appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in


order. A reading of the resolution of the [CSC] will show that he was exonerated of the
charges which formed the basis for his suspension. The Secretary of the DECS charged
him with and he was later found guilty of grave misconduct x x x [and] conduct
prejudicial to the best interest of the service x x x for his participation in the mass
actions x x x. It was his alleged participation in the mass actions that was the basis of his
preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that
Mariano was not involved in the "mass actions" but was absent because he was in Ilocos
Sur to attend the wake and interment of his grandmother. Although the CSC imposed
upon him the penalty of reprimand, the same was for his violation of reasonable office
rules and regulations because he failed to inform the school or his intended absence and
neither did he file an application for leave covering such absences.

xxxx

However, with regard to the other petitioners, the payment of their back wages
must be denied. Although the penalty imposed on them was only suspension, they were
not completely exonerated of the charges against them. The CSC made specific findings
that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be
noted that it was their participation in the mass actions that was the very basis of the
charges against them and their subsequent suspension. [56]

Bangalisan clearly laid down the principle that if the exoneration of the
employee is relative (as distinguished from complete exoneration), an inquiry into
the factual premise of the offense charged and of the offense committed must be
made. If the administrative offense found to have been actually committed is of
lesser gravity than the offense charged, the employee cannot be considered
exonerated if the factual premise for the imposition of the lesser penalty remains
the same. The employee found guilty of a lesser offense may only be entitled to
back salaries when the offense actually committed does not carry the penalty of
more than one month suspension or dismissal.[57]

Bangalisan reiterated that the payment of back salaries, during the period
of suspension of a member of the civil service who 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
pronouncement was re-echoed in Jacinto v. CA,[58] De la Cruz v. CA,[59] and Hon.
Gloria v. CA.[60]Taking off from Bangalisan, the Court in De la Cruz categorically
stated:

The issue of whether back wages may be awarded to teachers ordered


reinstated to the service after the dismissal orders x x x were commuted by the
CSC to six (6) months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the


ground that the teachers were neither exonerated nor unjustifiably suspended, two (2)
circumstances necessary for the grant of back wagesin administrative disciplinary cases.
[61]

In Hon. Gloria, involving the same factual situation as Bangalisan, the CA


awarded the public school teachers back salaries - for the period beyond the
allowable period of preventive suspension - since they were ultimately
exonerated. In affirming the CA, the Court
distinguished preventive suspension from suspension pending appeal for the
purpose of determining the extent of an employees entitlement to back salaries.
The Court ruled that under Executive Order (E.O.) No. 292, there are two kinds of
preventive suspension of civil service employees who are charged with offenses
punishable by removal or suspension: (i) preventive suspension pending
investigation[62] and (ii) preventive suspension pending appeal;[63] compensation is
due only for the period of preventive suspension pending appeal should the
employee be ultimately exonerated.[64] Citing Floyd R. Mechem's A Treatise on the
Law of Public Offices and Officers,[65] Hon. Gloria ruled:

Thus, it is not enough that an employee is exonerated of the charges


against him. In addition, his suspension must be unjustified. The case
of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries
corresponding to the period [1] when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his
suspension and [2] when the suspension is unjustified. [66] (emphases and
underscoring ours)

A careful reading of these cases would reveal that a strict observance of the
second condition for an award of back salaries becomes important only if the
employee is not totally innocent of any administrative infraction. As previously
discussed, where the employee is completely exonerated of the
administrative charge or acquitted in the criminal case arising from the same facts
based on a finding of innocence, the second requirement becomes subsumed in
the first. Otherwise, a determination of the act/s and offense/s actually
committed and of the corresponding penalty imposed has to be made.
Unjustified suspension
On the suspension/dismissal aspect, this second condition is met upon a
showing that the separation from office is not warranted under the circumstances
because the government employee gave no cause for suspension or dismissal.
This squarely applies in cases where the government employee did not commit
the offense charged, punishable by suspension or dismissal (total exoneration); or
the government employee is found guilty of another offense for an act different
from that for which he was charged.

Bangalisan, Jacinto and De la Cruz illustrate

the application of the two conditions

Both the CA and the respondent applied Bangalisan to justify the award of back
salaries. The CSC argues against this position with the claim that the rulings
in Jacinto and De la Cruz, not Bangalisan, should apply. After due consideration,
we see no reason why the cited rulings and their application should be pitted
against one another; they essentially espouse the same conclusions after applying
the two conditions for the payment of back salaries.

Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions
of public school teachers in Metro Manila in 1990. The teachers were charged
with grave misconduct, gross neglect of duty, and gross violation of civil service
law, rules and regulations, among others. The then Secretary of Education found
them guilty and dismissed them from the service. The CSC, on appeal, ordered the
teachers reinstated, but withheld the grant of their back salaries. The CSC found
the teachers liable for conduct prejudicial to the best interest of the service
and imposed on them the penalty of suspension. The CSC reasoned that since the
teachers were not totally exculpated from the charge (but were found guilty of a
lesser offense), they could not be awarded back salaries.

When these cases reached the Court, the issue of the teachers entitlement
to back salaries was raised. The teachers claimed that they were entitled to back
salaries from the time of their dismissal or suspension until their reinstatement,
arguing that they were totally exonerated from the charges since they were found
guilty only of conduct prejudicial to the best interest of the service.

Under this factual backdrop, we applied the two conditions and


distinguished between the teachers who were absent from their respective
classes because they participated in the illegal mass action, on one hand, and the
teachers who were absent for some other reason, on the other hand.

With respect to the teachers who participated in the illegal mass actions,
we ruled that they were not entitled to back salaries since they were not
exonerated. We explained that liability for a lesser offense, carrying a penalty less
than dismissal, is not equivalent to exoneration. On the second condition, we
ruled that their suspension is not unjustified since they have given a ground for
their suspension i.e., the unjustified abandonment of their classes to the prejudice
of their students, the very factual premise of the administrative charges against
them for which they were suspended.

With respect to the teachers who were away from their classes but did not
participate in the illegal strike, the Court awarded them back salaries, considering
that: first, they did not commit the act for which they were dismissed and
suspended; and second, they were found guilty of another offense, i.e., violation
of reasonable office rules and regulations which is not penalized with suspension
or dismissal. The Court ruled that these teachers were totally exonerated of the
charge, and found their dismissal and suspension likewise unjustified since the
offense they were found to have committed only merited the imposition of the
penalty of reprimand.

These cases show the Courts consistent stand in determining the propriety
of the award of back salaries. The government employees must not only be found
innocent of the charges; their suspension must likewise be shown to be
unjustified.

The Present Case

We find that the CA was correct in awarding the respondent his back
salaries during the period he was suspended from work, following his dismissal
until his reinstatement to his former position. The records show that the charges
of grave misconduct and dishonesty against him were not substantiated. As the
CSC found, there was no corrupt motive showing malice on the part of the
respondent in making the complained utterance. Likewise, the CSC found that the
charge of dishonesty was well refuted by the respondents evidence showing that
he rendered overtime work on 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.

SO ORDERED.

SPOUSES CONSTANTINO G. R. No. 146933

ESPIRIDION and REMEDIOS

ESPIRIDION and SPOUSES


RENATO RAMOS and

ERLINDA RAMOS,

Petitioners, Present:

PUNO, J., Chairperson,


SANDOVAL-GUTIERREZ,

- v e r s u s - CORONA,

AZCUNA and
GARCIA, JJ.

COURT OF APPEALS and

SECOND BULACAN

DEVELOPMENT BANK,

Respondents. Promulgated:

June 8, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CORONA, J.:
This special civil action for certiorari under Rule 65 of the Rules of
Court assails the August 25, 2000 resolution [1] of the Court of
Appeals in CA-G.R. CV No. 66451 (1) granting the motion for writ of
execution/writ of possession pending appeal of private respondent
Second Bulacan Development Bank (SBDB) and (2) the September
20, 2000 resolution denying petitioners motion for reconsideration.

On April 30, 1999, SBDB filed an amended ex-parte petition


for issuance of writ of possession over a parcel of land [2] purchased
by SBDB in a public auction held on August 26, 1999. It was raffled
to Branch 148 of the Regional Trial Court (RTC) of Makati City and
docketed as Civil Case No. 99-443.

The ex-parte petition alleged that petitioners,


spouses Constantino Espiridion and Remedios Espiridion and
spouses Renato Ramos and Erlinda Ramos, mortgaged the subject
property to SBDB as security for a P4,200,000 loan. They failed to
comply with the terms and conditions of the mortgage, hence,
SBDB extrajudiciallyforeclosed the property. SBDB subsequently
acquired the property as the lone bidder in the public auction held
on August 26, 1997. Petitioners failed to redeem the property within
the one-year redemption period. As a consequence, ownership of
the property was consolidated in the name of SBDB.
Petitioners anchored their defense on the alleged nullity of the
extrajudicial foreclosure sale. They claimed that SBDB failed to
comply with several requirements of extrajudicial foreclosure: no
application for extrajudicial foreclosure was filed with the office of
the clerk of court of the RTC of Makati City; the docket fees were
not paid and no raffle of the publication of the notice of foreclosure
sale was made.

The trial court declared that it could not rule on the propriety
or validity of the foreclosure sale and, as such, presumed that the
extrajudicial foreclosure sale was done in a regular manner. It only
resolved the issue of SBDBs entitlement to a writ of possession.
Invoking the rule that the purchaser in a foreclosure sale of
mortgaged property is entitled to a writ of possession and that it is
ministerial on the court to issue such writ upon ex-parte petition by
the purchaser, the court a quo granted SBDBspetition.

Aggrieved, petitioners filed a notice of appeal and elevated the case


to the Court of Appeals. SBDB filed a motion for writ of
execution/writ of possession pending appeal which the appellate
court granted in its August 25, 2000 resolution. Petitioners moved
for its reconsideration but the same was denied. Hence, this
petition.
Petitioners claim that the Court of Appeals erred or gravely
abused its discretion in issuing the writ of execution/possession
pending appeal on two grounds: (a) the extrajudicial foreclosure sale
was void and (b) no justifiable basis was shown and no bond was
posted.

The petition has no merit.

No abuse of discretion may properly be imputed to the


appellate court. The issuance of a writ of possession to a purchaser
in a public auction is a ministerial act.After the consolidation of title
in the buyers name for failure of the mortgagor to redeem the
property, the writ of possession becomes a matter of right. [3] Its
issuance to a purchaser in an extrajudicial foreclosure sale is
merely a ministerial function. [4] The trial court has no discretion on
this matter.[5] Hence, any talk of discretion in connection with such
issuance is misplaced.

A clear line demarcates a discretionary act from a ministerial one.


Thus:

The distinction between a ministerial and discretionary act


is well delineated. A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such duty
is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of
official discretion or judgment.[6]

Clearly, the use of discretion and the performance of a ministerial


act are mutually exclusive.

Where the court acts on a matter that is within its jurisdiction,


grave abuse of discretion must be shown to nullify the act. In this
case, since the issuance of the writ of possession did not involve an
exercise of discretion, no abuse of discretion could have been
committed by the trial court. Thus, the instant petition for certiorari
has no leg to stand on.

The issue of nullity of the extrajudicial foreclosure sale was of


no moment. It could not bar the issuance of the writ of possession.
As a rule, any question regarding the validity of the mortgage or its
foreclosure is not a legal ground for refusing the issuance of a writ
of execution/writ of possession. [7]

The fact that no bond was posted by SBDB was also of no


consequence. Since ownership of the property had already been
consolidated in the name of the bank, there was nothing legally
questionable in the issuance of the writ of possession even if no
bond was posted. The posting of a bond as a condition for the
issuance of the writ of possession becomes necessary only if it is
applied for within one year from the registration of the sale with the
register of deeds, i.e., during the redemption period[8]inasmuch as
ownership has not yet vested on the creditor-mortgagee. After the
one-year period, however, the mortgagor loses all interest over it.
[9]
The purchaser, who has a right to possession that extends after
the expiration of the redemption period, becomes the absolute
owner of the property when no redemption is made. [10] Thus, the
posting of a bond is no longer needed. [11]

WHEREFORE, the petition is hereby DISMISSED.


Costs against petitioners.

SO ORDERED.

[G.R. No. 139382. December 6, 2000]

THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE


SECRETARY RONALDO B. ZAMORA, and ATTY. CARINA J.
DEMAISIP, petitioners, vs. ATTY. JOSEFINA G.
BACAL, respondent.
DECISION
MENDOZA, J.:

This case involves the appointment and transfer of career executive service officers
(CESOs). More specifically, it concerns the appointment of respondent Josefina G.
Bacal, who holds the rank of CESO III, to the position of Chief Public Attorney in the
Public Attorneys Office, which has a CES Rank Level I, and her subsequent transfer,
made without her consent, to the Office of the Regional Director of the PAO.
In its decision rendered on March 25, 1999, the Court of Appeals declared
[1]

respondent Josefina G. Bacal entitled to the position of Chief Public Attorney in the
Public Attorneys Office. Petitioners moved for a reconsideration, but their motion was
denied by the appeals court in its resolution dated July 22, 1999. Hence this petition for
review on certiorari. Petitioners contend that the transfer of respondent to the Office of
the Regional Director of the PAO is appropriate considering her rank as CESO III.
The background of this case is as follows:
Respondent Josefina G. Bacal passed the Career Executive Service Examinations
in 1989. On July 28, 1994, she was conferred CES eligibility and appointed Regional
Director of the Public Attorneys Office. On January 5, 1995, she was appointed by then
President Fidel V. Ramos to the rank of CESO III. On November 5, 1997, she was
designated by the Secretary of Justice as Acting Chief Public Attorney. On February 5,
1998, her appointment was confirmed by President Ramos so that, on February 20,
1998, she took her oath and assumed office.
On July 1, 1998, petitioner Carina J. Demaisip was appointed chief public defender
by President Joseph Estrada. Apparently because the position was held by respondent,
another appointment paper was issued by the President on July 6, 1998 designating
petitioner Demaisip as chief public defender (formerly chief public attorney), PUBLIC
DEFENDER'S OFFICE, DEPARTMENT OF JUSTICE vice ATTY. JOSEFINA G. BACAL,
effective July 1, 1998. On the other hand, respondent was appointed Regional Director,
[2]

Public Defenders Office by the President.


On July 7, 1998, petitioner Demaisip took her oath of office. President Estrada then
issued a memorandum, dated July 10, 1998, to the personnel of the Public Defenders
Office announcing the appointment of petitioner Demaisip as CHIEF PUBLIC
DEFENDER. Petitioner Secretary of Justice was notified of the appointments of
petitioner Demaisip and respondent Bacal on July 15, 1998.
On July 17, 1998, respondent filed a petition for quo warranto questioning her
replacement as Chief Public Attorney. The petition, which was filed directly with this
Court, was dismissed without prejudice to its refiling in the Court of
Appeals. Accordingly, respondent brought her case in the Court of Appeals which, on
March 25, 1999, ruled in her favor, finding her to be lawfully entitled to the Office of
Chief Public Attorney.
Petitioners seek the reversal of the decision of the Court of Appeals on the following
grounds
I. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT JOSEFINA G.
BACAL, A CAREER EXECUTIVE SERVICE OFFICER, HAS A VALID AND VESTED
RIGHT TO THE POSITION OF CHIEF PUBLIC ATTORNEY AND, AS SUCH,
CANNOT BE REASSIGNED OR TRANSFERRED TO THE POSITION OF
REGIONAL DIRECTOR, PUBLIC ATTORNEYS OFFICE, DEPARTMENT OF
JUSTICE.
II. THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT BACAL,
WHO HOLDS A CES RANK LEVEL III, WAS REASSIGNED OR TRANSFERRED
TO A POSITION WHICH DOES NOT CORRESPOND TO HER PRESENT RANK
LEVEL INASMUCH AS THE POSITION OF BUREAU REGIONAL DIRECTOR
CARRIES A CES RANK LEVEL V ONLY. CONTRARY TO THE CONCLUSIONS OF
THE COURT OF APPEALS, SAID POSITION OF REGIONAL DIRECTOR, PUBLIC
ATTORNEYS OFFICE, THE POSITION TO WHICH RESPONDENT BACAL WAS
REASSIGNED OR TRANSFERRED, CARRIES A CES RANK LEVEL III WHICH
CORRESPONDS TO HER CES RANK III LEVEL. AS AN OFFICER WITH A RANK
III LEVEL, RESPONDENT BACAL IS NOT THEREFORE ELIGIBLE FOR THE
POSITION OF CHIEF PUBLIC ATTORNEY WHICH CARRIES A CES RANK LEVEL
I.
III. UPON HER REASSIGNMENT OR TRANSFER TO THE POSITION OF REGIONAL
DIRECTOR, RESPONDENT BACAL DID NOT LOSE HER CES RANK III AND HER
RIGHT TO RECEIVE THE SALARY CORRES-PONDING TO HER PRESENT
RANK.
IV. RESPONDENT BACAL FAILED TO SHOW THAT SHE HAS A CLEAR RIGHT TO
THE POSITION OF CHIEF PUBLIC ATTORNEY.
V. RESPONDENT BACAL FAILED TO FULLY EXHAUST THE ADMINISTRATIVE
REMEDIES AVAILABLE TO HER BEFORE FILING THE PETITION FOR QUO
WARRANTO WITH THE COURT OF APPEALS.[3]

I. Exhaustion of Administrative Remedies

We first consider petitioners contention that respondents quo warranto suit should
have been dismissed for failure of respondent to exhaust administrative remedies by
appealing to the Office of the President.
The contention has no merit. If, as has been held, no appeal need be taken to the
Office of the President from the decision of a department head because the latter is in
theory the alter ego of the former, there is greater reason for not requiring prior resort
[4]

to the Office of the President in this case since the administrative decision sought to be
reviewed is that of the President himself. Indeed, we have granted review in other cases
involving the removal of the Administrator of the Philippine Overseas Employment
Administration and the Executive Director of the Land Transportation Office without
[5] [6]

requiring the petitioners to exhaust administrative remedies considering that the


administrative actions in question were those of the President.
In any event, the doctrine of exhaustion of administrative remedies does not apply
when the question raised is purely legal. In this case, the question is whether
[7]
respondents transfer to the position of Regional Director of the Public Attorneys Office,
which was made without her consent, amounts to a removal without cause. This brings
us to the main issue in this appeal.

II. Merits of the Case

In holding that respondents transfer amounted to a removal without cause, the


Court of Appeals said:

. . . Her appointment as Regional Director was in effect a removal in the guise


of transfer, to repeat, without her consent. Having been validly appointed
Chief Public Defender by the President on February 8, 1998, would naturally
entitle her to security of tenure since on the basis of the appointment, she was
appointed, not merely assigned, to a particular station. Her involuntary
transfer, through appointment, to that of a mere Regional Director, did not
either conform to the rules on the constitutional protection of security of
tenure. Above all, her supposed appointment as a Regional Director is not
only temporary but is on the other hand permanent wherein she lost her
position as Chief Public Attorney, or her connection with the previous position
being severed.

....

In the case of the petitioner, there is certainly a diminution in duties and


responsibilities when she was downgraded through the July 6, 1998
appointment, involuntarily made, from that of Chief Public Attorney to a mere
Regional Director. To repeat, the rank equivalent to a Bureau Director is Rank
III while that of a mere Bureau Regional Director is Rank V. Diminution in
duties and responsibilities, certainly becomes apparent and then in the matter
of salary, the basic salary of a Chief Public Attorney together with all the perks,
would amount to P575,199.00. In the case of a Regional Director, his basic
salary together with all the perks, would only amount to
P341,479.96. Admittedly, when a CESO is assigned or made to occupy a
position with a lower salary grade, he shall supposedly continue to be paid his
salary that attaches to his CES rank. It cannot, on the other hand, be denied
that the moment a non-CESO is appointed to a CES position, he shall receive,
at the same time, the salary of his CES position. There is merit in the
petitioners argument that allowing the Regional Director to receive
continuously the salary rate of Chief Public Attorney in effect would amount to
an illegal consequence since the disbursement of public funds, as budgeted,
provides funding for only one Chief Public Attorney. The dilemma arises when
both the petitioner and respondent Demaisip would be claiming the salary of a
Chief Public Attorney. There is no pretension either in the Brief of the public
respondents that there has been a supplemental budget for the petitioner, now
downgraded to a mere Regional Director, to be receiving continuously the
salary scale of a Chief Public Attorney.

....

Changing a CESO, Rank III, with a non-CESO eligible nor a CESO defies the
recruitment, selection and appointment process of the Career Executive
Service. As a matter of fact, as a rule (1997 Revised Edition,
Handbook, Career Executive Service), the appointment to most positions in
the CES is supposed to be made by the President only from the list of CES
eligibles, but recommended by the CES Board. Admittedly, an incumbent of a
CES position may qualify for appointment to a CES rank, only upon the
confirming of a CES Eligibility and compliance with the other requirements
being prescribed by the Board (Ibid. p. 5). Precisely, the CES was created
pursuant to PD No. 1 (adopting the Integrated Reorganizational Plan, dated
September 24, 1972), if only to form a continuing pool of well-selected and
development-oriented career administrators who shall provide competent and
faithful service (Ibid. p. 2). We cannot see this from that of the petitioner then
being replaced by a non-CESO. [8]

The appealed decision will not bear analysis.


First. What should be emphasized in this case is that respondent Josefina G. Bacal
is a CESO III and that the position of Regional Director of the PAO, to which she was
transferred, corresponds to her CES Rank Level III and Salary Grade 28. This was her
position before her appointment on February 5, 1998 to the position of Chief Public
Attorney of the PAO, which requires a CES Rank Level I for appointment
thereto. Respondent Bacal therefore has no ground to complain. She may have been
considered for promotion to Rank I to make her appointment as Chief Public Attorney
permanent. The fact, however, is that this did not materialize as petitioner Carina J.
Demaisip was appointed in her place. If respondent was paid a salary equivalent to
Salary Grade 30 while she was holding that office, it was only because, under the law, if
a CESO is assigned to a position with a higher salary grade than that corresponding to
his/her rank, he/she will be allowed the salary of the CES position.
As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig: [9]

It is settled that a permanent appointment can be issued only to a person who


meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed. Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being
so, it could be withdrawn at will by the appointing authority and at a moments
notice, conformably to established jurisprudence. . . .

The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of
it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him cannot be regarded
as permanent even if it may be so designated. . . .

It is contended, however, that respondent is qualified for the position of Chief Public
Attorney because this position has a CES Rank Level III, while that of Regional Director,
Public Attorneys Office, has a CES Rank Level V. This is not so. The position of Chief
Public Attorney has a CES Rank Level I and a Salary Grade 30, while that of Regional
Director of the PAO has a CES Rank Level III and a Salary Grade 28. This is shown by
the following:
[10]

1. Certification, dated April 6, 1999, issued by the Secretary of the Department of


Budget and Management (DBM), which states that the position of the head of Public
Attorneys Office (PAO) is classified as Chief Public Attorney at Salary Grade
30 (Annex A of Annex M, Petition).
2. Certification, dated April 15, 1999, issued by Elmor D. Juridico, then Executive
Director of the CES Board, which states that the Rank equivalent to the position of
Chief Public Attorney and Regional Public Attorney are CESO Rank I and CESO
Rank III respectively (Annex B of Annex M, Petition); and
3. Certification, dated July 8, 1998, previously issued to respondent Bacal by then
Executive Director Juridico of the CES Board, stating that the position of Chief
Public Attorney has a CES rank equivalent of Rank I. (vide Annex C of Annex M,
Petition). The certification reads:

This is to certify that Atty. JOSEFINA G. BACAL, Chief Public Attorney, Public
Attorneys Office was conferred CES Eligibility on July 28, 1994 per Board
Resolution No. 94-4620 and was appointed Career Executive Service Officer
(CESO) Rank III by then President Fidel V. Ramos on January 5, 1995. She is
yet to fulfill the requirements for an adjustment of her CES rank (from CES
Rank III to Rank I) to a level equivalent to her present position.

This certification is issued upon the request of Atty. Bacal for whatever
purpose it may serve best.
Second. The Court of Appeals held that respondent Bacal had acquired security of
tenure as Chief Public Attorney by the mere fact of her appointment to that
position. This is likewise the point of the dissent of Justice Gonzaga-Reyes who
contends that a CES eligibility is all that a person needs in order to acquire security of
tenure in any position embraced in the Career Executive service; that a CESO rank is
only necessary to differentiate a CESOs general managerial duties/responsibilities,
personal qualifications, and demonstrated competence; and that no other CES
examination is required for appointment to a higher rank.
Appointments, assignments, reassignments, and transfers in the Career Executive
Service are based on rank. On this point, the Integrated Reorganization Plan cannot be
any clearer. It provides:
[11]

c. Appointment. Appointment to appropriate classes in the Career Executive Service


shall be made by the President from a list of career executive eligibles
recommended by the Board. Such appointments shall be made on the basis of rank;
provided that appointments to the higher ranks which qualify the incumbents to
assignments as undersecretary and heads of bureaus and offices and equivalent
positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who holds a permanent
appointment to a position embraced in the Career Executive Service shall continue
to hold his position, but may not advance to a higher class of position in the Career
Executive Service unless or until he qualifies for membership in the Career
Executive Service.
....
e. Assignments, Reassignments and Transfers. Depending upon their ranks, members
of the Service shall be assigned to occupy positions of Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank
as may be identified by the Board on the basis of the members functional
expertise. . . .
The rules and regulations promulgated by the CES Board to implement the
[12]

Integrated Reorganization Plan are equally clear in providing that

Career Executive Service Eligibility

Passing the CES examination entitles the examinee to a conferment of a CES


eligibility and the inclusion of his name in the roster of CES
eligibles. Conferment of CES eligibility is done by the Board through a formal
Board Resolution after an evaluation of the examinees performance in the
four stages of the CES eligibility examinations.
....

Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the other


requirements prescribed by the Board, an incumbent of a CES position may
qualify for appointment to a CES rank. Appointment to a CES rank is made by
the President upon the recommendation of the Board. This process completes
the officials membership in the CES and most importantly, confers on him
security of tenure in the CES.

There are six (6) ranks in the CES ranking structure. The highest rank is that
of a Career Executive Service Officer I (CESO I), while the lowest is that of
CESO VI.

The appropriate CESO rank to which a CES eligible may be appointed


depends on two major qualification criteria, namely: (1) level of managerial
responsibility; and, (2) performance.

Performance is determined by the officials performance rating obtained in the


annual CESPES. On the other hand, managerial responsibility is based on the
level of the general duties and responsibilities which an eligible is performing,
as follows:

Levels of Duties and Rank Equivalent


Responsibilities
if level of managerial responsibilities I
are comparable to that of an Under-
secretary
if comparable to that of an Assistant II
Secretary
if comparable to that of a Bureau III
Director or a Department Regional
Director
if comparable to that of an Assistant IV
Bureau Director, Department
Assistant Regional Director or
Department Service Chief
if comparable to that of a Bureau V
Regional Director
if comparable to that of a Bureau VI
Assistant Regional Director

As a general rule, a CES eligible will be recommended for appointment to the


rank equivalent of the level of his managerial responsibility if his performance
rating is Satisfactory or higher. If the performance rating is Outstanding, he will
be recommended one rank higher than his level of managerial responsibility.

Security of tenure in the career executive service is thus acquired with respect to
rank and not to position. The guarantee of security of tenure to members of the CES
does not extend to the particular positions to which they may be appointed a concept
which is applicable only to first and second-level employees in the civil service but to the
rank to which they are appointed by the President. Accordingly, respondent did not
acquire security of tenure by the mere fact that she was appointed to the higher position
of Chief Public Attorney since she was not subsequently appointed to the rank of CESO
I based on her performance in that position as required by the rules of the CES Board.
Indeed, to contend, as does the dissent of Justice Gonzaga-Reyes, that a CES
eligibility was all that was required to make her appointment to the position of Chief
Public Attorney permanent would give rise to an anomalous situation. Following such
theory, even if respondent is not appointed CESO I because her performance as Chief
Public Attorney does not warrant her appointment to such higher rank, she cannot be
transferred to any other office to which her rank (CESO III) qualifies her. This theory of
the dissent, i.e., that a CES eligibility gives the appointee security of tenure - not the
ruling in this case that it is appointment to the appropriate rank that confers security of
tenure - is what will undermine the Career Executive Service.
Third. Within the Career Executive Service, personnel can be shifted from one office
or position to another without violation of their right to security of tenure because their
status and salaries are based on their ranks and not on their jobs. To understand this, it
is necessary to consider the reason for the creation of the Career Executive Service.
R.A. No. 5435, as amended by R.A. Nos. 6076, 6172, and 6175, created a
[13]

commission charged with the specific function of reorganizing the government to


promote simplicity, economy, and efficiency in its operations. The result was the
preparation of the Integrated Reorganization Plan which was adopted and declared part
of the law of the land by P.D. No. 1 on September 24, 1972. A major feature of the
Integrated Reorganization Plan was the creation of the Career Executive Service whose
justification was explained by the Commission on Reorganization, thus:

The present Civil Service system is not geared to meet the executive
manpower needs of the government. The filling of higher administrative
positions is often based on considerations other than merit and demonstrated
competence. The area of promotion is currently confined to the person or
persons next-in-rank in the agency. Moreover, personnel classification and
compensation are uniformly based on concepts and procedures which are
suited to positions in the lower levels but not to managerial posts in the higher
levels. To fill this crucial gap, it is recommended that a Career Executive
Service be established. This group of senior administrators shall be carefully
selected on the basis of high qualifications and competence. Skilled in both
techniques and processes of management, these career executives will act as
catalysts for administrative efficiency and as agents of administrative
innovation.

The status and salary of the career executives will be based on their rank, and
not on the job that they occupy at any given time . . . . In this sense, the rank
status of the Career Executive Service is similar to that of the commissioned
officers in the Armed Forces or members of the Foreign Service. Unlike these
latter organizations, however, entrance to the Career Executive Service will
not be generally at an early age in a relatively junior level but at a senior
management level.

....

The rank classification in the Service will allow for mobility or flexibility of
assignments such that the government could utilize the services or special
talents of these career executives wherever they are most needed or will likely
create the greatest impact. This feature is especially relevant in a developing
country which cannot afford to have its scarce executive manpower pegged to
particular positions.

Mobility and flexibility in the assignment of personnel, the better to cope with the
exigencies of public service, is thus the distinguishing feature of the Career Executive
Service. To attain this objective, the Integrated Reorganization Plan provides:
[14]

e. Assignments, Reassignments and Transferees. . . .

Any provision of law to the contrary notwithstanding, members of the


Career Executive Service may be reassigned or transferred from one
position to another and from one department, bureau or office to
another; provided that such reassignment or transfer is made in the
interest of public service and involves no reduction in rank or
salary; provided, further, that no member shall be reassigned or
transferred oftener than every two years; and provided, furthermore,
that if the officer concerned believes that his reassignment or transfer
is not justified, he may appeal his case to the President.

The implementing rules and regulations of the CES Board provide:


Salary of Career Executive Service Officers. A CESO is compensated
according to his CES rank and not on the basis of the CES position he
occupies. However, if a CESO is assigned to a CES position with a higher
salary grade than that of his CES rank, he is allowed to receive the salary of
the CES position.

Should he be assigned or made to occupy a CES position with a lower salary


grade, he shall continue to be paid the salary attached to his CES rank. [15]

Petitioners are, therefore, right in arguing that respondent, as a CESO, can be


reassigned from one CES position to another and from one department, bureau or office
to another. Further, respondent, as a CESO, can even be assigned or made to occupy a
CES position with a lower salary grade. In the instant case, respondent, who holds a
CES Rank III, was correctly and properly appointed by the appointing authority to the
position of Regional Director, a position which has a corresponding CES Rank Level III.
[16]

Indeed, even in the other branches of the civil service, the rule is that, unless an
employee is appointed to a particular office or station, he can claim no security of tenure
in respect of any office. This rule has been applied to such appointments as Director III
or Director IV or Attorney IV or V in the Civil Service Commission since the
appointments are not to specified offices but to particular ranks; Election Registrars;
[17]

Election Officers, also in the Commission on Elections; and Revenue District Officers
[18] [19]

in the Bureau of Internal Revenue. Reiterating the principle in Sta. Maria v. Lopez,
[20]

this Court said:


[21]

. . . [T]he rule that outlaws unconsented transfers as anathema to security of


tenure applies only to an officer who is appointed - not merely assigned - to a
particular station. Such a rule does not proscribe a transfer carried out under a
specific statute that empowers the head of an agency to periodically reassign
the employees and officers in order to improve the service of the agency. The
use of approved techniques or methods in personnel management to harness
the abilities of employees to promote optimum public service cannot be
objected to. . . .

For the foregoing reasons, we hold that respondents appointment to the position of
Chief Public Attorney was merely temporary and that, consequently, her subsequent
transfer to the position of Regional Director of the same office, which corresponds to her
CESO rank, cannot be considered a demotion, much less a violation of the security of
tenure guarantee of the Constitution.
Fourth. On the other hand, Justice Puno makes much of the fact that petitioner
Carina J. Demaisip is not a CES eligible. Suffice it to say the law allows in exceptional
cases the appointment of non-CES eligibles provided that the appointees subsequently
pass the CES Examinations. Thus Part III, Chap. I, Art. IV, par. 5(c) of the Integrated
Reorganization Plan provides that the President may, in exceptional cases, appoint any
person who is not a Career Executive Service eligible; provided that such appointee
shall subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualified in such examination.
For the same reason that the temporary appointment of respondent Josefina G.
Bacal as Chief Public Attorney is valid under this provision of the law despite the fact
that she does not hold the rank of CESO I, so is the appointment to the same position of
petitioner Carina J. Demaisip. The question in this case is not the validity of the
appointment to such position but whether the appointee acquires security of tenure
even if he does not possess the requisite rank. There is no claim that petitioner
Demaisip has a right to remain in the position of Chief Public Attorney permanently.
On the other hand, as respondent herself does not have the requisite qualification
for the position of Chief Public Attorney, she cannot raise the lack of qualification of
petitioner. As held in Carillo v. Court of Appeals, in a quo warranto proceeding the
[22]

person suing must show that he has a clear right to the office allegedly held unlawfully
by another. Absent that right, the lack of qualification or eligibility of the supposed
usurper is immaterial. Indeed, this has been the exacting rule since it was first
[23] [24]

announced, 95 years ago, in Acosta v. Flor. As at present embodied in Rule 66, 5 of


[25]

the Rules of Civil Procedure, the rule is that a person claiming to be entitled to a public
office or position usurped or unlawfully held or exercised by another may bring an action
therefor in his own name.
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition
for quo warranto filed by respondent is DISMISSED.
SO ORDERED.