Admin Cases Latest1.docx

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13932

December 24, 1959

JOSE V. DE LOS SANTOS, ET AL., petitioners, vs. HON. NICASIO YATCO, ET AL., respondents.

Anacleto P. Bernardo for petitioners. Talileo P. Brion for respondents.

BENGZON, J.: Petition for certiorari to revoke the order of the respondent judge cancelling his previous order of execution. For the reasons stated hereinafter, it should be denied. It appears that in civil Case No. Q-2664 of Quezon City Court of First Instance, the parties submitted on December 9, 1957, a compromise agreement whereby, referring to the sale by installment of a parcel of land made by plaintiffs Pacita V. De los Santos and Jose v. de los Santos to defendant Francisco Mendoñez, they asked the court to render a judgment subject t the following conditions: a. On or before December 26, 1957, defendant shall pay to plaintiffs the amount of P1,000.00; b. Defendant shall pay P300.00 monthly installment within the first five days of every month beginning January, 1958, until the balance shall have been paid in full; c. The balance shall bear interest at 10% per annum; d. That balance of defendant to pay P1,000.00 on or before December 26, 1957 and/or any two (2) successive monthly installments shall be cause for plaintiffs to demand of defendant to immediately vacate the premises with forfeiture in plaintiffs favor of all previous payments made; that if defendant will refuse to voluntarily vacate, plaintiffs can ask for execution of judgment against the defendant; e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of the lot, Lot No. 4, Block No. 13 T. C.T. No. 25094, Quezon City Registry, in favor of defendant upon payment in full of the balance.lawphi1.net 1|Page

Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and saying "judgment is hereby rendered in accordance with the terms and conditions set forth therein, for the parties to comply therewith." On March 10, 1958, plaintiffs in the same case filed a motion for execution, because defendant had allegedly neglected to pay monthly installments since January 1958. Plaintiffs set the motion for hearing on March 15, 1958. However, on March 14, 1958, defendants moved (with the conformity of plaintiffs' counsel) for postponement to March 22, 1958 "to give the parties sufficient time to come to a more just, fair and equitable agreement." (Annex "E") And the judge postponed, as requested. It is not clear happened at the hearing on March 22, 1958. According to plaintiffs, Mendoñez admitted he violated the agreement, asked for, and was granted, two days to settle with plaintiffs, but he failed to do so. According to defendant there was a misunderstanding at the hearing. The fact is, the court issued on March 25, 1958, an order of execution. However, defendant Mendoñez filed on April 17, 1958, an urgent motion to quash the writ of execution, asserting under oath that "immediately after the execution of the compromise agreement . . . plaintiff Pacita V. de los Santos and defendant Francisco Mendoñez entered into a verbal agreement whereby the former assured and led defendant to believe that provided he could pay in full and at one time the balance of his indebtedness to her through a GSIS Government Service Insurance System) loan which she is willing to facilitate for defendant, she would execute the necessary deed of absolute sale in favor of the defendant for Lot No. 4, Block No. 13-C, Pcs-3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the terms and conditions favorable to her in their compromise agreement unenforceable against defendant. . . ." Defendant further alleged, also under oath, among other things, that he applied for and secured the necessary loan from the GSIS; that plaintiffs had been so advised on March 28, 1958; but plaintiff Pacita V. de los Santos "arbitrarily and illegally demands and continuous demanding of defendant that before she complies with the content of said (verbal) agreement, defendant should pay her P1,000.00 by way of attorney's fees plus the balance of defendant's indebtedness computed by her in the amount of P14,363.00, excluding interest yet, all to be taken from defendant's GSIS loan as approved, and that the P1,000.00 already paid by defendant to her as stated in paragraph 4, supra, is considered by her forfeited in her favor. . . ." This urgent motion was taken up on April 19, 1958. After listening to the parties, the judge in open court ordered; "in view of the statement of counsel for plaintiffs that they are still open to an amicable settlement, action on the motion to quash writ of execution of the defendant is held in abeyance for two (2) weeks during which period they can settle the case amicably and report to the Court whatever with agreement they may have reached." On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de los Santos on April 22, 1958, that he made known to her "that he is ready to pay and is offering her the sum of P13,563, his balance indebtedness to her, in accordance with their verbal agreement on December 9, 1957 . . . Plaintiff Pacita V. de los Santos brushed aside defendant's offer of payment, and instead, stated that she will abide by their said agreement only if she will be paid P14,500.00. She added that she is demanding now, P14,500.00 after she has forfeited 2|Page

the P1,000.00 already paid by defendant to her, and that she can not allow the P1,000.00 be deducted from the remaining balance of P14,563.00." The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendant's insistance on non-violation of the compromises agreement, he set the case for hearing on June 3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend the hearing, and defendant proved the material allegations of his urgent motion as hereinabove set forth. Wherefore, convinced that there was no justification or the issuance of the writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by his order of June 4, 1958.lawphi1.net Hence this petition for certiorari to revoke that particular order, which petition must necessarily be based on lack of jurisdiction or abuse of discretion. 1 There is no question in this country that a judge has jurisdiction to quash a writ of execution issued by him, particularly where it was improvidently issued. (Dimayuga vs. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See also Garcia vs, Muñoz, 103 Phil., 628. Was there abuse of discretion? We think not. In the first place, there being opposition on the part of the defendant, who alleged and proved a subsequent verbal agreement amending the compromise, execution could not validly be decreed without a hearing. As we said in Co. vs. Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of the compromise agreement is alleged, "there arises a cause of action which must be passed upon by the court requiring a hearing to determine whether such breach had really taken place." 2 In the second place, the allegations proved by Mendoñez about their verbal agreement, his having secured a loan from the GSIS and his consequent ability to discharge his obligation seemingly justified the court's refusal to eject defendant from the premises (on execution) was the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by defendant as previous installments of the purchase price, 3not to mention the of defendants use of the house and theatre erected that parcel of land. Upon the other hand, the respondent judge's action caused no irreparable or undue harm plaintiffs, because the latter still have the judgment Mendoñez. Note particularly that their unpaid continuous to earn 10% interest. Wherefore, as the court had jurisdiction and has committed not grave abuse of discretion, the writ of certiorari may not be issued. Petition denied, with costs against petitioners.

3|Page

EN BANC

[G.R. No. 147870. July 31, 2002]

RAMIR R. PABLICO, petitioner, vs. ALEJANDRO A. VILLAPANDO, respondent. DECISION YNARES-SANTIAGO, J.: May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on erring elective local officials? This purely legal issue was posed in connection with a dispute over the mayoralty seat of San Vicente, Palawan. Considering that the term of the contested office expired on June 30, 2001,i the present case may be dismissed for having become moot and academic.ii Nonetheless, we resolved to pass upon the above-stated issue concerning the application of certain provisions of the Local Government Code of 1991. The undisputed facts are as follows: On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of the

Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of Palawan

an administrative complaint against respondent Alejandro A. Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of the Constitution.iii Complainants alleged that respondent, on behalf of the municipality, entered into a consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May 1998 elections. They argue that the consultancy agreement amounted to an appointment to a government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution. In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him. He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate within one year from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution. On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty of the administrative charge and imposed on him the penalty of dismissal from service.iv Respondent appealed to the Office of the President which, on May 29, 2000, affirmed the decision of the Sangguniang Panlalawigan of Palawan.v Pending respondents motion for reconsideration of the decision of the Office of the President, or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor. Consequently, respondent filed with the Regional Trial Court of Palawan a petition for certiorari and prohibition with preliminary injunction and prayer for a temporary restraining order, docketed as SPL Proc. No. 3462.vi The petition, seeks to annul, inter alia, the oath administered to petitioner. The Executive Judge granted a Temporary Restraining Order effective for 72 hours, as a result of which petitioner ceased from discharging the functions 4|Page

of mayor. Meanwhile, the case was raffled to Branch 95 which, on June 23, 2000, denied respondents motion for extension of the 72-hour temporary restraining order.vii Hence, petitioner resumed his assumption of the functions of Mayor of San Vicente, Palawan. On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the Court of Appeals seeking to annul: (1) the May 29, 2000 decision of the Office of the President; (2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95. On March 16, 2001, the Court of Appealsviii declared void the assailed decisions of the Office of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of Mayor of San Vicente, Palawan.ix A motion for reconsideration was denied on April 23, 2001.x Hence, the instant petition for review. The pertinent portion of Section 60 of the Local Government Code of 1991 provides: Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: xxx xxx

xxx

An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis supplied) It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al.,xi we held that [t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60. Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that (b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.xii As held in Salalima,xiii this grant to the disciplining authority of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such as the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing rules.xiv Verily, the clear legislative intent to make the subject power of removal a judicial prerogative is patent from the deliberations in the Senate quoted as follows: xxx xxx

xxx

Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or 5|Page

remove an elective official. Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN simply by COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan. Senator Pimentel. OR THE PROPER COURT. Senator Saguisag. OR THE PROPER COURT. Senator Pimentel. Thank you. We are willing to accept that now, Mr. President. Senator Saguisag. It is to be incorporated in the phraseology that will craft to capture the other ideas that have been elevated. xxx xxx

x x x.xv

It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the disciplining authority to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove.xvi As explained by the Court in Lacson v.

Roque:xvii

the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove. WHEREFORE, in view of the foregoing, the instant petition for review is DENIED. SO ORDERED.

6|Page

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 185740

July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR JESUS O. TYPOCO, JR., Petitioner, vs. BEATRIZ O. GONZALES, Respondent. DECISION BRION, J.: We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial administrator, or to an equivalent position. Factual Antecedents Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and recommended to Governor Pimentel that she be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed Gonzales.5 Proceedings before the Civil Service Commission Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No. 001952.7 Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No. 002245,8 which directed Gonzales’ reinstatement. Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her services the next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential

7|Page

employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature. The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160) made the provincial administrator position coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials who were already issued permanent appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent appointment as provincial administrator and is entitled to continue holding this office despite its subsequent classification as a coterminous position. The conversion of the provincial administrator position from a career to a non-career service should not jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and confidence is not among the grounds for a permanent appointee’s dismissal or discipline under existing laws. In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position.Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No. 061988. The Appellate Court’s Ruling The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent position.14 Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his position once he assumes a position in the civil service under a completed appointment. This legal right is protected both by statute and the Constitution, and he cannot be removed from office without cause and previous notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of removal, or without any cause. The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security of tenure, and that she has the right to be reinstated with payment of backwages. The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of due process because they are separate and distinct from the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the day after she was reinstated. Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and hence, it is no longer alterable.

8|Page

The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated December 2, 2008. The Present Petition In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment. In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo that the provincial administrator position has indeed become a primarily confidential position, this reclassification should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s effectivity. Issues The parties’ arguments, properly joined, present to us the following issues: 1) Whether Congress has re-classified the provincial administrator position from a career service to a primarily confidential, non-career service position; and 2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province of Camarines Norte. The Court’s Ruling We find the petition meritorious. Congress has reclassified the provincial administrator position as a primarily confidential, non-career position We support the CSC’s conclusion that the provincial administrator position has been classified into a primarily confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial administrator position among the listing of mandatory provincial officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the provincial administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan. Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the requirement of civil service eligibility for a provincial administrator, together with the educational requirements, it shortened the six-year work experience requirement to five years.28 It also

9|Page

mandated the additional requirements of residence in the local government concerned, and imposed a good moral character requirement. Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a non-career service position that is primarily confidential. Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial administrator position under the second major level of positions in the career service under Section 7 of Presidential Decree No. 807. This provision reads: Section 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: xxxx 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. Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial administration by identifying the incumbent with the provincial governor to ensure the alignment of the governor’s direction for the province with what the provincial administrator would implement. In contrast with the general direction provided by the provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and the provincial governor, to wit: (b) The administrator shall take charge of the office of the administrator and shall: (1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same particularly those which have to do with the management and administration-related programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code; (2) In addition to the foregoing duties and functions, the administrator shall: (i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the local government unit; xxxx (4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative to the management and administration of the local government unit. [emphases and italics ours]

10 | P a g e

As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate relationship with the office of the governor (its appointing authority) to effectively develop, implement and administer the different programs of the province. The administrator’s functions are to recommend to the Sanggunian and to advise the governor on all matters regarding the management and administration of the province, thus requiring that its occupant enjoy the governor’s full trust and confidence. To emphasize the close relations that the provincial administrators’ functions have with the office of the governor, RA 7160 even made the provincial administrator position coterminous with its appointing authority.30 This provision, along with the interrelations between the provincial administrator and governor under Section 480, renders clear the intent of Congress to make the provincial administrator position primarily confidential under the non-career service category of the civil service. Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power that does not violate Gonzales’ security of tenure Having established that Congress has changed the nature of the provincial administrator position to a primarily confidential employee, the next question to address would be its impact on Gonzales’ security of tenure. According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to Gonzales’ original permanent appointment under the old LGC. They posit that Gonzales acquired a vested legal right over her position from the moment she assumed her duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due hearing; otherwise such removal would amount to a violation of her security of tenure. The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the nature of the position and an employee’s right to hold a position. These two concepts are different. The nature of a position may change by law according to the dictates of Congress. The right to hold a position, on the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the position. Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to create public offices is the power to abolish and modify them to meet the demands of society;31 Congress can change the qualifications for and shorten the term of existing statutory offices. When done in good faith, these acts would not violate a public officer’s security of tenure, even if they result in his removal from office or the shortening of his term.32 Modifications in public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they are aimed at the office and not at the incumbent.33 In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against their replacements, arguing that their term of office under the old law had not yet expired, and neither had they abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may, by law, terminate the term of a 11 | P a g e

public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial. More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent appointee to the Executive Director II position, which was not part of the career executive service at the time of her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified the Executive Director II position to be within the career executive service. Since Dimayuga was not a career executive service officer, her initially permanent appointment to the position became temporary; thus, she could be removed from office at any time. In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but significantly modified many of its aspects. It is now a primarily confidential position under the non-career service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA 7160 introduced to further empower local governments and decentralize the delivery of public service. Section 3(b) of RA 7160 provides as one of its operative principles that: (b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities. Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied at the time of her removal should be considered, and not merely the nature of her appointment at the time she entered government service. In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects the permanent appointment of a public officer, despite subsequent changes in the nature of his position. Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent employee remains a permanent employee unless he is validly terminated," and from there attempts to draw an analogy between Gabriel and the case at hand. The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed government employee, who was later ordered reinstated. From this sentence alone can be discerned that the issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change in the nature of the position held by the public officer involved. Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual employee, which led to his termination from service, was due to a pending protest he filed before the CSC – indicating that there was no ground for him to not receive the appointment earlier 12 | P a g e

promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He was a permanent employee who was extended a different appointment, which was casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same position whose nature changed because of the passage of RA 7160. The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its contention that permanent appointees could expect protection for their tenure and appointments in the event that the Court determines that the position is actually confidential in nature: The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.38 The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in government-owned and –controlled corporations cannot expect protection for their tenure and appointments upon the reclassification of their position to a primarily confidential position. There, the Court emphasized that these officers cannot rely on the statutes providing for their permanent appointments, if and when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a property right. Thus: Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public service is not a property right. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in government, except those created by the constitution, may be abolished, altered, or created anytime by statute. And any issues on the classification for a position in government may be brought to and determined by the courts.40 (emphases and italics ours) Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on a permanent capacity In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination of government employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive department’s intent to protect and uphold both the national government and the local government 13 | P a g e

employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to prove its point: 8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions. At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to wit: Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the Local Government Units and for other Related Purposes. [underscore, italics and emphases ours] A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose functions are to be devolved to local governments: WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the national government agencies (NGAs) concerned to the local government units (LGUs); WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services and facilities; WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel concerned and assets to the LGUs. [underscores, italics and emphases ours] Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national government position whose functions are to be devolved to the local governments. The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees only. According to the dissent, the phrase "and for related purposes" in EO 503’s title could encompass personnel not necessarily employed by national government agencies but by local government units such as the administrator, the legal officer and the information officer, as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial administrator would automatically become coterminous with that of the appointing authority upon RA 7160’s effectivity. This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel, basic services and facilities to local government units. The impact of the 14 | P a g e

change in a local government position’s nature is clearly different from the implementation of devolution and its ancillary effects: the former involves a change in a local government position’s functions and concept of tenure, while the latter involves (among other things) the transfer of national government employees to local government units. This difference is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for other related purposes" in EO 503’s title be understood to encompass the consequences of the change in the local government position’s nature. Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s ordinance powers to provide for rules that are general or permanent in character for the purpose of implementing the President’s constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the personnel of national agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed earlier. Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the clear language and intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate powers. The power to create, abolish and modify public offices is lodged with Congress.43 The President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law has declared that the positions they occupy are now confidential. Such act would amount to the President’s amendment of an act of Congress – an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.44 The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. The EO’s validity, however, is not in question in the present case. What is at issue is a proper interpretation of its application giving due respect to the principle of separation of powers, and the dissenting opinion’s interpretation does violence to this principle. Gonzales has security of tenure, but only as a primarily confidential employee To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category, are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural due process.45 The concept of security of tenure, however, labors under a variation for primarily confidential employees due to the basic concept of a "primarily confidential" position. Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from office; his term merely "expires"46 and the loss of trust and confidence is the "just cause" provided by law that results in the termination of employment. In the present case where the trust and confidence has been irretrievably eroded, we cannot fault

15 | P a g e

Governor Pimentel’s exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales. Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite a change in the nature of the office held. In other words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’ right to security of tenure when she was removed without sufficient just cause from her position, but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing at the time of the termination of her service; i.e., she was then already occupying a position that was primarily confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus, Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as provincial administrator of Camarines Norte or to any other comparable position. This conclusion, however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in government service. WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425. SO ORDERED.

16 | P a g e

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181559

October 2, 2009

LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO S. VILLARUBIA, RICARDO M. GONZALES, JR., ROSSEL MARIE G. GUTIERREZ, NICANOR F. VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ, ANTOLIN D. ZAMAR, JR., MARIO S. ALILING, TEODULO SALVORO, JR., PHILIP JANSON ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN RYAN PATULA, WILLIAM TANOY, VICTOR ARBAS, JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A. RENDOQUE, ENRIQUETA TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS, MARIO T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLAROSA, RICARDO C. PATULA, RACHEL BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO CUAL, BERNARD J. OZOA, ROGER JOHN AROMIN, CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA LEE ESTRABELA, MELCHOR B. MAQUILING, RAUL MOLAS, OSCAR KINIKITO, DARWIN B. CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO, RODULFO ZOSA, JR. and JORGE ARBOLADO, Petitioners, vs. CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR DUMALAG, JR., ERLINDA TUMONGHA, JOSEPHINE MAE FLORES AND ARACELI CAMPOS, Respondents. DECISION DEL CASTILLO, J.: The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned demagoguery of elections. Amidst the struggle of personalities, ideologies, and platforms, the vigor and resilience of a professional civil service can only be preserved where our laws ensure that partisanship plays no part in the appointing process. Consequently, we affirm the validity of a regulation issued by the Civil Service Commission (CSC or the Commission) intended to ensure that appointments and promotions in the civil service are made solely on the basis of qualifications, instead of political loyalties or patronage.

17 | P a g e

This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision1 of the Court of Appeals dated August 28, 2007 and its Resolution2 dated January 11, 2008 in CA-G.R. CEBSP No. 00665. The case stemmed from CSC Field Office’s invalidation of petitioners’ appointments as employees of the City of Dumaguete, which was affirmed by the CSC Regional Office, by the Commission en banc and by the Court of Appeals. Legal and Factual Backgrounds Accreditation of Dumaguete City by the Civil Service Commission On October 25, 1999, pursuant to the Commission’s Accreditation Program, the CSC issued Resolution No. 992411,3 which granted the City Government of Dumaguete the authority to take final action on all its appointments, subject to, inter alia, the following conditions: 1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within the limits and restrictions of the implementing guidelines of the CSC Accreditation Program as amended (MC No. 27, s. 1994); xxxx 5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service Field Office] CSFO concerned; xxxx 9. That appointments found in the course of monthly monitoring to have been issued and acted upon in violation of pertinent rules, standards, and regulations shall immediately be invalidated by the Civil Service Regional Office (CSRO), upon recommendation by the CSFO. Appointments made by outgoing Mayor Remollo Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost to respondent Mayor Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor Remollo promoted 15 city hall employees, and regularized another 74 city hall employees, including the herein 52 petitioners. On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he would not honor the appointments made by former Mayor Remollo. On the same day, he instructed the City Administrator, respondent Dominador Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C. Tumongha (now deceased), to refrain from making any cash disbursements for payments of petitioners' salary differentials based on their new positions. The Petition for Mandamus before the Regional Trial Court of Dumaguete City Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Temporary Restraining Order against the City of Dumaguete, represented by respondent city mayor Perdices and city officers Dumalag, Tumongha, Josephine Mae Flores, and Araceli Campos. The petition was docketed as Civil Case No. 13013, and raffled to Branch 41 of the Regional Trial Court of Dumaguete City.

18 | P a g e

Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking any action or issuing any orders nullifying their appointments. In a Decision4 dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners’ Motion for Reconsideration was also denied in an Order5 dated April 26, 2007. The issues involved in Civil Case No. 13013 have twice been elevated to and eventually resolved by the Court in G.R. Nos. 1777956 and 168484.7 Revocation of Appointments by the Civil Service Commission Field Office Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked and invalidated the appointments of the petitioners (the August 1, 2001 Order) based of the following findings: 1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in the submitted [Report of Personnel Actions] ROPA for the month of June 2001. 2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June 2001 to consider the number of appointments thus issued and there was no other call for a PSB meeting certified to by the City [Human Resource Management Officer] HRMO. 3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in the ROPA as certified by the City HRMO. 4. There were no PSB statements certifying that there was actual screening and evaluation done on all candidates for each position. 5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May 2001 elections for City Mayor of Dumaguete City. 6. The 89 appointments were all issued after the elections and when the new city mayor was about to assume office.8 Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988 dated June 4, 2001, the pertinent portions of which provide: WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates controversies that would arise involving appointments issued by outgoing local chief executives immediately before or after the elections; WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appointments even after the elections, especially when their successors have already been proclaimed. WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing and incoming officials and the people who are immediately affected and are made to suffer the consequences thereof are the ordinary civil servants, and eventually, to a large extent, their constituents themselves;

19 | P a g e

WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees during the prohibited period as provided for in CSC Memorandum Circular No. 7, series of 2001, is to prevent the occurrence of the foregoing, among others;9 WHEREAS, local elective officials whose terms of office are about to expire, are deemed as "caretaker" administrators who are duty bound to prepare for the smooth and orderly transfer of power and authority to the incoming local chief executives; WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited from making appointments two (2) months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety; WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160) or in the Civil Service Law (Book V of Executive Order No. 292) of the abovestated prohibition, the rationale against the prohibition on the issuance of "midnight appointments" by the President is applicable to appointments extended by outgoing local chief executives immediately before and/or after the elections; xxxx NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency of the government, hereby issues and adopts the following guidelines: xxxx 3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, except in cases of renewal and reinstatement, regardless of status, which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, including its Regional or Field Offices, of said appointments or the Report of Personnel Actions (ROPA) as the case may be, shall be disapproved unless the following requisites concur relative to their issuance: a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting; b) That the appointee is qualified; c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety; d) That the appointment is not one of those mass appointments issued after the elections. 4. The term "mass appointments" refers to those issued in bulk or in large number after the elections by an outgoing local chief executive and there is no apparent need for their immediate issuance.

20 | P a g e

On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before the CSC Region VII Office in Cebu. The motion was, however, denied on the ground that it should have been filed before the office of Director Abucejo in Dumaguete City. Thereafter, on October 31, 2001, petitioners asked the CSC Region VII Office in Cebu to treat their previous Motion for Reconsideration as their appeal.1avvphi1 On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an Appeal to the Commission en banc was filed through registered mail by 52 of the original 89 appointees, the petitioners herein, namely: Name

Former Position

New Position

Date of Appointment

1. Leah M. Nazareno

Legal Researcher

Asst. Dept. Head I

7-Jun-01

2. Carlo M. Cual

Legislative Staff Officer I

Legislative Staff Officer III

5-Jun-01

3. Rogelio B. Clamonte

Public Services

Supply Officer IV

5-Jun-01

4. Florecita Llosa

Supply Officer I

Records Officer II

11-Jun-01

5. Rogelio S. Villarubia

Agriculturist II

Agriculturist III

5-Jun-01

6. Rossel Marie G. Gutierrez

Casual/Plantilla

Supervising Environmental Management Specialist

5-Jun-01

7. Nicanor F. Villarosa, Jr.

Casual/Plantilla

Dentist II

5-Jun-01

8. Marie Sue Cual

Casual/Plantilla

Social Welfare Officer I

7-Jun-01

9. Miramichi Majella B. Mariot

Casual/Plantilla

Records Officer II

7-Jun-01

10. Alma F. Ramirez

Casual/Plantilla

Clerk IV

7-Jun-01

11. Antolin D. Zamar, Jr.

Casual/Plantilla

Metro Aide II

11-Jun-01

12. Mario S. Aliling

Casual/Plantilla

Driver II

5-Jun-01

13. Teodulo Salvoro, Jr.

Casual/Plantilla

Metro Aide II

5-Jun-01

14. Philip Janson Altamarino

Casual/Plantilla

Clerk I

5-Jun-01

15. Antonieta Padura

Casual/Plantilla

Metro Aide II

11-Jun-01

16. Adolfo Cornelia

Casual/Plantilla

Metro Aide II

11-Jun-01

17. Ian Ryan Patula

Casual/Plantilla

Metro Aide II

7-Jun-01

18. William Tanoy

Casual/Plantilla

Metro Aide II

5-Jun-01

19. Victor Arbas

Casual/Plantilla

Public Services Foreman

7-Jun-01

20. Jeanith Cual

Casual/Plantilla

Utility Worker II

5-Jun-01

21 | P a g e

21. Braulio Sayson

Casual/Plantilla

Mechanical Plant Supervisor

7-Jun-01

22. Dawn Villarosa

Casual/Plantilla

Clerk I

7-Jun-01

23. Agustin Rendoque

Casual/Plantilla

Utility Worker I

7-Jun-01

24. Enriqueta Tumongha

Casual/Plantilla

Utility Worker II

5-Jun-01

25. Lionel Banogon

Casual/Plantilla

Clerk II

5-Jun-01

26. Rosalito Vergantinos

Casual/Plantilla

Pest Control Worker II

5-Jun-01

27. Mario Cual, Jr.

Casual/Plantilla

Utility Foreman

7-Jun-01

28. Elaine Tumongha

Casual/Plantilla

Registration Officer I

11-Jun-01

29. Norman Villarosa

Casual/Plantilla

Utility Worker I

5-Jun-01

30. Ricardo C. Patula

Casual/Plantilla

Revenue Collection Clerk I

5-Jun-01

31. Rachel Banagua

Casual/Plantilla

Utility Worker I

5-Jun-01

32. Rodolfo Calugcugan

Job Order

Driver I

7-Jun-01

33. Pergentino Cual

Job Order

Metro Aide II

11-Jun-01

34. Bernard Ozoa

Job Order

Utility Worker I

7-Jun-01

35. Roger J. Aromin

Job Order

Utility Worker I

7-Jun-01

36. Cheryl Nocete

Job Order

Utility Worker I

11-Jun-01

37. Marivic Sanchez

Job Order

Utility Worker I

11-Jun-01

38. Crispin Duran

Job Order

Metro Aide II

11-Jun-01

39. Rebeco Lingcong

Job Order

Metro Aide II

5-Jun-01

40. Anna Lee Estrabela

Job Order

Cash Clerk III

5-Jun-01

41. Melchor Maquiling

Job Order

Engineer I

7-Jun-01

42. Raul Molas

Job Order

Construction and Maintenance Foreman

7-Jun-01

43. Oscar Kinikito

Job Order

Electrician II

7-Jun-01

44. Darwin Conejos

Job Order

Engineering Aide

7-Jun-01

45. Romel Cual

Job Order

Metro Aide II

11-Jun-01

46. Roqueta Amor

Job Order

Dental Aide

5-Jun-01

47. Diosdado Lajato

Job Order

Pest Control Worker II

5-Jun-01

48. Paul Pino

Job Order

Utility Worker II

5-Jun-01

49. Lito Piñero

Job Order

Metro Aide II

11-Jun-01

22 | P a g e

50. Rodulfo Zosa, Jr.

Job Order

Metro Aide II

11-Jun-01

51. Jorge Arbolado

Job Order

Traffic Aide I

5-Jun-01

OIC-General Services Officer

Asst. Dept. Head I

5-Jun-01

52. Ricardo M. Gonzales, Jr.

Ruling of the CSC en banc and the Court of Appeals On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and affirming the invalidation of their appointments on the ground that these were mass appointments made by an outgoing local chief executive.10 The Commission explained: The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The prohibition is designed to discourage losing candidates from extending appointments to their protégés or from giving their constituents "promised" positions (CSC Resolution No. 97-0317 dated January 17, 1997, Re: Roldan B. Casinillo). Moreover, the same is intended to prevent the outgoing local chief executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any means that would directly or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed, particularly when the appointments were issued by the appointing authority who lost in said election. Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005, through CSC Resolution No. 050473. Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEBSP No. 00665. On August 28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, ratiocinating that: The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the nefarious practice by outgoing local chief executives in making appointments before, during, and/or after the regular local elections for ulterior partisan motives. Said practice being analogous to "midnight appointments" by the President or Acting President, the CSC then promulgated Resolution No. 010988, to suppress the mischief and evils attributed to "mass appointments" made by local chief executives. Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January 11, 2008. The Parties’ Arguments Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to issue regulations prohibiting mass appointments at the local government level. Petitioners cite De Rama v. Court of Appeals11 which held that Section 15, Article VII of the Constitution is only applicable to the President or Acting President. They claim that outgoing or defeated local appointing authorities are authorized to make appointments of qualified individuals until their last day in office, and that not all mass appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to take "final action" on all appointments, the Commission did not have any authority to disapprove the appointments made by outgoing mayor Remollo.

23 | P a g e

In their Comment dated May 15, 2008,12 respondents argue that petitioners’ appointments violated civil service rules and regulations other than CSC Resolution No. 010988. Respondents also assert that the Commission is authorized to invalidate the petitioners’ appointments, because the CSC accreditation program carried with it the caveat that "said exercise of authority shall be subject to Civil Service law, rules and regulations." Finally, respondents claim that petitioners were guilty of forum shopping because the issues in this case and in G.R. No. 177795 are the same. Our Ruling We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that the invalidation of petitioners’ appointments was warranted. Consequently, we affirm the Decision of the Court of Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No. 00665. The CSC has the authority to establish rules to promote efficiency in the civil service The Commission, as the central personnel agency of the government,13 has statutory authority to establish rules and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No. 807,14 or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including the power to issue rules and regulations and to review appointments: Section 9: Powers and functions of the Commission – The Commission shall administer the Civil Service and shall have the following powers and functions: xxxx (b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the provisions of this Decree x x x (c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effective personnel administration in the government; xxxx (h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the armed forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications; (Emphasis supplied) Executive Order No. 292, or the Administrative Code of 1987, also provides: Section 12: Powers and Functions – The Commission shall have the following powers and functions: xxxx (2) prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws;

24 | P a g e

(3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient, and effective personnel administration in the government; (4) take appropriate action on all appointments and other personnel matters in the Civil Service including extension of Service beyond retirement age; (5) inspect and audit the personnel actions and programs of the departments, agencies, bureaus, offices, local government units, and other instrumentalities of the government, including government owned and controlled corporations. (emphasis supplied) Clearly, the above-cited statutory provisions authorize the Commission to "prescribe, amend, and enforce" rules to cover the civil service. The legislative standards to be observed and respected in the exercise of such delegated authority are set out in the statutes, to wit: to promote "economical, efficient, and effective personnel administration." The Reasons behind CSC Resolution No. 010988 We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true that there is no constitutional prohibition against the issuance of "mass appointments" by defeated local government officials prior to the expiration of their terms. Clearly, this is not the same as a "midnight appointment," proscribed by the Constitution, which refers to those appointments made within two months immediately prior to the next presidential election.15 As we ruled in De Rama v. Court of Appeals:16 The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. However, even while affirming De Rama, we explained in Quirog v. Aumentado,17 that: We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. (Emphasis supplied) Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No. 010988. However, we found that Quirog’s appointment was made on June 1, 2001, or three days prior to the issuance of CSC Resolution No. 010988. As such, we ruled that the retroactive application of the law was not warranted. In Sales v. Carreon, Jr.,18 we had occasion to discuss the reasons behind the prohibition by the Commission of mass appointments after the elections. Sales involved the issuance of 83 appointments made by then Dapitan City Mayor Joseph Cedrick O. Ruiz in his last month of office (on June 1, 18, and 27, 2001), which the newly elected Mayor, Rodolfo H. Carreon, subsequently revoked, on the ground that these violated CSC

25 | P a g e

Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service during the election period. In Sales, we declared: This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, especially after their successors have been proclaimed. It does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending to their functions.19 It is not difficult to see the reasons behind the prohibition on appointments before and after the elections. Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from gaining any undue advantage during the elections. To this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and related issuances.20 After the elections, appointments by defeated candidates are prohibited, except under the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow the incoming administration a free hand in implementing its policies, and to ensure that appointments and promotions are not used as a tool for political patronage or as a reward for services rendered to the outgoing local officials. Not all Mass Appointments are Prohibited Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No. 010988 does not purport to nullify all "mass appointments." However, it must be shown that the appointments have undergone the regular screening process, that the appointee is qualified, that there is a need to fill up the vacancy immediately, and that the appointments are not in bulk. In Nazareno v. Dumaguete,21 we explained: CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any appointments immediately before and after elections. The same Resolution provides that the validity of an appointment issued immediately before and after elections by an outgoing local chief executive is to be determined on the basis of the nature, character, and merit of the individual appointment and the particular circumstances surrounding the same. Corollarily, we held in Sales,22 that: x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the individual appointment and the circumstances surrounding the same. It is only when the appointments were made en masse by the outgoing administration and shown to have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety that this Court has struck down "midnight" appointments. In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate dates, but within a ten-day period, in the same month that he left office.23 Further, the Commission’s audit found violations of CSC rules and regulations that justified the disapproval of the appointments. In this regard, CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on Appointments and Other Personnel Actions, provides: Section 1 – Appointments submitted to the CSC office concerned should meet the requirements listed hereunder. Non-compliance with such requirements shall be grounds for disapproval of said appointments:

26 | P a g e

xxxx (h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by the PSB, if applicable. As proof thereof, a certification signed by the Chairman of the Board at the back of the appointment or alternatively, a copy of the proceedings/ minutes of the Board’s deliberation shall be submitted together with the appointment. The issuance of the appointment shall not be earlier than the date of the final screening/deliberation of the PSB. Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence that there were any deliberations on the qualifications of the petitioners, or any indication that there was an urgent need for the immediate issuance of such appointments. The absence of evidence showing careful consideration of the merits of each appointment, and the timing and the number of appointments, militate against petitioners’ cause. On the contrary, the prevailing circumstances in this case indicate that the appointments were hurriedly issued by the outgoing administration. The Accreditation of Dumaguete City did not remove the CSC’s authority to review appointments We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to "take final action" on all its appointments did not deprive the Commission of its authority and duty to review appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be "subject to civil service law, rules and regulations" and that appointments in violation of pertinent rules "shall immediately be invalidated." Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides that notwithstanding the initial approval of an appointment, the same may be recalled for "[v]iolation of other existing Civil Service laws, rules and regulations." The CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power "includes the authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations."24 Petitioners have not engaged in forum shopping The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.25 Forumshopping has been defined as the act of a party against whom an adverse judgment has been rendered in one forum, seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.26 Although the factual antecedents of the cases brought before this Court are the same, they involve different issues. The petition for Mandamus with Injunction and Damages, docketed as Civil Case No. 13013, and raised before this Court as G.R. No. 177795, challenged respondents’ refusal to recognize petitioners’ appointments and to pay petitioners’ salaries, salary adjustments, and other emoluments. The petition only entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present case docketed as G.R. No. 181559, on the other hand, involves the merits of petitioners’ appeal from the invalidation and revocation of their appointments by the CSC-Field Office, which was affirmed by the CSCRegional Office, CSC en banc, and the Court of Appeals.

27 | P a g e

In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which found petitioners not guilty of forum shopping, to wit: True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are not necessarily the same for this Court to adjudge that the filing of both by petitioners constitutes forum shopping. In G.R. No. 181559, the Court will resolve whether or not the petitioners’ appointments are valid. [In G.R. No. 177795], petitioners are claiming a right to the salaries, salary adjustments and other emoluments during the pendency of the administrative cases, regardless of how the CSC decided the validity of their appointments. WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals’ Decision in CA-G.R. CEB-SP No. 00665 dated August 28, 2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, and its Resolution dated January 11, 2008 denying the Motion for Reconsideration are AFFIRMED. SO ORDERED.

28 | P a g e

EN BANC

TEODULO V. LARGO,

G.R. No. 177244

vs THE COURT OF APPEALS, THE CIVIL SERVICE COMMISSION, THE NATIONAL POWER CORPORATION and ALAN OLANDESCA,

Promulgated:

Respondents. November 20, 2007 x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.: Assailed in this petition for reviewxiv is the March 23, 2007 Decisionxiv of the Court of Appeals in CA-G.R. SP No. 84984 which affirmed the July 4, 2003 Resolutionxiv of the Civil Service Commission (CSC) finding petitioner guilty of grave misconduct and imposing upon him the penalty of dismissal from service.

29 | P a g e

On December 17, 1997, petitioner Teodulo V. Largo, Section Chief, Administrative/General Services of the National Power Corporation (NPC) in Angat River Hydroelectric Power Plant (ARHEP), Norzagaray, Bulacan, was administratively charged with grave misconduct, conduct prejudicial to the best interest of the service, oppression, or unlawful exercise of power by an officer or employee as to harm anyone in his person or property while purporting to act under the color of authority and willfull violation of NPC Circular No. 97-66, which prohibits personnel from carrying firearms inside the NPC premises. These charges were based on the complaint filed by Alan A. Olandesca (Olandesca), former property officer of the NPC at ARHEP.

The NPC investigation revealed that on October 30, 1997, petitioner and Olandesca attended a birthday party where petitioner claimed to have been humiliated by Olandesca who threw a piece of paper at him and shouted, Ikaw ang magnanakaw. At around 5:05 in the afternoon of the same day, petitioner went to the quarters of Olandesca at ARHEP shouting invectives and threatening to kill Olandesca. Petitioner proceeded to the dirty kitchen at the back of the quarters where he met Olandescas wife. While they were conversing, a dog suddenly appeared and barked at petitioner. Claiming to have been frightened by the incessant barking of the dog which was about to attack him, petitioner fired two shots which scared the wife of Olandesca, as well as his 2 children, sister-in-law and mother-in law who were then gathered at the dirty kitchen. The first shot hit the flooring, while the other hit the water hose. Unable to find Olandesca, petitioner left the compound.xiv

Meanwhile, petitioner retired from service effective January 1, 1998 under the NPC SDP Retirement Plan.xiv

On March 19, 1998, the NPC Regional Board of Inquiry & Discipline conducted a pre-hearing conference. On motion of Olandesca, the NPC President approved the transfer of the formal investigation to the Board of Inquiry and Discipline of the NPC Head Office, which recommended that petitioner be held liable for simple misconduct with the minimum penalty of suspension for one month and one day to two months.xiv 30 | P a g e

In his Memorandumxiv dated January 3, 2001, President and Chief Executive Officer Federico Puno found petitioner guilty of grave misconduct and imposed upon him the penalty of dismissal from service.

On petitioners motion for reconsideration, NPC President Jesus N. Alcordo reduced the penalty to one year suspension, taking into consideration that this was petitioners first offense, the absence of physical harm caused by the shots he fired, his 21 years of service, his consistent very satisfactory performance, and Olandescas act of humiliating him prior to the incident. Considering, however, the retirement of petitioner, the NPC directed the execution of the penalty by deducting an amount equivalent to one year suspension without pay, from his retirement benefits.xiv

Petitioner appealed to the CSC which on July 4, 2003, affirmed the finding of the NPC that petitioner was guilty of grave misconduct but modified the penalty to dismissal from service. The dispositive portion of the CSC Resolution, provides:

WHEREFORE, the appeal of Teodulo V. Largo from the Decision dated August 15, 2001 of National Power Corporation President Jesus N. Alcordo, finding him guilty of Grave Misconduct, is DISMISSED. The penalty of one-year suspension to be executed by deducting an amount equivalent to one-year salary from the retirement benefits of Largo is hereby MODIFIED to dismissal from service. Largos dismissal from the service carries with it cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for re-employment in the government service.xiv

On June 21, 2004, the CSC denied petitioners motion for reconsideration in Resolution No. 040690.xiv

On petition with the Court of Appeals, the latter rendered a decision affirming the Resolution of the CSC. The decretal portion thereof provides: 31 | P a g e

WHEREFORE, the instant petition is DENIED and the assailed Orders of the Civil Service Commission dated July 4, 2003 and June 21, 2004 are AFFIRMED. SO ORDERED.xiv Hence, the instant petition.

Petitioner contends that the administrative case against him should be dismissed, the same having been rendered academic by his retirement from service. He further claims that there is no case against him and, assuming that he is guilty of an administrative offense, his liability could only be for simple misconduct. Petitioner further prays for the imposition of a lighter penalty instead of dismissal from service.

The issues for resolution are: (1) whether the retirement of petitioner rendered moot the resolution of the instant administrative case; and (2) whether petitioner was validly dismissed for serious misconduct.

The settled rule in this jurisdiction is that cessation from office by reason of resignation,xiv death, or retirementxiv does not warrant the dismissal of the administrative case filed against a public officer while he or she was still in the service, or render the said case academic. The jurisdiction of the disciplining authority attaches at the time of the filing of the administrative complaint and is not lost by the mere fact that the respondent public official had ceased to be in office during the pendency of his case. This rule applies to all employees in the civil service,xiv mindful of the constitutional precept that public office is a public trust for which all government employees and officials are accountable to the people. The rationale for this doctrine, as applied to government employees and officials in the judiciary, was explained in Perez v. Abieraxiv in this wise:

[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased to be in

32 | P a g e

office during the pendency of his case. The Court retains jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. For, what remedy would the people have against a civil servant who resorts to wrongful and illegal conduct during his last days in office? What would prevent a corrupt and unscrupulous government employee from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

The retirement of petitioner effective January 1, 1998, did not render moot the instant case. The filing of the administrative complaint against petitioner on December 17, 1997, prior to his retirement, effectively conferred upon the NPC, the CSC, and this Court, the jurisdiction to resolve the case until its conclusion. Hence, the guilt or innocence of petitioner can be validly addressed by the Court in the instant administrative case.

Anent the acts constituting the administrative charge, we find that the positive and categorical declarations of Olandescas witnessesxiv prevail over the negative allegation of petitioner that he did not utter threatening words when he went to the quarters of Olandesca. It is settled that denial is inherently a weak defense. To be believed, it must be buttressed by a strong evidence of nonculpability; otherwise, such denial is purely self-serving and without evidentiary value.xiv Like the defense of alibi, petitioners denial crumbles in the light of the positive declarations of the witnesses that petitioner uttered threats to kill Olandesca. It was established that petitioner entered the ARHEP, proceeded to Olandescas quarters, specifically to the dirty kitchen where the wife, two children, sisterin-law, and mother-in-law of Olandesca were gathered. Thereat, petitioner fired his gun twice and hurled threats to kill Olandesca. His acts of entering the quarters without permission, hurling threats, and discharging a gun, even assuming that the same were merely to scare a dog, are blatant displays of arrogance and recklessness and do not speak well of his character as a public officer.

33 | P a g e

However, the administrative offense committed by petitioner is not misconduct. To constitute misconduct, the act or acts must have a direct relation to and be connected with the performance of his official duties. In Manuel v. Calimag, Jr.,xiv it was held that:

Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: Misconduct in office has a definite and wellunderstood 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. xxxx In Salcedo v. Inting we also ruled It is to be noted that the acts of the respondent judge complained of have no direct relation with his official duties as City Judge. The misfeasance or malfeasance of a judge, to warrant disciplinary action 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 said judge.

In Milanes v. De Guzman,xiv a mayor collared a person, shook him violently, and threatened to kill him in the course of a political rally of the Nacionalista Party where said mayor was acting as the toastmaster. The Court held that the acts of the mayor cannot come under the class of the administrative offense of misconduct, considering that as the toastmaster in a non-governmental rally, he acted in his private capacity, for said function was not part of his duties as mayor. In Amosco v.

Magro,xiv the respondent Judge was charged with grave misconduct for his alleged failure to pay the amount of P215.80 for the purchase of empty Burma sacks. In dismissing the case, the Court sustained, among others, the argument of respondent Judge that the charge did not constitute misconduct because it did not involve the discharge of his official duties. It was further held that misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it

34 | P a g e

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. So also, a Judges abandonment of, and failure to give support to his family;xiv and alleged sale of carnapped motor vehicles,xiv do not fall within the species of misconduct, not being related to the discharge of official functions.

In the instant case, it was not proven that petitioners acts of trespassing in the quarters, threatening to kill Olandesca, and firing his gun, were related to, or performed by petitioner by taking advantage of his functions as Section Chief, Administrative/General Services. In fact, Olandesca argued that the authority to carry a gun inside NPC premises was not among the powers vested in petitioner. Also, it was not established that the gun used by petitioner was issued by the NPC. Evidence reveals that the position of petitioner is not among those vested with authority to carry a gun in the premises of the NPC. His act of entering the NPC ARHEP carrying a firearm was in violation of NPC Circular No. 97-66 dated August 6, 1997. Under said circular, only those directly involved in the security of an installation shall be allowed to enter the premises with their firearm. Moreover, it was never alleged or proven that petitioner could not have gained access to Olandescas quarters were it not for his position. In administrative proceedings, the burden of proving the acts complained of,xiv particularly the relation thereof to the official functions of the public officer, rests on the complainant. This, Olandesca failed to discharge. The inevitable conclusion therefore is that petitioner acted in his private capacity, and hence, cannot be held liable for misconduct, which must have a direct relation to and be connected with the performance of official duties.

Nevertheless, the complained acts of petitioner constitute the administrative offense of conduct prejudicial to the best interest of the service, which need not be related or connected to the public officers official functions. As long as the questioned conduct tarnished the image and integrity of his/her public office, the corresponding penalty may be meted on the erring public officer or employee. The Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) enunciates, inter alia, the State policy of promoting a high standard of ethics and utmost responsibility in the public service. Section 4 (c) of the Code commands that [public officials and employees] shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. By his actuations, petitioner failed to live up to such standard.

35 | P a g e

In Cabalitan v. Department of Agrarian Reform,xiv 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, xiv the Court held that the offense committed by a Court of Appeals 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 official duties. Then too, the Court considered the following conduct as 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;xiv and a court interpreters participation in the execution of a document conveying complainants property which resulted in a quarrel in the latters family.xiv

In sum, we find petitioner guilty of conduct prejudicial to the best interest of the service, which under Section 52 of Rule IV of Civil Service Commission Memorandum Circular No. 19, series of 1999, is classified as a grave administrative offense punishable by suspension of six (6) months and 1 day to one (1) year if committed for the first time.

Considering the retirement of petitioner, the penalty of suspension is no longer viable. Thus, in lieu of suspension, the penalty of fine equivalent to his salary for a period of six (6) months may be imposed. This ruling is in line with Section 19 of the Omnibus Rules Implementing Book V of Executive Order No. 292,xiv which provides:

The penalty of transfer, or demotion, or fine may be imposed instead of suspension from one month and one day to one year except in case of fine which shall not exceed six months.

WHEREFORE, the petition is PARTIALLY GRANTED. The March 23, 2007 Decision of the Court of Appeals in CA-G.R. SP No. 84984 affirming the July 4, 2003 Resolution of the Civil Service

36 | P a g e

Commission finding petitioner guilty of grave misconduct and imposing upon him the penalty of dismissal is REVERSED and SET ASIDE. Petitioner is declared GUILTY of conduct prejudicial to the best interest of the service and is directed to pay a FINE equivalent to his salary for six (6) months, to be deducted from his retirement benefits. EN BANC

G.R. No. 178021 REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION, vs MINERVA M.P. PACHEO, Promulgated: January 25, 2012

DECISION MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), which assails the February 22, 2007 Decisionxiv and the May 15, 2007 Resolutionxiv of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-assignment of respondent Minerva M.P. Pacheos

(Pacheo) not valid and ordering her reinstatement to her original station but without backwages under the principle of no work, no pay.

The Facts

37 | P a g e

Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.

On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 252002,xiv ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue service as basis for the issuance of the said RTAO.

Pacheo questioned the reassignment through her Letter dated May 9, 2002xiv addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the transfer would mean economic dislocation since she would have to spend ₱200.00 on daily travel expenses or approximately ₱4,000.00 a month. It would also mean physical burden on her part as she would be compelled to wake up early in the morning for her daily travel from Quezon City to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga to Quezon City. She was of the view that that her reassignment was merely intended to harass and force her out of the BIR in the guise of exigencies of the revenue service. In sum, she considered her transfer from Quezon City to Pampanga as amounting to a constructive dismissal.

Due to the then inaction of the BIR, Pacheo filed a complaintxiv dated May 30, 2002, before the CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002. In its July 22, 2002 Order,xiv the CSC-NCR treated Pacheos Complaint as an appeal and dismissed the same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service.xiv

In its Letter-replyxiv dated September 13, 2002, the BIR, through its Deputy Commissioner for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheos protest for lack of merit. It contended that her reassignment could not be considered constructive dismissal as she maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal

38 | P a g e

Division. It emphasized that her appointment to the position of Revenue Attorney IV was without a specific station. Consequently, she could properly be reassigned from one organizational unit to another within the BIR. Lastly, she could not validly claim a vested right to any specific station, or a violation of her right to security of tenure. Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.

On November 21, 2005, the CSC issued Resolution No. 051697xiv granting Pacheos appeal, the dispositive portion of which reads:

WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the withholding by the BIR of Pacheos salary for the period she did not report to work is justified. The CSCRO No. III is directed to monitor the implementation of this Resolution.

In granting Pacheos appeal, the CSC explained:

On the second issue, this Commission finds merit in appellants contention that her reassignment in not valid. Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40, series of 1998, dated December 14, 1998, which provides: Section 6. Other Personnel Movements. The following personnel movements which will not require issuance of an appointment shall nevertheless require an office order by duly authorized official. a. Reassignment Movement of an employee from one organizational unit to another in the same department or agency which

39 | P a g e

does not involve reduction in rank, status or salary. If reassignment is done without consent of the employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal. No assignment shall be undertaken if done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest. Reassignment of small salaried employee is not permissible if it causes significant financial dislocation. Although reassignment is a management prerogative, the same must be done in the exigency of the service without diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned. Reassignment of small salaried employees, however is not allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the Commission will have to intervene. The primary purpose of emphasizing small salaried employees in the foregoing rule is to protect the rank and file employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled: x x x [T]he protection against invalid transfer is especially needed by lower ranking employees. The Court emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the government set up occupy positions in the higher echelon should be entitled to security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of advancement on the merit system instituted by our civil service law. In other words, in order to be embraced in the term small-salaried employees, the latter must belong to the rank and file; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. Rank and file was categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991. The facts established on record show that Pacheo belongs to the rank and file receiving an average monthly salary of Twenty Thousand Pesos (₱20,000.00) under the salary standardization law and a monthly take home pay of Fourteen Thousand Pesos (₱14,000.00). She has to spend around Four Thousand Pesos (₱4,000.00) a month for her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her monthly take home pay. Clearly, Pacheos salary shall be significantly reduced as a result of her reassignment.

40 | P a g e

In ANORE, Ma. Theresa F., this Commission ruled:

Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in the island and spend for her board and lodging. The circumstances surrounding Anores reassignment is exactly the kind of reassignment that is being frowned upon by law. This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay. Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report to work either at her new place of assignment or at her original station.xiv [Emphases in the original]

Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not finding that she was constructively dismissed and, therefore, entitled to back salary.

On March 7, 2006, the CSC issued Resolution No. 060397xiv denying Pacheos motion for reconsideration.

Undaunted, Pacheo sought recourse before the CA via a petition for review.

In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of Pacheo, the fallo of which states: 41 | P a g e

WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full backwages and benefits. SO ORDERED.xiv

In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:

While this Court agrees that petitioners reassignment was not valid considering that a diminution in salary is enough to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result thereof. It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his continued employment. The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting to mind the basic elements of justice and fair play. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. In this case, petitioners reassignment will result in the reduction of her salary, not to mention the physical burden that she would suffer in waking up early in the morning to travel daily from Quezon City to San Fernando, Pampanga and in coming home late at night. Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no other choice but to forego her continued employment. Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in petitioners salary and then rule that there is no constructive dismissal just because said reduction in salary will not render petitioner penniless if she will report to her new place of assignment. It must be noted that there is constructive dismissal when the reassignment of an employee involves a diminution in pay.

42 | P a g e

Having determined that petitioner has been constructively dismissed as a result of her reassignment, We shall resolve whether or not she is entitled to backwages. In denying petitioners claim for backwages, the CSC held: This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay. Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report for work either at her new place of assignment or at her original station. Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division Chief, who could not just abandon her duties merely because she protested her reassignment and filed an appeal afterwards.

We do not agree. If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The No work, no pay principle contemplates a no work situation where the employees voluntarily absent themselves. In this case, petitioner was forced to forego her continued employment and did not just abandon her duties. In fact, she lost no time in protesting her reassignment as a form of constructive dismissal. It is settled that the filing of a complaint for illegal dismissal is inconsistent with a charge of abandonment. The filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment. Neither do we agree with the OSG when it opined that: No one in the Civil Service should be allowed to decide on whether she is going to accept or not any work dictated upon by the exigency of the service. One should consider that public office is a public trust and that the act of respondent CIR enjoys the presumption of regularity. To uphold the failure of respondent to heed the RTAO would result in chaos. Every employee would put his or her vested interest or personal opinion over and above the smooth functioning of the bureaucracy.

Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.

43 | P a g e

The State shall afford full protection to labor, xxx and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to xxx security of tenure xxx Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis. In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSGs opinion that when the transfer is motivated solely by the interest of the service of such act cannot be considered violative of the Constitution, thus: We do not agree to this view. While temporary transfers or assignments may be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the Administrative Code which party provides that The Department Head also may, from time to time, in the interest of the service, change the distribution among the several Bureaus and offices of his Department of the employees or subordinates authorized by law, such cannot be undertaken when the transfer of the employee is with a view to his removal. Such cannot be done without the consent of the employee. And if the transfer is resorted to as a scheme to lure the employee away from his permanent position, such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service. It is not without reason that this Court made the following observation: To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of selfrespect and reasonable ambition. Clearly, the principle of no work, no pay does not apply in this case. As held in Neeland v. Villanueva, Jr: We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did not work. For the principle of no work, no pay does not apply when the employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee could offer no work since he was forced out of work. Thus,

44 | P a g e

to always require complete exoneration or performance of work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was. Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for back salaries and other economic benefits on these grounds. We would otherwise be serving justice in halves.

An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement. 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.xiv

The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007 Resolution. Hence, this petition.

THE ISSUES

WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENTS REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807. WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.xiv 45 | P a g e

In her Memorandum,xiv Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies of the revenue service, was solely meant to harass her and force her to resign. As a result of her invalid reassignment, she was constructively dismissed and, therefore, entitled to her back salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.

In its own Memorandum,xiv the CSC, through the OSG, argues that constructive dismissal is not applicable in this case because it was Pacheo herself who adamantly refused to report for work either in her original station or new place of assignment in clear violation of Section 24 (f) of Presidential Decree (PD) No. 807.xiv Citing jurisprudence,xiv the CSC avers that the RTAO is immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have first reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment. Since Pacheo did not report for work at all, she is not entitled to backwages following the principle of no work, no pay.

THE COURTS RULING

The petition fails to persuade.

It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum, the OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheos reassignment from Quezon City to San Fernando, Pampanga. Later, however, it specifically prays for the reinstatement of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO No. 25-2002 as not valid. In seeking such relief, the OSG has effectively accepted the finding of the CSC, as affirmed by the CA, that Pacheos reassignment was indeed invalid. Since the issue of Pacheos reassignment is already settled, the Court finds it futile to pass upon the same at this point.

46 | P a g e

The question that remains to be resolved is whether or not Pacheos assignment constitutes constructive dismissal and, thus, entitling her to reinstatement and backwages. Was Pacheo constructively dismissed by reason of her reassignment?

The Court agrees with the CA on this point.

While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or a scheme to lure him away from his permanent position, or when it is designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service.xiv

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines constructive dismissal as a situation when an employee quits his work because of the agency heads unreasonable, humiliating, or demeaning actuations which render continued work impossible. Hence, the employee is deemed to have been illegally dismissed. This may occur although there is no diminution or reduction of salary of the employee. It may be a transfer from one position of dignity to a more servile or menial job.

The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work either in her original station in Quezon City or her new place of assignment in San Fernando, Pampanga negates her claim of constructive dismissal in the present case being in violation of Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].xiv It further argues that the subject RTAO was immediately executory, unless otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there was no justification for her reassignment.

47 | P a g e

Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally impossible for Pacheo to report to her original place of assignment in Quezon City considering that the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4, San Fernando, Pampanga to RR7, Quezon City, the very same position Pacheo formerly held. The reassignment of Pagarigan to the same position palpably created an impediment to Pacheos return to her original station.

The Court finds Itself unable to agree to CSCs argument that the subject RTAO was immediately executory. The Court deems it necessary to distinguish between a detail and reassignment, as they are governed by different rules.

A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6), thus: (6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [Underscoring supplied]

On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7), thus: (7) Reassignment.An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring supplied]

The principal distinctions between a detail and reassignment lie in the place where the employee is to be moved and in its effectivity pending appeal with the CSC. Based on the definition, a detail requires a movement from one agency to another while a reassignment requires a movement within the same agency. Moreover, pending appeal with the CSC, an order to detail is immediately executory, whereas a reassignment order does not become immediately effective.

48 | P a g e

In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from Quezon City to San Fernando, Pampanga within the same agency is undeniably a reassignment. The OSG posits that she should have first reported to her new place of assignment and then subsequently question her reassignment. It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the new place of assignment prior to questioning an alleged invalid reassignment imposed upon an employee. Pacheo was well within her right not to report immediately to RR4, San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an employees security of tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations. Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to illegal/constructive removal.xiv

The Court is not unaware that the BIR is authorized to assign or reassign internal revenue officers and employees as the exigencies of service may require. This authority of the BIR, however, should be prudently exercised in accordance with existing civil service rules.

Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back wages? The Court agrees with the CA that she is entitled to reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full back wages and benefits. It is a settled jurisprudencexiv that an illegally dismissed civil service employee is entitled to back salaries but limited only to a maximum period of five (5) years, and not full back salaries from his illegal dismissal up to his reinstatement.

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered reinstated without loss of

49 | P a g e

seniority rights but is only entitled to the payment of back salaries corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002. Republic of the Philippines Supreme Court Manila

EN BANC THE CIVIL SERVICE COMMISSION, vs

G.R. No. 187858

RICHARD G. CRUZ AUGUST 9, 2011

DECISION BRION, J.: This petition for review on certiorari assails the decisionxiv and the resolutionxiv 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. 080305xiv 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

50 | P a g e

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.xiv

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

51 | P a g e

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.xiv

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.xiv

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.xiv 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

52 | P a g e

Applying the ruling in Bangalisan v. Hon. CA,xiv 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.xiv

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.

53 | P a g e

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. CAxiv and De la Cruz v. CAxiv 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.

54 | P a g e

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.xiv

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,xiv 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;xiv 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.xiv

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)

55 | P a g e

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 suspensionxiv 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.xiv 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,xiv when Section 260 of the Revised Administrative Code of 1917 (RAC)xiv 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 56 | P a g e

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.xiv (emphasis and underscoring ours)

In Austria v. Auditor General,xiv 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 Fojasxiv interpreting the same provision, the Court first laid down the requisites for entitlement to back salaries. Said the Court: A perusal of the decisions of this Courtxiv 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.,xiv 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 punishmentxiv 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 57 | P a g e

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.xiv

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.,xiv 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.

58 | P a g e

Tan was subsequently reiterated in Taala v. Legaspi, et al.,xiv 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.xiv

The Taala ruling was reiterated in Cristobal v. Melchor,xiv Tan, Jr. v. Office of the President,xiv

De Guzman v. CSCxiv and Del Castillo v. CSCxiv - 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,xiv 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

59 | P a g e

pardon. We held that he was not entitled to back salaries since he was not illegally dismissed nor acquitted of the charge against him.xiv

Incidentally, under the Anti-Graft and Corrupt Practices Act,xiv 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,xiv the Court clarified that the silence of Section 42 (Lifting of Preventive Suspension Pending Administrative Investigation) of the Civil Service Decreexiv on the payment of back salaries, unlike its predecessor,xiv 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."xiv

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.

60 | P a g e

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.,xiv 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

61 | P a g e

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.xiv 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.xiv (emphases and underscoring ours)

The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia

v. City of Baguioxiv 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.xiv

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.xiv

In Miranda v. Commission on Audit,xiv 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.

62 | P a g e

In granting the petition, the Court ruled that since the lawxiv 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.xiv 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.xiv (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.xiv 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."xiv The CA also awarded him full backwages.xiv

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.xiv

The Court had the occasion to explain what constitutes exoneration in Bangalisan v. Hon.

CA,xiv 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, 63 | P a g e

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.xiv

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 64 | P a g e

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.xiv

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,xiv De la Cruz v. CA,xiv and Hon.

Gloria v. CA.xiv 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 wages in administrative disciplinary cases.xiv

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 investigationxiv and (ii) preventive suspension pending appeal;xiv compensation is due only for the period of preventive suspension pending appeal should the employee be ultimately exonerated.xiv Citing Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers,xiv Hon. Gloria ruled:

65 | P a g e

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.xiv (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

66 | P a g e

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

67 | P a g e

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 68 | P a g e

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.xiv

WHEREFORE, the petition is hereby DENIED. Costs against the petitioner.

SO ORDERED.

69 | P a g e

SECOND DIVISION

[G.R. No. 131255. May 20, 1998]

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the Province of Nueva Ecija, petitioner, vs. EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE INTERIOR& LOCAL GOVERNMENTS, represented by SECRETARY ROBERT Z. BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in his capacity as Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P. PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C. SANTOS, MR.VICENTE C. PALILIO, and MR. NAPOLEON G. INTERIOR, in their capacity as Provincial Board Members of Nueva Ecija, respondents. DECISION PUNO, J.: The case at bar involves the validity of the suspension from office of petitioner Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private respondent Oscar C. Tinio is the ViceGovernor of said province while private respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon G. Interior are members of the Sangguniang Panlalawigan. On September 17, 1996, private respondents filed with the Office of the President a lettercomplaint dated September 13, 1997 charging petitioner with grave misconduct and abuse of authority. Private respondents alleged that in the morning of September 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the Sangguniang Panlalawigan when petitioner belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall and uttered threatening words at them; close behind petitioner were several men with long and short firearms who encircled the area. Private respondents claim that this incident was an offshoot of their resistance to a pending legislative measure supported by petitioner that the province of Nueva Ecija obtain a loan of P150 million from the Philippine National Bank; that petitioner's acts were intended to harass them into approving this loan; that fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of quorum and the proposed legislative measure was not considered; that private respondents opposed the loan because the province of Nueva Ecija had an unliquidated obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier disclosed that the province could not afford to contract another obligation; that petitioner's act of barging in and intimidating private respondents was a serious insult to the integrity and independence of the Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private respondents' lives and safety. Private respondents prayed for the suspension or removal of petitioner; for an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial condition of the province, to wit:

70 | P a g e

"In this regard, we respectfully request for the following assistance from your good office: 1. To immediately suspend Governor N. [sic] Joson considering the actual dangers that we are facing now, and provide adequate police security detail for the Sangguniang Panlalawigan of Nueva Ecija. Should the evidence warrant after investigation, to order his removal from office. 2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by the auditors from the Commission on Audit Central Office with adequate police security assistance. Should the evidence so warrant, to file necessary charges against responsible and accountable officers. 3. To advise the Philippine National Bank to review the capability of the province of Nueva Ecija to secure more loans and the feasibility of the same in the light of the present financial condition of the province. Or if said loan will be contrary to sound banking practice, recommend its disapproval."xiv The letter-complaint was submitted with the joint affidavit of Elnora Escombien and Jacqueline Jane Perez, two (2) employees of the Sangguniang Panlalawigan who witnessed the incident. The letter was endorsed by Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth District, and Mayor Placido Calma, President of the Mayors' League of said province.xiv The President acted on the complaint by writing on its margin the following: "17 Sep 96 To: SILG info Exec. Sec. and Sec. of Justice: 1. Noted. There appears no justification for the use of force, intimidation or armed followers in the situation of 12 Sep at the Session Hall. 2. Take appropriate preemptive and investigative actions. 3. BREAK NOT the PEACE. FIDEL V. RAMOS (Signed)."xiv President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify "the use of force, intimidation or armed followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak not the peace." The letter-complaint together with the President's marginal notes were sent to Secretary Robert Z. Barbers on September 20, 1996. Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case against himxiv and attached to the notice a copy of the complaint and its annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in support thereof, within fifteen (15) days from receipt."xiv Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and private respondents to a conference to settle the controversy. The parties entered into an agreement whereby petitioner promised to maintain peace and order in the province while private respondents promised to refrain from filing cases that would adversely affect their peaceful coexistence.xiv

71 | P a g e

The peace agreement was not respected by the parties and the private respondents reiterated their letter-complaint. Petitioner was again ordered to file his answer to the letter-complaint within fifteen days from receipt. Petitioner received a copy of this order on November 13, 1996. On the same day, petitioner requested for an extension of thirty (30) days to submit his answer because he was "trying to secure the services of legal counsel experienced in administrative law practice."xiv The Department of the Interior and Local Government (DILG), acting through Director Almario de los Santos, Officer-In-Charge of the Legal Service, granted the motion, with the thirty-day extension to be reckoned, however, from November 13, 1996, i.e., the day petitioner received the order to answer.xiv In a letter dated December 9, 1996, petitioner moved for another extension of thirty (30) days to file his answer. He stated that he had already sent letters to various law firms in Metro Manila but that he had not yet contracted their services; that the advent of the Christmas season kept him busy with "numerous and inevitable official engagements."xiv The DILG granted the request for extension "for the last time up to January 13 only."xiv On January 7, 1997, petitioner requested for another extension of thirty (30) days to file his answer. According to him, the Christmas season kept him very busy and preoccupied with his numerous official engagements; that the law firms he invited to handle his case have favorably replied but that he needed time to confer with them personally; and that during this period, he, with the help of his friends, was exploring the possibility of an amicable settlement of the case.xiv The DILG granted petitioner's request "for the last time" but gave him an extension of only ten (10) days from January 13, 1997 to January 23, 1997. The DILG also informed him that his "failure to submit answer will be considered a waiver and that the plaintiff [shall] be allowed to present his evidence ex-parte."xiv Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of thirty (30) days on the following grounds: (a) that he was still in the process of choosing competent and experienced counsel; (b) that some law firms refused to accept his case because it was perceived to be politically motivated; and (c) the multifarious activities, appointments and official functions of his office hindered his efforts to secure counsel of choice.xiv Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of the DILG, issued an order declaring petitioner in default and to have waived his right to present evidence. Private respondents were ordered to present their evidence ex-parte. The order reads as follows: "ORDER It appearing that respondent failed to submit his answer to the complaint despite the grant to him of three (3) extensions, such unreasonable failure is deemed a waiver of his right to present evidence in his behalf pursuant to Section 4, Rule 4 of Administrative Order No. 23 dated December 17, 1992, as amended. Respondent is hereby declared in default, meanwhile, complainants are directed to present their evidence ex-parte. However, considering the prohibition on the conduct of administrative investigation due to the forthcoming barangay elections, complainants will be notified on the date after the barangay election for them to present their evidence. SO ORDERED."xiv Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to File Answer Ad Cautelam." Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved 72 | P a g e

for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered the order of default in the interest of justice. He noted the appearance of petitioner's counsel and gave petitioner "for the last time" fifteen (15) days from receipt to file his answer.xiv On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel, whose office is in Manila, should have received a copy of the May 19, 1997 order ten days after mailing on May 27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his right to present evidence in his behalf. Undersecretary Sanchez reinstated the order of default and directed private respondents to present their evidence ex-parte on July 15, 1997.xiv The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it was filed with the Office of the President; and that the DILG had no jurisdiction over the case and no authority to require him to answer the complaint. On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that the hearing on the merits of the case be held in abeyance until after the "Motion to Dismiss" shall have been resolved. On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an order, by authority of the President, placing petitioner under preventive suspension for sixty (60) days pending investigation of the charges against him.xiv Secretary Barbers directed the Philippine National Police to assist in the implementation of the order of preventive suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as petitioner's temporary legal incapacity shall have ceased to exist.xiv Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging the order of preventive suspension and the order of default.xiv Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and "Urgent Ex-Parte Motion for Reconsideration." In the same order, he required the parties to submit their position papers within an inextendible period of ten days from receipt after which the case shall be deemed submitted for resolution, to wit: "WHEREFORE, for lack of merit, both motions are denied. However, for this office to have a better appreciation of the issues raised in the instant case, the parties, through their respective counsels are hereby directed to submit their position papers within a period of ten (10) days from receipt hereof, which period is inextendible, after which the case is deemed submitted for resolution."xiv On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive Suspension." On September 10, 1997, petitioner followed this with a "Motion to Lift Default Order and Admit Answer Ad Cautelam."xiv Attached to the motion was the "Answer Ad Cautelam"xiv and sworn statements of his witnesses. On the other hand, complainants (private respondents herein) manifested that they were submitting the case for decision based on the records, the complaint and affidavits of their witnesses.xiv In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while he was at his district office in the town of Munoz, he received a phone call from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged to petitioner's political party, informed him that Vice-Governor Tinio was enraged at the members of the Sangguniang Panlalawigan who were in petitioner's party because they refused to place on the agenda the ratification of the 73 | P a g e

proposed P150 million loan of the province. Petitioner repaired to the provincial capitol to advise his party-mates on their problem and at the same time attend to his official functions. Upon arrival, he went to the Session Hall and asked the members present where Vice-Governor Tinio was. However, without waiting for their reply, he left the Hall and proceeded to his office. Petitioner claimed that there was nothing in his conduct that threatened the members of the Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor Tinio, he was always accompanied by his official security escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not inside the session hall during the incident but was at her desk at the office and could not in any way have seen petitioner in the hall. To attest to the truth of his allegations, petitioner submitted three (3) joint affidavits -- two (2) affidavits executed by six (6) and ten (10) employees, respectively, of the provincial government, and a third by four members of the Sangguniang Panlalawigan.xiv On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for Reconsideration" was rejected by Undersecretary Sanchez on October 8, 1997. Undersecretary Sanchez, however, granted the "Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997.xiv On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner prayed that a formal investigation of his case be conducted pursuant to the provisions of the Local Government Code of 1991 and Rule 7 of Administrative Order No. 23; and that this be held at the province of Nueva Ecija.xiv On October 29, 1997, petitioner submitted a "Manifestation and Motion" before the DILG reiterating his right to a formal investigation. In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition.xiv Hence this recourse. The proceedings before the DILG continued however. In an order dated November 11, 1997, the DILG denied petitioner's "Motion to Conduct Formal Investigation" declaring that the submission of position papers substantially complies with the requirements of procedural due process in administrative proceedings.xiv A few days after filing the petition before this Court, petitioner filed a "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that subsequent to the institution of this petition, the Secretary of the Interior and Local Governments rendered a resolution on the case finding him guilty of the offenses charged.xiv His finding was based on the position papers and affidavits of witnesses submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses to be "more natural, reasonable and probable" than those of herein petitioner Joson's.xiv On January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings and recommendation of the DILG Secretary. He imposed on petitioner the penalty of suspension from office for six (6) months without pay, to wit: "WHEREFORE, as recommended by the Secretary of the Interior and Local Government, respondent Nueva Ecija Governor Eduardo Nonato Joson is hereby found guilty of the offenses charged and is meted the penalty of suspension from office for a period of six (6) months without pay."xiv On January 14, 1998, we issued a temporary restraining order enjoining the implementation of the order of the Executive Secretary. 74 | P a g e

On January 19, 1998, private respondents submitted a Manifestation informing this Court that the suspension of petitioner was implemented on January 9, 1998; that on the same day, private respondent Oscar Tinio was installed as Acting Governor of the province; and that in view of these events, the temporary restraining order had lost its purpose and effectivity and was fait accompli.xiv We noted this Manifestation. In his petition, petitioner alleges that: "I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN THE CASE AGAINST PETITIONER GOVERNOR EDNO JOSON; II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE SECRETARY OF THE DILG WHO WAS EXERCISING THE POWERS OF THE PRESIDENT WHICH ARE CLEARLY VESTED BY LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY. III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic] PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES. IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO EVIDENCE OF GUILT AGAINST PETITIONER."xiv In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction," petitioner also claims that: "I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS. II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF PRELIMINARY INJUNCTION HEREIN PRAYED FOR."xiv We find merit in the petition. Administrative disciplinary proceedings against elective local officials are governed by the Local Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent Component Cities, and Cities and Municipalities in Metropolitan Manila."xiv In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987 apply in a suppletory character.xiv I Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the grounds 75 | P a g e

for which an elective local official may be disciplined, suspended or removed from office. Section 60 reads: "Sec. 60. Grounds for Disciplinary Actions. -- An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlunsod, sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court." When an elective local official commits an act that falls under the grounds for disciplinary action, the administrative complaint against him must be verified and filed with any of the following: "Sec. 61. Form and Filing of Administrative Complaints.-- A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. (b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President; and (c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory."xiv An administrative complaint against an erring elective official must be verified and filed with the proper government office. A complaint against an elective provincial or city official must be filed with the Office of the President. A complaint against an elective municipal official must be filed with the Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang Panlungsod or Sangguniang Bayan. In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The letter-complaint against him was therefore properly filed with the Office of the President. According to petitioner, however, the letter-complaint failed to conform with the formal requirements set by the Code. He alleges that the complaint was not verified by private respondents and was not supported 76 | P a g e

by the joint affidavit of the two witnesses named therein; that private respondents later realized these defects and surreptitiously inserted the verification and sworn statement while the complaint was still pending with the Office of the President.xiv To prove his allegations, petitioner submitted: (a) the sworn statement of private respondent Solita C. Santos attesting to the alleged fact that after the letter-complaint was filed, Vice-Governor Tinio made her and the other members of the Sangguniang Panlalawigan sign an additional page which he had later notarized; and (b) the fact that the verification of the letter-complaint and the joint affidavit of the witnesses do not indicate the document, page or book number of the notarial register of the notary public before whom they were made.xiv We find no merit in the contention of the petitioner. The absence of the document, page or book number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The lack of these entries may constitute proof of neglect on the part of the subscribing officer in complying with the requirements for notarization and proper verification. They may give grounds for the revocation of his notarial commission.xiv But they do not indubitably prove that the verification was inserted or intercalated after the letter-complaint was filed with the Office of the President. Nor is the fact of intercalation sufficiently established by the affidavit of Solita C. Santos. Private respondent Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that she be dropped as one of the complainants since she had just joined the political party of petitioner Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner Joson.xiv Private respondent Santos cannot in any way be considered an unbiased witness. Her motive and change of heart render her affidavit suspect. Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the President, the defect was not fatal. The requirement of verification was deemed waived by the President himself when he acted on the complaint. Verification is a formal, not jurisdictional requisite.xiv Verification is mainly intended to secure an assurance that the allegations therein made are done in good faith or are true and correct and not mere speculation.xiv The lack of verification is a mere formal defect.xiv The court may order the correction of the pleading, if not verified, or act on the unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that the ends of justice may be served.xiv II In his second assigned error, petitioner questions the jurisdiction and authority of the DILG Secretary over the case. He contends that under the law, it is the Office of the President that has jurisdiction over the letter-complaint and that the Court of Appeals erred in applying the alter-ego principle because the power to discipline elective local officials lies with the President, not with the DILG Secretary. Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23, to wit: "Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective local officials mentioned in the preceding Section shall be acted upon by the President. The President, who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining Authority."

Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby designated as the Investigating Authority. He may constitute an Investigating Committee in the Department of the Interior and Local Government for the purpose. 77 | P a g e

The Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating Committee in lieu of the Secretary of the Interior and Local Government."xiv Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee. The power of the President over administrative disciplinary cases against elective local officials is derived from his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides: "Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions."xiv The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties."xiv If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties.xiv The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.xiv Supervision is not incompatible with discipline.xiv And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires.xiv Thus: "Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be founded upon a knowledge of actual facts and conditions disclosed after careful study and investigation."xiv The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the President has the power derived from the Constitution itself to investigate complaints against local government officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to petitioner Joson's claim. The President remains the Disciplining Authority. What is delegated is the power to investigate, not the power to discipline.xiv Moreover, the power of the DILG to investigate administrative complaints is based on the alterego principle or the doctrine of qualified political agency. Thus: "Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act 78 | P a g e

in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive."xiv This doctrine is corollary to the control power of the President.xiv The power of control is provided in the Constitution, thus: "Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed."xiv Control is said to be the very heart of the power of the presidency.xiv As head of the Executive Department, the President, however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally.xiv The members of Cabinet may act for and in behalf of the President in certain matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority.xiv The procedure how the Disciplining and Investigating Authorities should exercise their powers is distinctly set forth in the Local Government Code and A.O. No. 23. Section 62 of the Code provides: "Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within fifteen (15) days from receipt thereof, and commence investigation of the case within ten (10) days after receipt of such answer of the respondent. xxx." Sections 1 and 3, Rule 5xiv of A.O. No. 23 provide: "Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the Disciplining Authority shall refer the complaint and answer, together with their attachments and other relevant papers, to the Investigating Authority who shall commence the investigation of the case within ten (10) days from receipt of the same. "x x x

"Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall determine whether there is a prima facie case to warrant the institution of formal administrative proceedings." When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order requiring the respondent to submit his verified answer within fifteen (15) days from notice. Upon filing of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for investigation. In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was the DILG Secretary who ordered petitioner to answer. Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No. 23. The Office should have first required petitioner to file his answer. Thereafter, the complaint and the answer should have been referred to the Investigating Authority for further proceedings. Be

79 | P a g e

that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable the President to make a preliminary assessment of the case.xiv The President found the complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter is entitled to respect in the absence of grave abuse of discretion. III In his third assigned error, petitioner also claims that the DILG erred in declaring him in default for filing a motion to dismiss. He alleges that a motion to dismiss is not a pleading prohibited by the law or the rules and therefore the DILG Secretary should have considered it and given him time to file his answer. It is true that a motion to dismiss is not a pleading prohibited under the Local Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to file a motion to dismiss in the order to file answer. Thrice, he requested for extension of time to file his answer citing as reasons the search for competent counsel and the demands of his official duties. And thrice, his requests were granted. Even the order of default was reconsidered and petitioner was given additional time to file answer. After all the requests and seven months later, he filed a motion to dismiss! Petitioner should know that the formal investigation of the case is required by law to be finished within one hundred twenty (120) days from the time of formal notice to the respondent. The extensions petitioner requested consumed fifty-five (55) days of this period.xiv Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed, this was more than sufficient time for petitioner to comply with the order to file answer. The speedy disposition of administrative complaints is required by public service. The efficiency of officials under investigation is impaired when a case hangs over their heads. Officials deserve to be cleared expeditiously if they are innocent, also expeditiously if guilty, so that the business of government will not be prejudiced.xiv IV In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending to the Disciplining Authority his preventive suspension during the investigation. Preventive suspension is authorized under Section 63 of the Local Government Code, viz: "Sec. 63. Preventive Suspension.-- (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; x x x. (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. x x x." In sum, preventive suspension may be imposed by the Disciplining Authority at any time (a) after the

80 | P a g e

issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Executive Secretary Torres, on behalf of the President, imposed preventive suspension on petitioner Joson after finding that: "x x x DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated 23 June 1997, recommends that respondent be placed under preventive suspension considering that all the requisites to justify the same are present. He stated therein that: 'Preventive suspension may be imposed at any time after the issues are joined, that is, after respondent has answered the complaint, when the evidence of guilt is strong and, given the gravity of the offense, there is a great possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence (Sec. 3, Rule 6 of Administrative Order No. 23). The failure of respondent to file his answer despite several opportunities given him is construed as a waiver of his right to present evidence in his behalf (Sec. 4, Rule 4 of Administrative Order No. 23). The requisite of joinder of issues is squarely met with respondent's waiver of right to submit his answer. The act of respondent in allegedly barging violently into the session hall of the Sangguniang Panlalawigan in the company of armed men constitutes grave misconduct. The allegations of complainants are bolstered by the joint-affidavit of two (2) employees of the Sangguniang Panlalawigan. Respondent who is the chief executive of the province is in a position to influence the witnesses. Further, the history of violent confrontational politics in the province dictates that extreme precautionary measures be taken.' Upon scrutiny of the records and the facts and circumstances attendant to this case, we concur with the findings of the Secretary of the Interior and Local Government and find merit in the aforesaid recommendation. WHEREFORE, and as recommended by the Department of the Interior and Local Government, respondent EDUARDO N. JOSON, Governor of Nueva Ecija, is hereby placed under PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July 1997, pending investigation of the charges filed against him. SO ORDERED."xiv Executive Secretary Torres found that all the requisites for the imposition of preventive suspension had been complied with. Petitioner's failure to file his answer despite several opportunities given him was construed as a waiver of his right to file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence against him. V We now come to the validity of the January 8, 1998 Resolution of the Executive Secretary finding petitioner guilty as charged and imposing on him the penalty of suspension from office for six (6)

81 | P a g e

months from office without pay. Petitioner claims that the suspension was made without formal investigation pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To Conduct Formal Investigation" three months before the issuance of the order of suspension and this motion was denied by the DILG for the following reasons: "On November 19, 1997, complainants, through counsel, filed a Manifestation calling our attention to the Decision dated October 24, 1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus Executive Secretary Ruben D. Torres, et. al." In the aforestated decision, the Court of Appeals resolved to sustain the authority of this Department to investigate this administrative case and has likewise validated the order of default as well as the order of preventive suspension of the respondent. We offer no objection and concur with the assertion of respondent that he has the right for the conduct of formal investigation. However, before there shall be a formal investigation, joinder of issues must already be present or respondent's answer has already been filed. In the case at bar, the admission of respondent's answer after having been declared in default was conditioned on the fact of submission of position papers by the parties, after which, the case shall be deemed submitted for resolution. Respondent, instead of submitting his position paper filed his subject motion while complainants manifested to forego the submission of position paper and submit the case for resolution on the basis of the pleadings on hand. Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied (Concerned Officials of the Metropolitan Waterworks and Sewerage System v. Vasquez, 240 SCRA 502). The essence of due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of one's defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process (Juanita Y. Say, et. al;. vs. IAC, G.R. No. 73451). Thus, when respondent failed to submit his position paper as directed and insisted for the conduct of formal investigation, he was not denied of his right of procedural process. WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of merit, is DENIED. SO ORDERED."xiv The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right to a formal investigation is spelled out in the following provisions of A.O. No. 23, viz: "SEC. 3 Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall determine whether there is a prima facie case to warrant the institution of formal administrative proceedings.

SEC. 4. Dismissal motu proprio. If the Investigating Authority determines that there is no prima facie case to warrant the institution of formal administrative proceedings, it shall, within the same period prescribed under the preceding Section, submit its recommendation to the Disciplining Authority for the motu proprio dismissal of the case, together with the recommended decision, resolution, and order. SEC. 5. Preliminary conference. If the Investigating Authority determines that there is prima facie case to warrant the institution of formal administrative proceedings, it shall, within

the same period prescribed under the preceding Section, summon the parties to a preliminary 82 | P a g e

conference to consider the following: a)

whether the parties desire a formal investigation or are willing to submit the case for resolution on the basis of the evidence on record; and

b)

If the parties desire a formal investigation, to consider the simplification of issues, the possibility of obtaining stipulation or admission of facts and of documents, specifically affidavits and depositions, to avoid unnecessary proof, the limitation of number of witnesses, and such other matters as may be aid the prompt disposition of the case.

The Investigating Authority shall encourage the parties and their counsels to enter, at any stage of the proceedings, into amicable settlement, compromise and arbitration, the terms and conditions of which shall be subject to the approval of the Disciplining Authority. After the preliminary conference, the Investigating Authority shall issue an order reciting the matters taken up thereon, including the facts stipulated and the evidences marked, if any. Such order shall limit the issues for hearing to those not disposed of by agreement or admission of the parties, and shall schedule the formal investigation within ten (10) days from its issuance, unless a later date is mutually agreed in writing by the parties concerned."xiv The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he disputed the truth of the allegations that he barged into the session hall of the capitol and committed physical violence to harass the private respondents who were opposed to any move for the province to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on petitioner the penalty of six (6) months suspension without pay. The rejection of petitioner's right to a formal investigation denied him procedural due process. Section 5 of A. O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As respondent, he is accorded several rights under the law, to wit: "Sec. 65. Rights of Respondent. -- The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum." An erring elective local official has rights akin to the constitutional rights of an accused.xiv These rights are essentially part of procedural due process.xiv The local elective official has the (1) right to appear and defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him; and (3) the right to compulsory attendance of witness and the production of documentary evidence. These rights are reiterated in the Rules Implementing the Local Government Codexiv and in A.O. No. 23.xiv Well to note, petitioner formally claimed his right to a formal investigation after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez. Petitioner's right to a formal investigation was not satisfied when the complaint against him was 83 | P a g e

decided on the basis of position papers. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda but this is only after formal investigation and hearing.xiv A.O. No. 23 does not authorize the Investigating Authority to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses. Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned from the Local Government Code itself. In the Local Government Code, the entire Title II of Book I of the Code is devoted to elective officials. It provides for their qualifications and election,xiv vacancies and succession,xiv local legislation,xiv disciplinary actions,xiv and recall.xiv Appointive officers and employees are covered in Title III of Book I of the Code entitled "Human Resources and Development." All matters pertinent to human resources and development in local government units are regulated by "the civil service law and such rules and regulations and other issuances promulgated thereto, unless otherwise provided in the Code."xiv The "investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal" are "in accordance with the civil service law and rules and other pertinent laws," the results of which "shall be reported to the Civil Service Commission."xiv It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily governs appointive officials and employees. Their qualifications are set forth in the Omnibus Rules Implementing Book V of the said Code. The grounds for administrative disciplinary action in Book V are much more in number and are specific than those enumerated in the Local Government Code against elective local officials.xiv The disciplining authority in such actions is the Civil Service Commissionxiv although the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities are also given the power to investigate and decide disciplinary actions against officers and employees under their jurisdiction.xiv When a complaint is filed and the respondent answers, he must "indicate whether or not he elects a formal investigation if his answer is not considered satisfactory."xiv If the officer or employee elects a formal investigation, the direct evidence for the complainant and the respondent "consist[s] of the sworn statement and documents submitted in support of the complaint and answer, as the case may be, without prejudice to the presentation of additional evidence deemed necessary x x x, upon which the cross-examination by respondent and the complainant, respectively, is based."xiv The investigation is conducted without adhering to the technical rules applicable in judicial proceedings."xiv Moreover, the appointive official or employee may be removed or dismissed summarily if (1) the charge is serious and the evidence of guilt is strong; (2) when the respondent is a recidivist; and (3) when the respondent is notoriously undesirable.xiv The provisions for administrative disciplinary actions against elective local officials are markedly different from appointive officials.xiv The rules on the removal and suspension of elective local officials are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive officials but not to those elected. An elective official, elected by popular vote, is directly responsible to the community that elected him. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the services of the man they had elected. Implicit in the right 84 | P a g e

of suffrage is that the people are entitled to the services of the elective official of their choice.xiv Suspension and removal are thus imposed only after the elective official is accorded his rights and the evidence against him strongly dictates their imposition. IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent Executive Secretary is declared null and void and is set aside. No Cost. SO ORDERED.

85 | P a g e

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 202303

June 4, 2014

GERARDO R. VILLASEÑOR AND RODEL A. MESA, Petitioners, vs. OMBUDSMAN AND HON. HERBERT BAUTISTA, City Mayor, Quezon City, Respondents. DECISION MENDOZA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the March 15, 20121 and June 18, 20122 Resolutions of the Court of Appeals (CA). in CA G.R. SP No. 121378, which dismissed for utter lack of merit the petition to nullify or restrain the immediate implementation of the June 17, 2003 Joint Decision of the Office of the Ombudsman in OMB-ADM-001-0376 and OMB-ADM-0-01-0390, directing the dismissal from the service and one-year suspension of petitioners Gerardo R. Villaseñor (Villaseñor) and Rodel A. Mesa (Mesa), respectively. The Facts The petitioners, along with several others, were administratively charged in connection with the Manor Hotel fire tragedy that took place on August 18, 2001, killing 74 people and causing injury to others. Petitioner Villaseñor was an electrical inspector from the Electrical Division, and petitioner Mesa was an inspector from the Electrical Engineering Office, both of Quezon City. In OMB-ADM-0-01-0376, petitioner Villaseñor was charged with grave misconduct prejudicial to the best interest of the service and gross negligence. In OMB-ADM-00390, both petitioners were charged with violation of Section 4 of Republic Act (R.A.) No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). In its Joint Decision dated June 17, 2003, the Investigating Panel of the Office of the Ombudsman ruled as follows: 1. In OMB-ADM-0-01-0376, Villaseñor was found guilty of conduct prejudicial to the best interest of the service and gross neglect of duty for which he was meted the penalty of dismissal from the service with all its accessory penalties. 2. In OMB-ADM-0-01-0390, Mesa was found guilty of conduct prejudicial to the best interest of the service for which he was meted the penalty of one year suspension without pay.

86 | P a g e

In its Memorandum,3 dated July 26, 2004, the Ombudsman approved the findings in the Joint Decision as regards the petitioners. On December 13, 2004, Villaseñor and Mesa filed their separate motions for reconsideration4 of the Joint Decision. In the Memorandum,5 dated March 2, 2006, the Ombudsman denied the motion for reconsideration filed by Mesa and those of the other accused, and affirmed in toto the Joint Decision. Villaseñor’s motion for reconsideration, however, was not enumerated as one of the pleadings resolved.6 On April 18, 2006, Mesa appealed to the CA, which was docketed as CA-G.R. No. 93891. Villaseñor made no appeal, his motion for reconsideration before the Ombudsman being yet unresolved. In the Order7 dated August 23, 2006, pending resolution of Mesa’s appeal and Villaseñor’s motion for reconsideration, the Ombudsman directed the Mayor of Quezon City and the Secretary of the Department of Interior and Local Government to enforce the Joint Decision immediately upon receipt of the order. On September 20, 2011, Villaseñor and Mesa filed a special civil action for certiorari8 before the CA docketed as CA-G.R. SP No. 121378, assailing the August 23, 2006 Order of the Ombudsman ordering the immediate implementation of the Joint Decision despite the pendency of Villaseñor’s motion for reconsideration and Mesa’s appeal. They prayed that the said order be annulled and an injunction be issued to restrain its implementation. In the assailed March 15, 2012 Resolution,9 the CA dismissed the petition for utter lack of merit. It held that the Ombudsman decision was immediately executory pending appeal and would not be stayed by the filing of the appeal or issuance of an injunctive relief. In the assailed June 18, 2012 Resolution,10 the CA denied the petitioners’ motion for reconsideration. Hence, this petition. Issues And Arguments Petitioner Villaseñor argues that his constitutional right of not to be deprived of life, liberty and property without due process of law, was grossly violated by the Ombudsman when: 1. He was prevented from cross-examining complainant’s witnesses; 2. He failed to receive any copy of any order relative to the preliminary conference of the case; and 3. His dismissal from the service was ordered implemented while his motion for reconsideration remains unresolved. He argues that the order of dismissal cannot be deemed executory as it has not yet attained finality on account of his unresolved motion for reconsideration.

87 | P a g e

Petitioner Mesa, on the other hand, argues that the order of suspension against him should not have been implemented pending his appeal with the CA, in accordance with Section 7 of Rule III of the Office of the Ombudsman’s Rules of Procedure. He argues that Administrative Order (A.O.) No. 17, which took effect on September 7, 2003 and amended said Section 7, should not be applied to his case because it was promulgated long after the rendition of the order of his suspension on June 17, 2003. Mesa further argues that to apply the amendment to him will give it a retroactive effect which is prohibited under Article 4 of the Civil Code. Both petitioners aver that Ombudsman v. Samaniego,11 the case relied upon by the CA, cannot be applied to their case because the principal basis of the ruling was Section 7, as amended, which they insist is inapplicable to them. The first two issues raised by petitioner Villaseñor do not relate to the assailed CA Resolutions, which ruled upon the Order of the Ombudsman implementing the Joint Decision. They are, therefore, irrelevant to the present petition. The sole issue before the Court now is, thus: Whether the Ombudsman’s order of dismissal from the service and suspension of one year can be implemented pending resolution of petitioner Villaseñor’s motion for reconsideration before the Ombudsman, and petitioner Mesa’s appeal before the CA? The Ruling of the Court The petition must fail. Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O. No. 17, dated September 15, 2003, provides: SEC. 7. Finality and execution of decision.– Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the motion for reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against such officer. [Emphases supplied]

88 | P a g e

From the above, it can be gleaned that the Ombudsman decisions in administrative cases may either be unappealable or appealable. Unappealable decisions are final and executory, and they are as follows: (1) respondent is absolved of the charge; (2) the penalty imposed is public censure or reprimand; (3) suspension of not more than one month; and (4) a fine equivalent to one month’s salary. Appealable decisions, on the other hand, are those which fall outside said enumeration, and may be appealed to the CA under Rule 43 of the Rules of Court, within 15 days from receipt of the written notice of the decision or order denying the motion for reconsideration. Section 7 is categorical in providing that an appeal shall not stop the decision from being executory, and that such shall be executed as a matter of course. Petitioner Mesa was ordered suspended for one year without pay, while petitioner Villaseñor was ordered dismissed from the service. These are plainly appealable decisions which are immediately executory pending appeal. The petitioners cannot argue that A.O. No. 17, which makes appealable decisions of the Ombudsman immediately executory, cannot be applied to them. It is of no moment that A.O. No. 17 took effect on September 7, 2003, after the Joint Decision was issued against Mesa and Villaseñor on June 17, 2003. Of note are the facts that the Joint Decision was approved by the Ombudsman on November 26, 2004; the motions for reconsideration thereto were denied on March 2, 2006; and the Joint Decision was ordered implemented on August 23, 2006, all after A.O. No. 17 had already become effective. Article 4 of the Civil Code does indeed provide that laws shall have no retroactive effect. Rules regulating the procedure of courts, however, are retroactive in nature, and are, thus, applicable to actions pending and unresolved at the time of their passage. As a general rule, no vested right may attach to or arise from procedural laws and rules, hence, retroactive application does not violate any right of a person adversely affected.12 The Rules of Procedure of the Office of the Ombudsman are procedural in nature and therefore, may be applied retroactively to petitioners’ cases which were pending and unresolved at the time of the passing of A.O. No. 17. No vested right is violated by the application of Section 7 because the respondent in the administrative case is considered preventively suspended while his case is on appeal and, in the event he wins on appeal, he shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. It is important to note that there is no such thing as a vested interest in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office.13 The nature of appealable decisions of the Ombudsman was, in fact, settled in Ombudsman v. Samaniego, where it was held that such are immediately executory pending appeal and may not be stayed by the filing of an appeal or the issuance of an injunctive writ.14 The petitioners argue that this particular case cannot be applied to them because it was based on Section 7, as amended by A.O. No. 17,which cannot be applied to them retroactively. Their argument cannot be given credence. As already discussed, Section 7 may be retroactively applied in the case of the petitioners. It is, therefore, beyond cavil that petitioner Mesa’s appeal cannot stay the implementation of the order of suspension against him. Petitioner Villaseñor argues that the Ombudsman erred in implementing the order of dismissal against him despite his pending motion for reconsideration with the same office. 89 | P a g e

The records show that both petitioners duly filed their respective motions for reconsideration on December 13, 2004. In the March 2, 2006 Memorandum of the Ombudsman, Mesa’s motion for reconsideration, among others, was denied. Thus, he appealed to the CA. A review of the said Memorandum reveals, however, that Villaseñor’s motion for reconsideration was not enumerated15 as one of the pleadings submitted for resolution, and nowhere was his liability discussed or even mentioned therein. It is, therefore, apparent that Villaseñor’s motion for reconsideration was never resolved by the Ombudsman, for which reason he has been unable to file an appeal with the CA. Nonetheless, Villaseñor’s pending motion for reconsideration cannot stop his order of dismissal from being executory. Memorandum Circular No. 01, series of 2006, of the Office of the Ombudsman, provides in part: Section 7, Rule III of Administrative Order No. 07, otherwise known as, the "Ombudsman Rules of Procedure" provides that: "A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course." In order that the foregoing rule may be strictly observed, all concerned are hereby enjoined to implement all Ombudsman decisions, orders or resolutions in administrative disciplinary cases, immediately upon receipt thereof by their respective offices. The filing of a motion for reconsideration or a petition for review before the Office of the Ombudsman does not operate to stay the immediate implementation of the foregoing Ombudsman decisions, orders or resolutions. xxx [Emphasis supplied] Thus, petitioner Villaseñor’s filing of a motion for reconsideration does not stay the immediate implementation of the Ombudsman’s order of dismissal, considering that "a decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course" under Section 7. As already explained, no vested right of Villaseñor would be violated as he would be considered under preventive suspension, and entitled to the salary and emoluments he did not receive in the event that he wins his eventual appeal. The Ombudsman did not, therefore, err in implementing the orders of suspension of one year and dismissal from the service against the petitioners. The Court notes, however, that under Section 8 of Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O. No. 17, the Hearing Officer shall decide a motion for reconsideration within S days from the date of submission for resolution. Petitioner Villaseñor filed his motion for reconsideration on December 13, 2004, on the same day as petitioner Mesa, whose motion was duly resolved. Whether by oversight or negligence, a period nearly I 0 years has elapsed without action on Villase11or's motion for reconsideration. The Office of the Ombudsman is called upon to be more vigilant in carrying out its functions and in complying with the periods laid clown in the law.1âwphi1 WHEREFORE, the petition is DENIED. The March 15, 2012 and June 18, 2012 Resolutions of the Court of Appeals, in CA G.R. SP No. 121378 are AFFIRMED.

90 | P a g e

The Office of the Ombudsman is DIRECTED to resolve the motion for reconsideration of petitioner Gerardo R. ViIlaseñor in OMB-A DM-0-01-03 76 and OMB-ADM-0-01-0390 with immediate dispatch.

91 | P a g e