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SECOND DIVISION

[G.R. No. L-26803. October 14, 1975.] AMERICAN TOBACCO COMPANY, CARNATION COMPANY, CURTISS CANDY COMPANY, CUDAHY PACKING CO., CLUETT, PEABODY & CO., INC., CANNON MILLS COMPANY, FORMICA CORPORATION, GENERAL MOTORS CORPORATION, INTERNATIONAL LATEX CORPORATION, KAYSER-ROTH CORPORATION, M & R DIETETIC LABORATORIES, INC., OLIN MATHIESON, PARFUM CIRO, INC., PROCTER & GAMBLE COMPANY, PROCTER & GAMBLE PHILIPPINE MANUFACTURING CORPORATION, PARFUMS PORVIL DENTRIFICES DU DOCTEUR PIERRE REUNIS SOCIETE ANONYME, R.J. REYNOLDS TOBACCO COMPANY, SWIFT AND COMPANY, STERLING PRODUCTS INTERNATIONAL, THE CLOROX COMPANY, WARNER LAMBERT PHARMACEUTICALS COMPANY and ZENITH RADIO CORPORATION, petitioners, vs. THE DIRECTOR OF PATENTS, ATTYS. AMANDO L. MARQUEZ, TEOFILO P. VELASCO, RUSTICO A. CASIA and HECTOR D. BUENALUZ, respondents.

Lichauco, Picazo & Agcaoili for petitioners. Office of the Solicitor General for respondents.
DECISION ANTONIO, J :
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In this petition for mandamus with preliminary injunction, petitioners challenge the validity of Rule 168 of the "Revised Rules of Practice before the Philippine Patent Office in Trademark Cases" as amended, authorizing the Director of Patents to designate any ranking official of said office to hear "inter partes" proceedings. Said Rule likewise provides that "all judgments determining the merits of the case shall be personally and directly prepared

by the Director and signed by him." These proceedings refer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or service-mark, and cancellation of registration of a trade-mark or trade name pending at the Patent Office. Petitioners are parties, respectively, in the following opposition, interference and cancellation proceedings in said Office: Inter Partes Cases Nos. 157, 392, 896, 282, 247, 354, 246, 332, 398, 325, 374, 175, 297, 256, 267, 111, 400, 324, 114, 159, 346, and 404. Under the Trade-mark Law (Republic Act No. 166), the Director of Patents is vested with jurisdiction over the above-mentioned cases. Likewise, the Rules of Practice in Trade-mark Cases contains a similar provision, thus:
"168. Original jurisdiction over inter partes proceedings. The Director of Patents shall have original jurisdiction over inter partes proceedings. In the event that the Patent Office should be provided with an Examiner of Interferences, this Examiner shall have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences takes over the original jurisdiction over inter partes proceedings, his final decision shall be subject to appeal to the Director of Patents within three months of the receipt of notice of decisions. Such appeals shall be governed by sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate and the appeal fee shall be P25.00."

The Rules of Practice in Trade-mark Cases were drafted and promulgated by the Director of Patents and approved by the then Secretary of Agriculture and Commerce. 1 Subsequently, the Director of Patents, with the approval of the Secretary of Agriculture and Commerce, amended the aforequoted Rule 168 to read as follows:.
"168. Original jurisdictional inter partes proceedings. The Director of Patents shall have original jurisdiction over inter partes proceedings. [In the event that the Patent Office is provided with an Examiner of Interferences, this Examiner shall then have the original jurisdiction over these cases, instead of the Director. In the case that the Examiner of Interferences taxes over the original jurisdiction over inter partes proceedings, his final decisions shall be subject to appeal to the Director of Patents within three months of the receipt of notice of

decision. Such appeals shall be governed by Sections 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15, and 22 of Rule 41 of the Rules of Court insofar as said sections are applicable and appropriate, and the appeal fee shall be P25.00.] Such inter partes proceedings in the Philippine Patent Office under this Title shall be heard before the Director of Patents, any hearing officer, or any ranking official of the office designated by the

Director but all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him.
(Emphasis supplied.).

In accordance with the amended Rule, the Director of Patents delegated the hearing of petitioners' cases to hearing officers, specifically, Attys. Amando Marquez, Teofilo Velasco, Rustice Casia and Hector Buenaluz, the other respondents herein. Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decide inter partes case. Said objections were overruled by the Director of Patents, hence, the present petition for mandamus, to compel the Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers. It would take an extremely narrow reading of the powers of the Director of Patents under the general law 2 and Republic Acts Nos. 165 3 and 166 to sustain the contention of petitioners. Under section 3 of RA 165, the Director of Patents is "empowered to obtain the assistance of technical, scientific or other qualified officers or employees of other departments, bureaus, offices, agencies and instrumentalities of the Government, including corporations owned, controlled or operated by the Government, when deemed necessary in the consideration of any matter submitted to the Office relative to the enforcement of the provisions" of said Act. Section 78 of the same Act also empowers "the Director, subject to the approval of the Department Head," to "promulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all business in the Patent Office." The aforecited statutory authority undoubtedly also applies to the administration and enforcement of the Trade-mark Law (Republic Act No. 166).
3*

It has been held that power conferred upon an administrative agency to which the administration of a statute is entrusted to issue such regulations and orders as may be deemed necessary or proper in order to carry out its purposes and provisions may be an adequate source of authority to delegate a particular function, unless by express provisions of the Act or by implication

it has been withheld. 4 There is no provision either in Republic Act No. 165 or 166 negativing the existence of such authority, so far as the designation of hearing examiners by concerned. Nor can the absence of such authority be fairly inferred from contemporaneous and consistent Executive interpretation of the Act. The nature of the power and authority entrusted to the Director of Patents suggests that the aforecited laws (Republic Act No. 166, in relation to Republic Act No. 165) should be construed so as to give the aforesaid official the administrative flexibility necessary for the prompt and expeditious discharge of his duties in the administration of said laws. As such officer, he is required, among others, to determine the question of priority in patent interference proceedings, 5 decide applications for reinstatement of a lapsed patent, 6 cancellations of patents under Republic Act No. 165, 7 inter partes proceedings such as oppositions, 8 claims of interference, 9 cancellation cases under the Trade-mark Law 10 and other matters in connection with the enforcement of the aforesaid laws. It could hardly be expected, in view of the magnitude of his responsibility, to require him to hear personally each and every case pending in his Office. This would leave him little time to attend to his other duties. 11 For him to do so and at the same time attend personally to the discharge of every other duty or responsibility imposed upon his Office by law would not further the development of orderly and responsible administration. The reduction of existing delays in regulating agencies requires the elimination of needless work at top levels. Unnecessary and unimportant details often occupy far too much of the time and energy of the heads of these agencies and prevent full and expeditious consideration of the more important issues. The remedy is a far wider range of delegations to subordinate officers. This subdelegation of power has been justified by "sound principles of organization" which demand that "those at the top be able to concentrate their attention upon the larger and more important questions of policy and practice, and their time be freed, so far as possible, from the consideration of the smaller and far less important matters of detail." 12 Thus, it is well-settled that while the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. 13 The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his

decisions. 14 It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. 15 In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. 16 It is, however, required that to "give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the determinations must consider and appraise the evidence which justifies them." 17 In the case at bar, while the hearing officer may make preliminary rulings on the myriad of questions raised at the hearings of these cases, the ultimate decision on the merits of all the issues and questions involved is left to the Director of Patents. Apart from the circumstance that the point involved is procedural and not jurisdictional, petitioners have not shown in what manner they have been prejudiced by the proceedings. Moreover, as then Solicitor General Antonio P. Barredo, now a Member of this Court, has correctly pointed out, the repeated appropriations by Congress for hearing officers of the Philippine Patent Office from 1963 to 1968 18 not only confirms the departmental construction of the statute, but also constitutes a ratification of the act of the Director of Patents and the Department Head as agents of Congress in the administration of the law. 19 WHEREFORE, the instant petition is hereby dismissed, with costs against petitioners.

Castro (Actg. C.J.), Muoz Palma, Aquino and Martin, JJ., concur. Fernando, J., is on leave. Barredo, J., did not take part. Muoz Palma and Martin, JJ., were designated to sit in the Second Division.

EN BANC

[G.R. No. 139792. November 22, 2000.] ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents.

Antonio F. Navarrete for petitioner. The Solicitor General for respondents.


SYNOPSIS Petitioner was appointed Judge of the MeTC of Quezon City and thereafter assumed office. Subsequently, petitioner optionally retired from the Judiciary under R.A. 910, as amended, and received his retirement gratuity under the law for his entire years in the government service, and five years thereafter he has been regularly receiving a monthly pension. On 1 March 1995, Congress enacted R.A. No. 7924 which reorganized the Metropolitan Manila Authority (MMA) and renamed it as Metropolitan Manila Development Authority (MMDA). Subsequently, the MMDA issued a Resolution which authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. 7924. Petitioner was informed by the MMDA that having opted to be separated from the service, he would be entitled to separation benefits equivalent to one and one-fourth (1-1/4) monthly salary for every year of service under Sec. 11 of the MMDA law. In his Position Paper, petitioner asserted that since the retirement gratuity he received under R.A. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924. The Civil Service Commission (CSC) held that petitioner cannot be paid retirement benefits twice one under R.A. 910, as amended, and another under R.A. No. 7924 for the same services he rendered as MeTC Judge. Petitioner then filed with the Court of Appeals a Petition to set aside the resolution of the CSC. The Court of Appeals ruled that the CSC was correct in dismissing petitioner's appeal from the opinion of the CSC-NCR Regional Office. Hence, this petition. The Supreme Court agreed with the Court of Appeals and the CSC that for the purpose of computing or determining petitioner's separation pay under Sec. 11

of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA. The provision of Sec. 8, 2nd par. of Article IX-B of the Constitution which provides that pensions or gratuities shall not be considered as additional, double, or indirect compensation simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. However, to credit petitioner's years of service in the Judiciary in the computation of his retirement pay under R.A. No. 7924 despite having received the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Sec. 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA. The petition was denied and the decision of the Court of Appeals was affirmed. SYLLABUS 1.POLITICAL LAW; ADMINISTRATIVE LAW; REPUBLIC ACT NO. 7924; METROPOLITAN MANILA DEVELOPMENT AUTHORITY; SEPARATION PAY UNDER SECTION 11 OF R.A. 7924 SOLELY CONFINED TO SERVICES RENDERED IN THE MMA. In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of "one and one-fourth (1) months of salary for every year of service" cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is settled that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices. However, the power to abolish is subject to the condition that it be exercised in good faith. The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected.
CIAcSa

2.ID.; ID.; ID.; DOUBLE COMPENSATION, CONCEPT; A RETIREE RECEIVING PENSION OR GRATUITY CAN CONTINUE TO RECEIVE IT EVEN IF HE ACCEPTS ANOTHER GOVERNMENT POSITION TO WHICH ANOTHER COMPENSATION IS ATTACHED. The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides: Pensions or

gratuities shall not be considered as additional, double, or indirect compensation. This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another government position to which another compensation is attached. Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA. 3.ID.; ID.; ID.; ID.; CREDITING THE YEARS OF SERVICE IN THE JUDICIARY IN THE COMPUTATION OF SEPARATION PAY UNDER R.A. 7924 AND RECEIVING RETIREMENT BENEFITS UNDER R.A. NO. 910 CONSTITUTE DOUBLE COMPENSATION. [T]o credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. DECISION DAVIDE, JR., C. J :
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In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals 1 in CA-G.R. SP No. 48301, which held that petitioner's separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension.
DIETcC

The undisputed facts are as follows:

On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the military-backed EDSA revolt, petitioner was reappointed to the same position. On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, 2 as amended, and received his retirement gratuity under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension. On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of the MMA. His appointment was approved by the Civil Service Commission (CSC). On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA). Section 11 thereof reads:
SECTION 11.Transitory Provisions. To prevent disruption in the delivery of basic urban services pending the full implementation of the MMDA's organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and of being transferred to another office or position. xxx xxx xxx The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced. The national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of one and one-fourth (1) month's salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder.
IcaHTA

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. No. 7924.

On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his "voluntary option to be separated from the service" his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to "separation benefits equivalent to one and one-fourth (1) monthly salary for every year of service as provided under Section 11 of the MMDA Law." In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.

On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioner's separation pay must be in accordance withCivil Service Resolution No. 92-063, pertinent portions of which read:
[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when officers and employees who were previously granted said benefits are rehired or reemployed in another government Agency or Office. Thus, there is no need for separated employees to refund the separation/retirement benefits they received when subsequently reemployed in another government agency or office. . . . This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the employee concerned. Moreover, in this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay received.

His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.
AIDTHC

On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioner's appeal. Citing Chaves v. Mathay, 3 it held that petitioner cannot be paid retirement benefits twice one under R.A. No. 910, as amended, and another under R.A. No. 7924 for the same services he rendered as MeTC Judge. He can only exercise one of two options in the computation of his separation pay under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2 months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service. On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner's motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions. On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the CSC was "correct in dismissing petitioner's appeal from the opinion of Director Acebedo." It ratiocinated as follows:
There is no specific rule of law which applies to petitioner's case. Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth (1) month's salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic]. Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge. Equity dictates that he should no longer be allowed to receive further gratuity for said years of service in the guise of separation pay. Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service. The

State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to an employee who has given up the best years of his life to the service of his country (Gov't. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188). Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of petitioner's government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.
ScaEIT

The Court, in limiting the computation of petitioner's separation pay to the number of years of his service at the MMA, merely is implementing the ruling in "Chavez, Sr. vs. Mathay" (37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing to its "common-sense consideration." Said ruling reads: "The 'common-sense consideration' stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his years of service under his first retirement in computing his gratuity under his second retirement, it is but just that the retirement gratuity received by him under his first retirement should also be charged to his account, manifestly govern the case at bar. It is but in accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or pension such as petitioner's, 'would run roughshod over the well-settled rule that in the absence of an express legal exception, pension

and gratuity laws should be so construed as to preclude any person from receiving double pension.'" (p. 780, italics supplied)

The case at bench is not, strictly speaking, about 'double pension.' It is, however, about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same years of service.

We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioner's separation pay under Section 11 of R.A. No. 7924, his years of

service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA. In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of "one and one-fourth (1) months of salary for every year of service" cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is settled that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices. 4However, the power to abolish is subject to the condition that it be exercised in good faith. 5 The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected. Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he were convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:
Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder.
IDAESH

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension. The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:
Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. 6

Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA. However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. 7 More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:
No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law . . .

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA.
ISaCTE

WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED. Costs against petitioner. SO ORDERED.
Laurel V vs. CSC, 203 SCRA 195 FACTS: Petitioner, the duly elected Governor of the Province of Batangas, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official. Upon the vacancy of the position of Provincial Administrator of Batangas, petitioner designated his brother as Acting Provincial Administrator. Then, he issued Benjamin Laurel a promotional appointment as Civil Security Officer which is a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868.

ISSUE: Does nepotism apply to designation? RULING: Yes. The court ruled that petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity and the case does not fall within any of the exemptions provided therein. The exemption in the said section covering confidential positions cannot be considered since the said position is not primarily confidential for it belongs to the career service. Petitioners contention that the designation of his brother is not covered by the prohibition cannot be accepted for by legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading the section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose.

THIRD DIVISION
[G.R. No. 71562. October 28, 1991.] JOSE C. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner, vs. CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.

Provincial Attorney for petitioner.


SYLLABUS 1.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; POSITION OF PROVINCIAL ADMINISTRATOR; EMBRACED WITHIN THE CIVIL SERVICE. The position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions. It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to

higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination. It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807. 2.ID.; ID.; CLASSES OF POSITION; DETERMINED BY THE NATURE OF THE POSITION; EXECUTIVE PRONOUNCEMENT CAN BE NO MORE THAN INITIAL DETERMINATION THAT ARE NOT CONCLUSIVE IN CASE OF CONFLICT. In Piero, et al. vs. Hechanova, et al., (18 SCRA 417) this Court had the occasion to rule that: "It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII of the Constitution." This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads: " . . . and only the President may declare a position policydetermining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission." For the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Constitution which was then in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is the nature of the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining, primarily confidential, or highly technical." 3.ID.; ID.; PERSON APPOINTED TO A NON-CAREER POSITION; SHALL NOT PERFORM THE DUTIES BELONGING TO CAREER POSITION. We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a

primarily confidential position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24 (f of R.A. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service). 4.ID.; ID.; APPOINTMENT IN CAREER SERVICE POSITION; RULE. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. 5.ID.; ID.; NEPOTISM; PROBATIVE THEREOF INCLUDES DESIGNATION; REASON THEREFOR. Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for: "By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty." In Borromeo vs. Mariano, this Court said: " . . . All the authorities unite in saying that the term 'appoint' is wellknown in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual . . . ." 6.ID.; ID.; DESIGNATION; DEEMED INCLUDED IN TERM APPOINTMENT. In Binamira vs. Garrucho, [188 SCRA 154, 159] this Court, per Mr. Justice Isagani A. Cruz, stated: "Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a

specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named." It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 7.ID.; ID.; COMPLAINT AGAINST GOVERNMENT OFFICIALS OR EMPLOYER; MAY BE FILED BY ANY PRIVATE CITIZEN. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants, with the power and function to administer and enforce the constitutional and statutory provisions on the merit system. Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth to the constitutional exhortation that a public office is a public trust and public officers and employees must at all times be, inter alia, accountable to the people. An ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises, support and encouragement of society. The vigilance of the citizenry is vital in a democracy. RESOLUTION

DAVIDE, JR., J :
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Is the position of Provincial Administrator primarily confidential? Does the rule on nepotism apply to designation? May a private citizen who does not claim any better right to a position file a verified complaint with the Civil Service Commission to denounce a violation by an appointing authority of the Civil Service Law and rules?

These are the issues raised in this petition. The antecedent facts are not disputed.

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Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official. 1 On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked. 2 On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3 On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4 to bring to its attention the "appointment" of Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his brother. He alleges therein that: (1) the position in question is a career position, (2) the appointment violates civil service rules, and (3) since the Governor authorized said appointee to receive representation allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated.

In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential in nature; and, with respect to the position of Provincial Administrator:
" . . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, like that of a provincial administrator. Governor Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely designated him 'Acting Provincial Administrator.' And 'appointment' and 'designation' are two entirely different things. Appointment implies original establishment of official relation. Designation is the imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes a previous appointment of the officer in whom the new or additional duties are imposed. Appointment is generally permanent, hence the officer appointed cannot be removed except for cause; designation is merely temporary and the new or additional powers may be withdrawn with or without cause. Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor when Governor Laurel designated him Acting Provincial Administrator."

It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:
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"As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance of P350.00. And said allowance is 'strictly on reimbursement basis.' " 6

On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358 7 which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:
"SECTION 49.Nepotism. (a) All appointments in the national, provincial, city and municipal governments or in any branch or

instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. As used in this Section, the word 'relative' and members of the family referred to are those related within the third degree either of consanguinity or affinity. (b)The following are exempted from the operation of the rules on nepotism: (1) persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission." xxx xxx xxx

Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service Commission ruled that "the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service). The petitioner, therefore, could not legally and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No. 5185. Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service Commission maintains that said position is not primarily-confidential in nature since it neither belongs to the personal staff of the Governor nor are the duties thereof confidential in nature considering that its principal functions involve general planning, directive and control of administrative and personnel service in the Provincial Office, petitioner filed the instant petition invoking the following grounds:
"A.Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess of jurisdiction when it held that the position of provincial administrator is not a primarily-confidential

position because said ruling is diametrically opposed to, and in utter disregard of rulings of this Honorable Court as to what is a primarilyconfidential position under Article XII-B, Sec. 2 of the Constitution. B.Respondent Commission gravely abused its discretion and acted without jurisdiction when it arrogated unto itself the power to review a designation made by petitioner by virtue of the powers in him vested under Section 2077 of the Revised Administrative Code. C.Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private respondent and thereafter promulgated the resolutions under question in this petition. D.There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law available to petitioner to have the questioned resolutions of respondent Commission reviewed and thereafter nullified, revoked and set aside, other than this recourse to a petition for certiorari under Rule 65 of the Rules of Court.
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In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains the challenged resolutions and contends that the position of Provincial Administrator is intended to be part of the career system and since it requires a specific civil service eligibility, it belongs to the career service underSection 5(1) of P.D. No. 807 and has not been declared primarily confidential by the President pursuant to Section 1 of P.D. No. 868; that the Commission has the authority to review, disapprove, and set aside even mere designations, as distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants; and that it can act on Sangalang's complaint pursuant toSection 37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an administrative complaint to correct a violation of the Civil Service law and rules which involved public service and the public interest. Per Benitez vs. Paredes, 10 reiterated in Taada vs. Tuvera, 11 where the question is one of public right, the people are regarded as the real parties in interest, and the relator at whose instigation the proceedings are instituted need only show that he is a citizen and as such interested in the execution of the laws. On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties, functions and responsibilities of the Provincial Administrator render said position primarily confidential in nature, the requirement of a specific service eligibility and absence of a presidential declaration that the position is

primarily confidential do not place the said position in the career service; the position of Provincial Administrator is in the non-career service; and that the Benitez vs. Paredesand Taada vs. Tuvera cases are not applicable in this case. Petitioner insists that the controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court held that there are two instances when a position may be considered primarily confidential, to wit: (a) when the President, upon recommendation of the Commissioner of Civil Service (now Civil Service Commission) has declared a position to be primarily confidential; and (2) in the absence of such declaration, when by the very nature of the functions of the office, there exists close intimacy between the appointee and the appointing power which insures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or confidential matters of state and Piero vs. Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a position is primarily confidential, policy determining, or highly technical and that executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII of the Constitution."

In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in the Salazar and Piero cases have been modified and superseded by Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868, which provides:
"Any provision of law authorizing any official, other than the President, to declare positions policy-determining, primarily confidential or highly technical which are exempt from the Civil Service Law and rules is hereby repealed, and only the President may declare a positiondetermining, highly technical or primarily confidential upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission."

The Solicitor-General further asseverates that the Commission's giving due course to the complaint of Sangalang is manifestly valid and legal for it is also in accordance with the declared policies of the State provided for in Section 2 of P.D. No. 807.

In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties to submit simultaneous memoranda. We shall take up the issues in the order they are presented above.
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1.The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil Service Commission dated 18 January 1983. 14 On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:
"At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR . . . ." (capitalization supplied for emphasis).

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation only to appointment. He changed his mind only after the public respondent, in its Resolution No. 83358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. 15 But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial Administrator is primarily confidential, is without merit. As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service underSection 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:
"Education: Bachelor's degree preferably in Law/Public or Business Administration.

Experience: Six years of progressively responsible experiences in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency. Eligibility: RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor."

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:
xxx xxx xxx "2.DEFINITION: Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and local agencies in the province; and general planning, direction and control of the personnel functions and the administrative services of the Governor's Office. 3.DISTINGUISHING CHARACTERISTICS: This is the class for top professional level management, administrative and organizational work in the operation of provincial government with highly complex, involved relationship with considerable delegation of authority and responsibility and a high degree of public contact."
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render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination. 17 It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807, which 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: xxx xxx xxx

(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; . . . ."

In Piero, et al. vs. Hechanova, et al.,

18

this Court had the occasion to rule that:

"It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the Constitution."

This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:
" . . . and only the President may declare a position policy-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission."

for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Constitution which was then in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is the nature of the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining, primarily confidential, or highly technical." In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20 that Salazar vs. Mathay 21 and Piero, et al. vs. Hechanova, et al.,22 have already been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism. We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions belong to the noncareer service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24 (f of R.A. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service).
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2.Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. 23 Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity and the case does not fall within any of the exemptions provided therein.

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:
"By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." 24

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select,appoint or set apart for a purpose or duty." 25 In Borromeo vs. Mariano,
26

this Court said:

" . . . All the authorities unite in saying that the term 'appoint' is wellknown in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual . . . ." (emphasis supplied)

In Binamira vs. Garrucho,

27

this Court, per Mr. Justice Isagani A. Cruz, stated:

"Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named."

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 28 3.As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his brother as

Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants, 29 with the power and function to administer and enforce the constitutional and statutory provisions on the merit system. 30 Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth to the constitutional exhortation that a public office is a public trust and public officers and employees must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises, support and encouragement of society. The vigilance of the citizenry is vital in a democracy.
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WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service Commission are AFFIRMED. Costs against petitioner. SO ORDERED.

EN BANC
[G.R. No. 135805. April 29, 1999.] CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.

The Solicitor General for petitioner Cesar A. Sevilla & Partners for respondent.
SYNOPSIS

George P. Suan, Vice-President of Citizens Crime Watch, Allen Chapter, Northern Samar, filed with petitioner Civil Service Commission (CSC) a complaint against respondent, the Vocational School Administrator of Balicuatro College of Arts and Trade, Allen, Northern Samar, for habitual drunkenness, misconduct and nepotism. After investigation, the CSC found respondent guilty only of nepotism on two counts as a result of the appointment of his two sons as driver and utility worker of the school and their assignment under respondent's immediate supervision and control. Consequently, the CSC dismissed respondent from the service. Respondent filed a special civil action for certiorari with preliminary injunction before the Court of Appeals. The Court of Appeals reversed and set aside the decision of the CSC ruling that respondent did not appoint or recommend his two sons, hence, he was not guilty of nepotism. The appellate court further ruled that it is "the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act. Hence, this appeal.
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The Supreme Court affirmed the resolutions of the CSC finding respondent guilty of nepotism and meting out the penalty of dismissal from the service. To constitute a violation of the law on nepotism, it is immaterial who the appointing or recommending authority is. It suffices that an appointment is extended or issued in favor of a relative within the third degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. It is true that it was the Head of the Vocational Department of the School who recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as driver and utility worker of the school. However, the Head of the Vocational Department was a subordinate of respondent and it was the latter who authorized the former to recommend the appointment of first level employees such as, among others, drivers and utility workers, under his immediate supervision. Thus, the unseen hand of respondent was obviously behind the appointing or recommending authority in the appointment of his two sons. The Supreme Court likewise ruled that petitioner has become the party adversely affected by the ruling of the Court of Appeals in the instant case. Hence, as an aggrieved party, petitioner may appeal the decision of the appellate court to the Supreme Court. The Court overruled prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges. SYLLABUS

1.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; EXECUTIVE ORDER NO. 292; SECTION 59 THEREOF; NEPOTISM; DEFINED. Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority; b) recommending authority; c) chief of the bureau or office, and d) person exercising immediate supervision over the appointee. Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. 2.ID.; ID.; ID.; ID.; RESPONDENT FOUND GUILTY THEREOF IN CASE AT BAR. We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service. Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclag's immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that "funds are available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory." On the other hand, his son Ped stated in his position description form that his father was "his next higher supervisor." The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as driver and utility worker of the school. Both positions are career positions. To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the

appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.
ASIETa

3.ID.; ID.; ID.; ID.; ID.; CIVIL SERVICE COMMISSION MAY APPEAL THE DECISION OF THE COURT OF APPEALS EXONERATING PUBLIC OFFICIAL FROM CHARGES THEREOF. The Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase 'party adversely affected by the decision' refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" or "when the respondent is exonerated of the charges, there is no occasion for appeal." In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; and other cases cited; and more recently Del Castillo v. Civil Service Commission. 4.ID.; ID.; ID.; ID.; ID.; RULING IN DEBULGADO CASE (237 SCRA 184) NOT APPLICABLE IN CASE AT BAR. The Court of Appeals' reliance on Debulgado vs. Civil Service Commission, to support its ruling is misplaced. The issues in Debulgado are whether a promotional appointments is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: . . . The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there." Nepotism is one pernicious evil impeding the civil service and

the efficiency of its personnel. In Debulgado, we stressed that "[T]he basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one." "The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive." If not within the exceptions, it is a form of corruption that must be nipped in the bud or abated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the 'outstanding' civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law." PUNO, J., concurring opinion: 1.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; NEPOTISM; TAXPAYER HAS THE STANDING TO BRING SUIT TO VOID NEPOTIC ACTS. It is beyond argument that nepotism is prohibited by our civil service law for it breeds inefficiency, if not corruption, in government service. The critical question, therefore, is: who has the standing to prevent the violation of this law and protect public interest? I submit that a taxpayer has the standing to bring suit to void nepotic acts for he has an interest that "appointments in the civil service shall be made only according to merit and fitness . . . ." A taxpayer has a right to good government and good government cannot result from appointments determined by bloodlines. The Civil Service Law itself recognizes that there are offenses which can be the subject of a complaint by any private citizen. Thus, Section 37 of the law allows any private citizen to file a complaint against a government official or employee directly with the Commission. Section 38 also recognizes that "administrative proceedings may be commenced against a subordinate officer or employee by the head of the department or office of equivalent rank, or head of local government or chiefs of agencies, or regional directors or upon sworn written complaint of any other persons." The general rule is that one who has a

right to be heard has standing to seek review of any ruling adverse to him. Hence, if a private citizen has the right to file an administrative complaint, he must also have the right to appeal a dismissal of his complaint, unless the law clearly precludes his right of appeal for indubitable policy reasons. A contrary rule will diminish the value of the right to complain. The cases of Paredes, Mendez and Magpale do not give any policy reason why the dismissal of a charge of nepotism cannot be appealed. They merely resort to doubtful inferences in
justifying the bar to appeals. Such an approach goes against the rule that "preclusion of judicial review of administrative action . . . is not lightly to be inferred."

2.ID.; ID.; ID.; ERRONEOUS DECISION ALLOWING NEPOTISM CANNOT BE GIVEN IMMUNITY FROM, JUDICIAL REVIEW. In truth, the doctrine barring appeal is not categorically sanctioned by the Civil Service Law. For what the law declares as "final" are decisions of heads of agencies involving suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary. But there is a clear policy reason for declaring these decisions final. These decisions involve minor offenses. They are numerous for they are the usual offenses committed by government officials and employees. To allow their multiple level appeal will doubtless overburden the quasi-judicial machinery of our administrative system and defeat the expectation of fast and efficient action from these administrative agencies. Nepotism, however, is not a petty offense.

Its deleterious effect on government cannot be over-emphasized. And it is a stubborn evil. The objective should be to eliminate nepotic acts, hence, erroneous decisions allowing nepotism cannot be given immunity from review especially judicial review. It is thus non sequitur to contend that since some decisions exonerating public officials from minor offenses can not be appealed, ergo, even a decision acquitting a government official from amajor offense like
nepotism cannot also be appealed.

3.ID.; ID.; ID.; DOCTRINE BARRING APPEAL FROM DECISION EXONERATING PUBLIC OFFICIALS FROM CHARGES THEREOF, CANNOT BE JUSTIFIED BY THE PROVISION LIMITING THE APPELLATE JURISDICTION OF THE CIVIL SERVICE COMMISSION. The doctrine barring appeal cannot be justified by the provision limiting the jurisdiction of the Civil Service Commission to review decisions involving: (1) suspension for more than thirty (30) days; (2) fine in an amount exceeding thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or dismissal from office. Again, there is nothing in this provision indicating legislative intent to bar appeal from decisions exonerating a government official or employee from nepotism. Statutory preclusion of appeals is the exception rather than the rule, for as stressed by Mr. Justice Douglas, ''tolerance of judicial review has been more and more the rule against the claim of administrative finality." Yet the cases of Paredes, Mendez and Magpale precisely barred all appeals despite lack of an explicit, positive provision in the Civil Service Law. 4.ID.; ID.; ID.; SUPREME COURT HAS JURISDICTION TO REVIEW DECISION EXONERATING PUBLIC OFFICIALS FROM CHARGES THEREOF. The case at bar involves the right of a party adversely affected to resort to judicial review. This case does not involve the appellate jurisdiction of the Civil Service

Commission, i.e.,whether or not it has the power to review a decision exonerating a government official from a charge of nepotism. The facts show that it was the Civil Service Commission that at the first instance found Dacoycoy guilty of nepotism. It was Dacoycoy who appealed the decision of the Civil Service Commission to our regular court, more exactly, the Court of Appeals pursuant to the Rules of Court. As Dacoycoy only impleaded Suan as respondent, the Court of Appeals ordered that the Civil Service Commission should also be impleaded as party-respondent. The Court of Appeals then reversed the Commission as it cleared Dacoycoy from the charge of nepotism. The question therefore is whether or not this Court is precluded from reviewing the decision of the Court of Appeals on a petition for certiorari under Rule 45. Again, I submit that this Court has jurisdiction to entertain this review. Indeed, under the Constitution, the jurisdiction of this Court has even been expanded "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government." The question is not our lack of jurisdiction but the prudential exercise of power. In certiorari cases alleging grave abuse of discretion, our given task is to determine how much is too much of an abuse. 5.ID.; ID.; ID.; CIVIL SERVICE COMMISSION MAY APPEAL FROM DECISION EXONERATING PUBLIC OFFICIALS FROM CHARGES THEREOF. To my mind, it is also of de minimis importance that the petition to this Court was filed by the Civil Service Commission. The records will reveal that Suan, the original complainant, wrote to the Civil Service Commission urging it to make the appeal ostensibly for lack of means. But even without Suan, I submit that the nature of

the issue in the case at bar and its impact on the effectiveness of government give the Civil Service Commission the standing to pursue this appeal. The issue in the case at bar is basically a legal one, i.e., the proper interpretation of who can
be convicted of nepotism, and undoubtedly, this Court has the authoritative say on how to interpret laws. Administrative agencies have always conceded that the final interpretation of laws belongs to regular courts. And the issue has broad implications on the merit and fitness philosophy of our civil service system. Under Sec. 3, Article IX (B) of our Constitution, it is the Civil Service Commission that has oversight of our civil service system. It is thus the party better equipped to argue the diverse dimensions of the issue. It is also the most affected, for it has the duty not to stand still when nepotic practices threaten the principle of meritocracy in our government. It seems to me self evident that this type of injury to public interest can best be vindicated by the Commission and not by a private person.

6.ID.; ID.; ID.; DOCTRINE OF NON-REVIEWABILITY OF DECISIONS EXONERATING GOVERNMENT OFFICIALS FROM CHARGES THEREOF WEAKENS JUDICIARY'S CHECKING POWER. There are other disturbing implications if we do not junk the doctrine of non-reviewability of decisions exonerating government officials from charges of nepotism. For one, the doctrine unduly favors officials charged with nepotism, for while we allow further review of their conviction, we disallow review of their exoneration, regardless of the errors. This distorted rule contravenes our distaste against nepotism, a practice whose continuance can fatally erode faith in government. For another, perpetuating a nepotic act, an evil that should be extirpated wherever found, can never be the intent of our legislators who crafted our Civil Service Law. For still another,

completely cutting off access to judicial review goes against the spirit of the 1987 Constitution expanding the jurisdiction of this Court. Putting up borders of nonreviewability weakens the judiciary's checking power. Indeed, shielding abusive administrative actions and decisions from judicial oversight will ultimately erode the rule of law. As Justice Brandeis opined, "supremacy of law demands that
there shall be an opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly." MELO, J., concurring and dissenting opinion: 1.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; DOES NOT CONTEMPLATE A REVIEW OF DECISION EXONERATING OFFICIAL AND EMPLOYEE FROM ADMINISTRATIVE CHARGE INVOLVING NEPOTISM. Although I completely agree with the result and likewise with the wisdom in which the issues relating to nepotism are threshed out in the majority opinion, I do not agree with the majority opinion stating that the Civil Service Commission may appeal a judgment of exoneration in an administrative case involving nepotism. And Mr. Justice Puno would go further by allowing even a private complainant and by implication, a complainant office, to appeal a decision exonerating or absolving a civil service employee of charges against, or even imposing a penalty upon him. This totally contravenes our well-settled ruling in Paredes vs. Civil Service Commission (192 SCRA 84 [1990]), faithfully consistently reiterated by the Court En Banc in Mendez vs. Civil Service Commission (204 SCRA 965 [1991]); and other cases cited); that, the Philippine Civil Service Law does not contemplate a review of decisions exonerating officers and employees from administrative charges. The Court of Appeals exonerated respondent Dacoycoy of the charge of nepotism. From such "adverse decision," the Civil Service Commission, through its Office for Legal Affairs, interposed the present appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court.

Under existing laws and jurisprudence this is not allowed, so this Court ruled in the above-cited cases. If this point is not stressed by the Court, the present decision might be misconstrued as a watering down of the settled doctrine.
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2.ID.; ID.; COURT MUST ADHERE TO THE GENERAL RULE DISALLOWING APPEALS IN CASES OF EXONERATION IN AN ADMINISTRATIVE CASE. There is more cogent reason, therefore, for the Court to adhere to the general rule in an administrative case involving nepotism. Besides, the law cannot be clearer on the matter. It made no distinction as regards the charge of nepotism. When the law does not distinguish, the Court should not distinguish. It should also be noted that Presidential Decree No. 807 has not undergone any pertinent amendment since the Court applied the law in Paredes. From the time of its passage on October 6, 1975 until the present, appeals by the government in cases of exoneration in an administrative case had been disallowed. It was not only the result of this Court's "interpretation" of the law in Paredes that made it so. It was rather the real and definite intention of the Philippine Civil Service law. If it was the intention of Legislature to allow appeals as the majority holds or as Mr. Justice Puno suggests, then, an amendment to that effect could have been introduced and passed. Then President Marcos who had full legislative power could have easily amended the said law. The records show that he did not. The fact that no such amendment has been introduced even after the re-institution of a legislative body, the Batasang Pambansa, and later in 1987, the Congress of the Philippines, signifies that, at the very least our interpretation in Paredes and the other subsequent cases sits well with Congress. It is my submission that the prerogative to now determine whether this practice of disallowing appeals in cases of exoneration should still continue or not, exclusively belongs to Legislature. The Court cannot and should not arrogate this policy-making power of Congress unto itself, not even in the guise of the exercise of its expanded power of judicial review under the 1987 Constitution. Only Congress has authority to remedy inadequacies in the wisdom of a law, should it find any, especially when the definite intention of the existing law was to disallow the State to appeal from judgments of exoneration. Any attempt by the Court to transgress this most basic principle in the separation of powers between these two branches of government would, to my mind, result in the abhorrent act of judicial legislation, if not outright disregard of Article 7 of the Civil Code.

3.ID.; ID.; IN SECTION 39, PARAGRAPH (A) THEREOF, NO APPEAL MAY BE TAKEN FROM THE ORDER OF THE COURT OF APPEALS EXONERATING A GOVERNMENT EMPLOYEE IN AN ADMINISTRATIVE CASE. Effective June 1,

1995, Revised Administrative Circular No. 1-95 ordained that, appeals from awards, judgments or final orders or resolutions of or authorized by any quasijudicial agency (which includes the Civil Service Commission) in the exercise of its quasi-judicial functions shall be taken by filing a verified petition for review with the Court of Appeals. Although in general, appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may be filed via a verified petition for review on certiorari with this Court (where pure questions of law, distinctly set forth therein, may be duly raised), an appeal involving a judgment or final order of the Court of Appeals exonerating a government employee in an administrative case, in particular, falls within the ambit of the provisions of Section 39, paragraph (a) of Presidential Decree No. 807. It is elementary that a special law such as Presidential Decree No. 807 takes precedence over general rules of procedure such as Rule 45 of the Rules of Court. No appeal may, therefore, be taken under Rule 45. 4.ID.; ID.; TERM "PARTY ADVERSELY AFFECTED" SHOULD NOT BE CONSTRUED TO INCLUDE THE STATE IN ADMINISTRATIVE CHARGES INVOLVING NEPOTISM. It is recognized in our jurisdiction that an administrative case which could result in the revocation of license, or similar sanctions like dismissal from office, constitutes a proceeding which partakes of a criminal nature (cf. Pascual vs. Board of Medical Examiners, 28 SCRA 345 [1969]). Being such, provisions of law pertaining thereto must perforce be construed strictly against the State, just as penal laws are strictly construed strictly against the State (People vs. Manantan, 5 SCRA 684 [1962]). Any ambiguity, should there be any, must be resolved in favor of the respondent in the administrative case. The term "party adversely affected" should not be construed as to include the State in administrative charges involving nepotism.
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5.ID.; ID.; APPEALS FROM DECISIONS IN ADMINISTRATIVE CASES, NOT ALLOWED; RATIONALE. To allow appeals from decisions, be they exonerative or otherwise, against civil service employees would, to my mind, be stocking the stakes too much against our civil servants. It should be noted in this regard that the greater bulk of our government workers are ordinary people, working under supervision and, more often than not, exposed to political pressure and the influence of peddlers of power. Their simple status notwithstanding, they are not easily cowed and intimidated. Many, though, are threatened with complaints, transfer of station, or demotion, if they refuse to do the bidding of some unscrupulous superiors or politicians. I can, therefore, understand why the law and our jurisprudence disallow appeal by the complainant from decisions in administrative cases, be they exonerative or otherwise. Verily, an employee may be hounded into spending up to his last resources and losing his self-respect and

honor by successive appeals. What will happen, if for instance, the respondent government employee is initially exonerated or given a light penalty, and the complainant may appeal, insisting that the employee is guilty or that he deserves a heavier penalty? And, if the Civil Service Commission thereafter metes out a penalty not to the liking of the complainant, the matter may still be elevated to the Court of Appeals or even this Court? Where else will all this end, if not in the physical and financial exhaustion of the respondent civil servant? Again, I wish to stress that I speak here of the ordinary employees. The big shots in government who commit wrongs may somehow hereby benefit, but then we shall be content in concluding that we decided in favor of the many, that the good of the majority prevailed. A judgment of exoneration by the Court of Appeals, as in the case of a judgment of exoneration by the Civil Service Commission or the now defunct Merit System Protection Board, may indeed prove to be truly adverse to the government agency concerned and eventually to the State as a whole. This is especially so when there had been lapses in the interpretation and/or application of the law as in the present case. This notwithstanding, the right to appeal, which is merely statutory may not be invoked, much less exercised, when the law does not provide any. Again, until and unless Congress exercises its prerogative to amend such law, this Court is bound by it and has no other recourse except to apply the same.
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6.ID.; ID.; APPEAL BY CIVIL SERVICE COMMISSION FROM A JUDGMENT OF EXONERATION ALLOWED IN CASE AT BAR; REASON; RULING IN MENDOZA CASE (233 SCRA 657) APPLIED. As a final observation, it may well be noted that the result in the present case may already be achieved by the application of this Court's ruling in Mendoza. It might not be necessary to step over board by institutionalizing the case of nepotism as an exception to Paredes, or, as Mr. Justice Puno proposes, abandoning Paredes altogether. I believe that it will do our justice system more good than harm if we abide by the principle of stare decisis in the present case. This case, I humbly submit is not the proper vehicle to review and abandon doctrines of long standing, for nonetheless, the appeal by the complainant is allowed there being no objection thereto by respondent Dacoycoy. We need not disturb at this time our old rulings. We need not enter uncertain and mined fields, for the result sought to be accomplished by the majority can well be achieved by simply following and applying our previous rulings on the matter. ROMERO, J., dissenting opinion: 1.ADMINISTRATIVE LAW; CIVIL SERVICE LAW; CIVIL SERVICE COMMISSION; NO LEGAL PERSONALITY TO APPEAL DECISION OF THE COURT OF APPEALS

EXONERATING AN EMPLOYEE CHARGED IN ADMINISTRATIVE CASE INVOLVING NEPOTISM. After an exhaustive and careful scrutiny of P.D. No. 807 (otherwise known as the Civil Service Law), Executive Order No. 292 (otherwise known as the Revised Administrative Code of 1987) as well as the Omnibus Rules Implementing Book V of Executive Order No. 292, I find no legal basis to support the contention of the majority that the Commission has that legal personality. Section 34, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides the answer as to who may appear before the Commission, thus: "Administrative proceedings may be commenced against a subordinate officer or employee by the following officials and employees. Consequently, the complainant can either be the Secretary of department, head of office of equivalent rank, head of a local government unit, chief of agency, regional director or any other person or party. "The phrase 'any other party' has been understood to be a complainant other than the head of department or office of equivalent rank or head of local government or chiefs of agencies or regional directors." The respondent, on the other hand, is any subordinate officer or employee. Nowhere can be found, expressly or impliedly, in Section 34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No. 292, the Commission as one of the parties, either as complainant or respondent in an administrative case. Logically and by necessary implication, it cannot be considered either a complainant or a respondent. Expressio unius est exclusio alterius. The express mention of one person, thing or consequence implies the exclusion of all others. Based on the foregoing, there is no other conclusion but that the Civil Service Commission is not a party to an administrative proceeding brought before it. As provided by Supreme Court Administrative Circular 1-95, decisions, orders or rulings of the Commission may be brought to the Supreme Court, now to the Court of Appeals, on certiorari by the aggrieved party. By inference, an aggrieved party is either the one who initiated the complaint before the Commission or the respondent, the person subject of the complaint. In fact, the question as to who is an "aggrieved party" has long been settled in a litany of cases. An aggrieved party in an administrative case is the government employee against whom an administrative complaint is filed. The Civil Service Commission is definitely not a government employee. Neither is it an agency against whom an administrative charge is filed. While it may be argued that, in a sense, the government is an "aggrieved party" in administrative proceedings before the Commission, it nevertheless is not the "aggrieved party" contemplated under P.D. No. 807 or the Civil Service Law. Having established that the Civil Service Commission is not a party, much less an aggrieved party, then indubitably, it has no legal personality to elevate the case to the appellate authority. The Commission, therefore, has no legal standing to file the instant petition.

2.ID.; ID.; ID.; SHOULD DETACH ITSELF FROM CASES WHERE ITS DECISION IS APPEALED TO A HIGHER COURT FOR REVIEW. While admittedly, the Civil Service Commission is considered a nominal party when its decision is brought before the Court of Appeals, such is only a procedural formality. As with appellate processes, a nominal party is not the aggrieved party. Its inclusion as a party is based primarily on the fact that the decision, order or ruling it issued is being contested or assailed and secondarily, for purposes of enforcement. By analogy, the Commission in the performance of its quasi-judicial functions is just like a judge who should "detach himself from cases where his decision is appealed to a higher court for review. The raison d'etre for such doctrine is that a judge is not an active combatant in such proceeding and must leave the opposing parties to contend their individual positions and for the appellate court to decide the issues without his active participation. By filing this case, petitioner in a way ceased to be judicial and has become adversarial instead."

DECISION PARDO, J :
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The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Commission's resolution dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.
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The facts may be succinctly related as follows: On November 29, 1995, George P. Suan, a Citizens Crime Watch VicePresident, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism. 1 After a fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City found a prima facie case against respondent, and on March 5, 1996, issued the corresponding formal charge against him. 2 Accordingly, the Civil Service Commission conducted a formal investigation, and on January 28, 1997, the Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and

misconduct. However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service. 3 On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; 4 however, on May 20, 1997, the Civil Service Commission denied the motion.5 On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunction 6 to set aside the Civil Service Commission's resolutions. On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court further held that it is "the person who recommends or appoints who should be sanctioned as it is he who performs the prohibited act." 7 Hence this appeal. On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice. 8 On December 11, 1998, respondent filed his comment. We give due course to the petition. The basic issue raised is the scope of the ban on nepotism. We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service. The law defines nepotism 9 as follows:
"Sec. 59.Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

"As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity. (2)The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission."

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:
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a)appointing authority; b)recommending authority; c)chief of the bureau or office, and d)person exercising immediate supervision ever the appointee. Clearly, there are four situations covered. In the last two mentioned situations it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office or the person exercising immediate supervision over the appointee. Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclag's immediate supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker. However, it

was respondent Dacoycoy who certified that "funds are available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory". On the other hand, his son Ped stated in his position description form that his father was "his next higher supervisor". The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as driver and utility worker of the school. Both positions are career positions. To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism. At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. 10 He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent 11 as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. 12 Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. 13 Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. 14 By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase 'party adversely affected by the decision' refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" 15 and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" 16 or "when the respondent is

exonerated of the charges, there is no occasion for appeal." 17 In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; 18 Mendez v. Civil Service Commission; 19 Magpale v. Civil Service Commission; 20 Navarro v. Civil Service Commission and Export Processing Zone Authority 21 and more recently Del Castillo v. Civil Service Commission. 22 The Court of Appeals' reliance on Debulgado vs. Civil Service Commission, 23 to support its ruling is misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: . . . The public policy embodied in Section 59 is clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there." 24 Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that "[T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one." 25 "The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive." 26 If not within the exceptions, it is a form of corruption that must be nipped in the bud or abated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the 'outstanding' civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law." 27 WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711.
LLjur

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service. No costs. SO ORDERED.
Facts: ? In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986, President Marcos allegedly commanded petitioner Tabuena, in his capacity as General Manager of the Manila International Airport Authority (MIAA), to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum P55M in cash as partial payment of MIAAs account with said company mentioned in a Memorandum of (Trade and Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985 Tabuena withdrew the sum of 55M on three separate occasions (25M, 25M, 5M with Adolfo Peralta) and delivered them to Gimenez, Marcoss private secretary. ? It is without dispute that Tabuena did not follow the normal procedures in withdrawal and delivery of the money (no disbursement slips and paid in cold cash). ? Tabuena was only issued a receipt after the third delivery and it did not mention anything about the purpose of the receipt or the money being used to pay PNCC, but merely acknowledged that Gimenez had received the sum of 55M from Tabuena on three occasions. Furthermore, there was no receipt from the PNCC recognizing payment of debt. ? Prosecution: there were no standing obligations in favor of the PNCC at the time of disbursement of 55M. PNCC said themselves that they didnt receive the P55M. ? Tabuena claimed that he was only complying with the direct order of Marcos (plus the Marcos memorandum which contained same order) to immediately forward to the office of the President, 55M in cash, as partial payment of MIAAs obligations to PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short, that Tabuena acted in good faith. ? Sandiganbayan rejected Tabuenas claim of good faith and found him guilty of malversation by negligence, hence this case. Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation (or if because of the justifying circumstance of following the orders of his superior, in good faith, he would not be criminally liable, but merely civilly liable)? Held: Tabuena is merely civilly liable. The very fact that he was merely following the orders of his superior is a justifying circumstance. Ratio: 1. On the point raised by Tabuena that he cannot be charged with intentional malversation and be convicted by malversation by negligence, the Court ruled that the dolo and culpa of the offense is only a modality in the perpetration of the felony. The same felony is still there and conviction thereof is proper. 2. On the defense of good faith: it is a valid defense against malversation because it would negate criminal intent. To constitute a crime, the act must, except in certain crimesbe accompanied by criminal intent or such negligence or indifference to duty or to consequences as is equivalent to criminal intent The maxim actus non facit reum, nisi mens sit rea a crime is not commited if the mind of the person performing the act complained of is innocent (malversation cases: US v. Catolico, US v. Elvina). 3. The Court, based on the evidence presented, found that Tabuena had no other choice but to actually follow the order stated in the Marcos Memorandum, because, as president of the Philippines, indubitably the head of governmental agencies such as the MIAA and PNCC, Marcos is undeniably the superior of Tabuena. 4. Tabuena entitled to the justifying circumstance of any person who acts in obedience to an order issued by a superior for some lawful purpose because he is only acting in good faith, faithfully and efficiently carrying out orders from the highest official in the land. Moreover, there was nothing in the Marcos Memorandum that may invite suspicion there was no question about the lawfulness of the order contained in such a memorandum. Tabuena had

reason to believe that the 55M was indeed part of a due and demandable debt, a portion of a bigger liability to PNCC (existence of such debts determined from testimonies). So even if the order was illegal and Tabuena was not aware of the illegality, he would not be liable because there would only be a mistake of fact committed in good faith. 5. Tabuena followed the memorandum to the letter, paying immediately the PNCC, through this office (office of the president) the sum of 55M. Tabuena had reasonable ground to believe that the President was entitled to receive the money because as Chief Executive, Marcos exercised supervision and control over governmental agencies (good faith in the payment of public funds relieves a public officer from the crime of malversation). 6. While even Tabuena admitted that procedures were ignored and that the disbursement was unusual, he is found to be excused from such because the Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other hand, while this allows for the negation of criminal intent, as Tabuena acted in good faith, he would still be civilly liable (but hes not criminally liable anymore, escaping the harsher penalties) (see page 362). 7. There is no showing that Tabuena had anything to do with the creation of the Marcos Memorandum that even if the real purpose behind the memorandum was to get 55M from public funds, it is clear that he did and would not profit from such and that he did not have anything to do with the creation of the memorandum. 8. Tabuena case is a case concerning obedience in good faith of a duly executed order. The order/memorandum came from the Office of the President and bears the signature of the president himself, in effect allowing for the presumption that such order was regularly issued and patently legal. Furthermore, the wording of the memorandum expressed a certain urgency to its executionObedienta est legis essential (act swiftly without question). 9. Main Ratio: Furthermore, the Court itself raises the contention that the case involves a violation of the accuseds right to due process in the sense that it was obvious that the Sandiganbayan was overzealous in its attempt to convict parties involved as seen in the volume of questions asked, and the manner the same were posed (cross examinations characteristic of confrontation, probing and insinuation). To quote Justice Cruz, Respect for the Constitution is more important that securing a conviction based on a violation of the rights of the accused. Sandiganbayan was obviously biased, denying Tabuena and parties involves the requirement of the cold neutrality of an impartial judge. As a consequence of such violation of due process, the order of Sandiganbayan was found void. Note that this defense was not raised by Tabuena. Voting: ? Four concurred (Narvasa, Vitug, Kapunan, Mendoza) ? Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban) ? Justice Hermosisima took no part as he was a signatory to the SB decision ? Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the majority opinion but they reserve their right to change their vote should a similar case with the same facts arise.) Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the proposition that any public official who blindly follows orders of their superior. Thus, this case is not authoritative on Art. 11(6). Decision: Tabuena and Peralta acquitted.

SECOND DIVISION
[G.R. No. L-46096. July 30, 1979.] EUFEMIO T. CORREA, petitioner, vs. COURT OF FIRST INSTANCE OF BULACAN (BRANCH II), CITY SHERIFF OF QUEZON CITY, MUNICIPALITY OF NORZAGARAY, BULACAN, HON. ARMANDO ENRIQUEZ, as the Incumbent Mayor of Norzagaray, Bulacan, CANDIDO P. CRUZ, ISABELO SAPLALA, TOMAS PALAD, ANTONIO SILVERIO, MELANIO ESTEBAN, ELIGIO PUNZAL,

CELEDONIO PRINCIPE, ANTONIO ANCHETA, and JUANlTO SARMIENTO, respondents.

Magtanggol C. Gunigundo for petitioner. Ponciano G. Hernandez for private respondents.


DECISION ANTONIO, J :
p

Petition for certiorari prohibition and declaratory relief assailing the Order dated April 22, 1977 of respondent Court of First Instance of Bulacan, Branch II, denying petitioner's Motion to Quash Writ of Execution issued in Civil Case No. 3621-M. The following are the relevant facts: On December 13, 1968, respondent Court rendered judgment in Civil Case No. 3621-M in favor of therein plaintiffs (private respondents herein) and adversely against therein defendants Eufemio T. Correa (petitioner herein) and Virgilio Sarmiento. The pertinent portions of the decision read as follows:
"This Court finds that defendants Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray, Bulacan respectively, should be ordered personally to pay the salaries which the plaintiffs failed to receive by reason of their illegal removal from office until they are actually reinstated. xxxxxxxxx "WHEREFORE, judgment is hereby rendered: 1.Permanently enjoining the defendants from enforcing and/or implementing the Administrative Order No. 1, Series of 1968: 2.Declaring the termination of the services of the plaintiffs illegal and of no legal effect; 3.Ordering the defendant Eufemio T. Correa to reinstate the plaintiffs to their former position as policemen in the Police Force of Norzagaray, Bulacan;

4.Ordering the defendants Eufemio T. Correa and Virgilio Sarmiento to pay, jointly and severally to the plaintiff Juanito Sarmiento his salary for the period beginning January 15, 1968, plaintiff Melanio Esteban his salary for the period beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas Palad; Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their salaries for the period beginning January 23, 1968, until they are actually reinstated to their former positions; 5.Ordering defendant Eufemio T. Correa and Virgilio Sarmiento to pay, jointly and severally, the costs of this suit. SO ORDERED."

The aforesaid decision was affirmed by the Court of Appeals on March 22, 1976, and the motion for reconsideration of the Appellate Court's decision was denied on May 11, 1976. On August 24, 1976, the decision of the Court of Appeals became final and executory. 1 It is in connection with the efforts of the petitioner to quash the writ of execution issued to enforce the aforestated final judgment that the present proceedings arose. Thus, on March 8, 1977, petitioner filed a Motion to Quash the Writ of Execution and to Direct Execution to the Municipality of Norzagaray, Bulacan, alleging that at the time the writ was served on him, he was no longer mayor of Norzagaray, Bulacan. Petitioner invoked the principle that when judgment is rendered against an officer of the municipal corporation who is sued in his official capacity for the payment of back salaries of officers illegally removed, the judgment is binding upon the corporation, whether or not the same is included as party to the action. 2 On April 22, 1977, respondent Court issued the Order denying the Motion to Quash Writ of Execution. Petitioner thus came to this Court, maintaining that he could no longer be required to pay the back salaries of the private respondents because payment on his part presupposes his continuance in office, which is not the case. He contends that it is the Municipality of Norzagaray that is liable for said payment, invoking Aguador v. Enerio. 3 and Sison v. Pajo. 4 Further, petitioner alleges that the fact that he is no longer municipal mayor of Norzagaray, constitutes a substantial change in the situation of the parties which makes the issuance of the writ of execution inequitable. Petitioner prays, among others, that judgment be rendered declaring that the payment of back salaries of private respondents should be made by the

incumbent mayor and by the municipality of Norzagaray, Bulacan, and that petitioner is no longer liable for the payment thereof; and annulling the Order dated April 22, 1977 of respondent court denying the motion to quash the writ of execution.
LLpr

On May 24, 1977, this Court required petitioner to implead the Municipality of Norzagaray, Bulacan as party respondent and on June 25, 1977, petitioner filed an amended petition impleading the Municipality of Norzagaray and Amando Enriquez, the incumbent municipal mayor. In his amended petition, petitioner alleges that the writ of execution is already being enforced against the personal properties of petitioner; that such enforcement during the pendency of the instant petition would probably work injustice to petitioner; and that petitioner stands to suffer great and irreparable injury if enforcement of the writ is not temporarily restrained. Petitioner, therefore, prays that the execution be stayed or a temporary restraining order be issued pending resolution of the instant proceedings. On August 1, 1977, private respondents filed their Comment maintaining that respondent court acted correctly and committed no abuse of discretion when it denied petitioner's motion to quash the writ of execution, (1) it being the ministerial duty of the trial court to issue a writ for the enforcement of a final and executory judgment; and (2) since the personal liability of the petitioner and his co-defendant to pay the back salaries of the private respondents as mandated in the decision sought to be executed cannot be shifted or transferred to the municipality of Norzagaray, Bulacan, for to do so would be to vary the terms of a final judgment. On August 12, 1977, this Court resolved to consider the Comment of respondents as answer to the petition and required the parties to file their respective memoranda, and thereafter the case was submitted for decision.
LLpr

The issue is whether or not respondent Court in denying the Motion to Quash the Writ of Execution acted with grave abuse of discretion or with lack or excess of jurisdiction. It cannot be denied that both the judgments of the Court of First Instance of Bulacan and of the Court of Appeals categorically state that the liability of herein petitioner is personal. Thus, according to the trial court, "Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and municipal treasurer of Norzagaray, Bulacan, respectively, should be ordered personally to pay the salaries which the

plaintiffs failed to receive by reason of their illegal removal from office until they are actually reinstated." (Emphasis supplied) In affirming the decision of the trial court, the Court of Appeals 5 ruled that "The defendants are personally liable jointly and severally because they acted without justifiable cause (Nemenzo vs. Sabillano, Sept. 7, 1968, 25 SCRA 1)." 6 The jurisprudence relied upon by the petitioner in his effort to shift the responsibility to the Municipality of Norzagaray appears inapplicable. In Aguador v. Enerio, supra, cited by petitioner, the municipal mayor and the members of the Municipal Council of Oroquieta were specifically ordered "to appropriate necessary amounts to pay the salary differentials for the petitioners and also for the payment of their entire salaries from month to month, subject naturally to the availability of funds after all statutory and subsisting contractual obligations shall have been properly covered by adequate appropriations." The issue raised was whether or not, after the municipal mayor, members of the municipal council and the municipal treasurer were expressly made parties in the mandamus case and in the contempt proceedings, it was necessary to include the municipality as a party, to make the latter liable. This issue was resolved in the negative by this Court. In the case of Sison v. Pajo, supra, the trial court directed the Acting Municipal Mayor and Acting Chief of Police of Bamban, Tarlac to reinstate Bonifacio Lacanlale as Acting Chief of Police, effective June 30, 1957 "with the incident of payment of back salaries by the Municipality of Bamban." The issue was whether or not the municipality of Bamban could be ordered to pay the back salaries of the Chief of Police, it appearing that said municipality was not impleaded in the case. This Court ruled that the fact that the Municipality of Bamban, Tarlac was not by name impleaded in the case of reinstatement and back salaries does not affect the employee's right to the payment of back salaries, considering that the officers required by law to represent the municipality in all suits were made parties in their official capacity, hence the case was heard and decided as if the municipality had been made a party. In both cases the judgment of the Court specifically directed the municipality to pay the back salaries.
LibLex

Here, the judgment of the trial court, which was affirmed by the Court of Appeals, found petitioners Eufemio T. Correa and Virgilio Sarmiento personally liable for the payment of the salaries which the dismissed policemen failed to receive because of their illegal removal from office, and ordered them "to pay jointly and severally to the plaintiff Juanito Sarmiento his salary for the period beginning January 15, 1968; plaintiff Melanio Esteban his salary for the period beginning February 1, 1968; and plaintiffs Candido Cruz, Isabelo Saplala, Tomas

Palad, Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their salaries for the period beginning January 23, 1968, until they are actually reinstated to their former positions."

In Nemenzo vs. Sabillano, 7 the Court ruled that appellant Municipal Mayor Bernabe Sabillano was "correctly adjudged liable" for the payment of the back salaries of appellee Police Corporal Joaquin P. Nemenzo because his act of dismissing appellee "without previous administrative investigation and without justifiable cause . . . is clearly an injury to appellee's rights. Appellant cannot hide under the mantle of his official capacity and pass the liability to the municipality of which he was mayor. There are altogether too many cases of this nature, wherein local elective officials, upon assumption of office, wield their new-found power indiscriminately by replacing employees with their own proteges, regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts." In the discharge of governmental functions, "municipal corporations are responsible for the acts of its officers, except if and when, and only to the extent that, they have acted by authority of the law, and in conformity with the requirements thereof." 8 A public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefor like any private individual. 9 This principle of personal liability has been applied to cases where a public officer removes another officer or discharges an employee wrongfully, the reported cases saying that by reason of non-compliance with the requirements of law in respect to removal from office, the officials were acting outside their official authority. 10 Respondent Court, therefore, did not commit grave abuse of discretion in denying petitioner's motion to quash writ of execution. The writ was strictly in accordance with the terms of the judgment. WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SECOND DIVISION
[G.R. No. 114683. January 18, 2000.]

JESUS C. OCAMPO, petitioner, vs. OFFICE OF THE OMBUDSMAN and MAXIMINO ECLIPSE, respondents.

Emmanuel L.B. Canilao for petitioner. The Solicitor General for respondents. The Government Corporate Counsel for private respondent.
SYNOPSIS Petitioner is the Training Coordinator of NIACONSULT, INC., a subsidiary of the National Irrigation Administration. An administrative charge for serious misconduct and/or fraud or willful breach of trust was filed against him before the Office of the Ombudsman by NIACONSULT through its president, the private respondent, Maximino Eclipse. Petitioner was required by respondent Ombudsman to file his counter-affidavit within ten (10) days from receipt with a caveat that failure to file the same would be deemed a waiver of his right to present evidence. Despite notice, petitioner failed to comply with the order. A year later, the respondent Ombudsman issued another order giving petitioner another chance to file his counter-affidavit. Again, petitioner failed. Thereafter, the respondent Ombudsman issued a resolution recommending the discharge of petitioner from the service. Petitioner moved for reconsideration, claiming that he was denied due process in that the administrative case was resolved solely on the basis of the complainant's evidences without affording him the opportunity to file his counter-affidavit. The Ombudsman denied the motion. Aggrieved, petitioner filed the present petition. While the case was pending, petitioner filed a manifestation stating that the criminal complaint filed against him based on the same facts or incidents which gave rise to the administrative case was dismissed by the Regional Trial Court. With the dismissal of the criminal case, petitioner manifested that the administrative case can no longer stand on its own and should be dismissed.
IcEACH

The Supreme Court did not consider petitioner's manifestation and affirmed the assailed resolution of the Ombudsman. The Court ruled that the dismissal of the criminal case will not foreclose the administrative action filed against petitioner considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings. The findings and conclusions in one should not necessarily be binding on the other. Petitioner cannot also validly claim that his right to due process was

violated because his failure to present evidence was solely of his own making and cannot escape his own remissness by passing the blame on the graft investigators. SYLLABUS 1.POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICERS; DISMISSAL OF CRIMINAL ACTION WILL NOT FORECLOSE ADMINISTRATIVE ACTION; CONSIDERING THE DIFFERENCE IN QUANTUM OF EVIDENCE, AS WELL AS THE PROCEDURE FOLLOWED AND THE SANCTIONS IMPOSED IN CRIMINAL AND ADMINISTRATIVE PROCEEDINGS, THE FINDINGS AND CONCLUSIONS IN ONE SHOULD NOT NECESSARILY BE BINDING ON THE OTHER. The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health in all respects. The Regional Trial Court, in dismissing the criminal complaint, was simply saying that the prosecution was unable to prove the guilt of petitioner beyond reasonable doubt, a condition sine qua non for conviction. The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Thus, considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other. 2.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO DUE PROCESS; ADMINISTRATIVE DUE PROCESS CANNOT BE FULLY EQUATED TO DUE PROCESS IN ITS STRICT JUDICIAL SENSE. The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense. 3.ID.; ID.; ID.; A PARTY WHO CHOOSES NOT TO AVAIL OF THE OPPORTUNITY TO ANSWER THE CHARGES CANNOT COMPLAIN OF A DENIAL OF DUE PROCESS. Petitioner has been amply accorded the opportunity to be heard. He was required to answer the complaint against him. In fact, petitioner was

given considerable length of time to submit his counter-affidavit. It took more than one year from February 17, 1992 before petitioner was considered to have waived his right to file his counter-affidavit and the formal presentation of the complainant's evidence was set. The March 17, 1993 order was issued to give the petitioner a last chance to present his defense, despite the private respondent's objections. But petitioner failed to comply with the second order. Thus, petitioner's failure to present evidence is solely of his own making and cannot escape his own remissness by passing the blame on the graft investigator. While the respondent OMBUDSMAN has shown forebearance, petitioner has not displayed corresponding vigilance. He therefore cannot validly claim that his right to due process was violated. We need only to reiterate that a party who chooses not to avail of the opportunity to answer the charges cannot complain of a denial of due process. DECISION BUENA, J :
p

This petition for certiorari seeks to nullify the Resolutions of the Ombudsman in OMB-Adm-0-92-0020 dated November 18, 1993 1 and February 28, 1994 2 which dismissed petitioner from the service, with forfeiture of benefits and special perpetual disqualification to hold office in the government or any governmentowned or controlled corporation, and which denied the motion for reconsideration thereof, respectively.
dctai

The facts are as follows: Petitioner is the Training Coordinator of NIACONSULT, INC., a subsidiary of the National Irrigation Administration. On March 21, 1988, K.N. Paudel of the Agricultural Development Bank of Nepal (ADBN) wrote a letter to NIACONSULT requesting a training proposal on smallscale community irrigation development. 3 On November 17, 1988, petitioner as the training coordinator of the NIACONSULT, sent a letter-proposal requested by ADBN. 4 Another letter was sent by petitioner on January 31, 1989 to Dr. Peiter Roeloffs of ADBN confirming the availability of NIACONSULT to conduct the training program and formally

requesting advance payment of thirty (30%) percent of the training fees amount of US $9,600.00 or P204,960.00.

in the

NIACONSULT conducted the training program for six Nepalese Junior Engineers from February 6 to March 7, 1989. 6 ADBN, thru its representative, Deutsche Gesselschaft Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal Republic of Germany paid to the petitioner the agreed training fee in two installments of P61,488.00 and P143,472.00. 7 On April 1, 1991, NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a letter to petitioner demanding the turn-over of the total training fee paid by ADBN which petitioner personally received. 8 Despite receipt of the letter, petitioner failed to remit the said amount prompting NIACONSULT through its president, Maximino Eclipse, to file an administrative case before respondent OMBUDSMAN for serious misconduct and/or fraud or willful breach of trust. 9 Finding enough basis to proceed with the administrative case, the Administrative Adjudication Bureau of the respondent OMBUDSMAN, on February 17, 1992, issued an order 10 requiring petitioner to file his counter-affidavit within ten (10) days from receipt with a caveat that failure to file the same would be deemed a waiver of his right to present evidence. Despite notice, petitioner failed to comply with the said order. A year later, or on March 17, 1993, respondent OMBUDSMAN issued another order 11 giving petitioner another chance to file his counter-affidavit and controverting evidence. Again, petitioner failed. Thus, on April 14, 1993, private respondent was required to appear before the OMBUDSMAN to present evidence to support its complaint. 12 Thereafter, on November 18, 1993, respondent OMBUDSMAN issued the assailed Resolution, the decretal portion of which reads:
"Withal, for such dishonesty, untrustworthiness, and conduct prejudicial to the service as established by overwhelming evidences, it is respectfully recommended that respondent Jesus C. Ocampo be discharged from the service, with forfeiture of benefits and special perpetual disqualification to hold office in the government or any government-owned or controlled corporation; without prejudice to any civil action NIACONSULT, Inc., may institute to recover the amount so retained by the respondent. SO ORDERED."
13

On February 16, 1994 petitioner moved for reconsideration and to re-open the case claiming that he was denied due process in that the administrative case was resolved on the basis of the complainant's evidences, without affording him the opportunity to file a counter-affidavit and to present his evidence. Petitioner likewise contends that he was not given access to the records of the subject transaction vital to his defense and in the preparation of his counter-affidavit despite his verbal requests to the graft investigator. 14 The respondent OMBUDSMAN denied the motion on February 28, 1994.
15

Aggrieved, petitioner filed the instant petition basically reiterating his arguments in his motion for reconsideration.

We gave due course to the petition and required the parties to submit their respective memoranda. While the case is pending, petitioner filed a Manifestation on May 24, 1997 16 stating that the criminal complaint for estafa and falsification filed against him based on the same facts or incidents which gave rise to the administrative case, was dismissed by the Regional Trial Court on February 24, 1997. With the dismissal of the criminal case, petitioner manifests that the administrative case can no longer stand on its own and therefore should be dismissed. 17 Such manifestation is not well taken.
dctai

The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health in all respects. The Regional Trial Court, in dismissing the criminal complaint, was simply saying that the prosecution was unable to prove the guilt of petitioner beyond reasonable doubt, a conditionsine qua non for conviction. The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 18 Thus, considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusions in one should not necessarily be binding on the other. 19

Going now to the crux of the controversy, petitioner asserts that he was denied the opportunity to be heard. The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense. 20 Petitioner has been amply accorded the opportunity to be heard. He was required to answer the complaint against him. In fact, petitioner was given considerable length of time to submit his counter-affidavit. It took more than one year from February 17, 1992 before petitioner was considered to have waived his right to file his counter-affidavit and the formal presentation of the complainant's evidence was set. The March 17, 1993 order was issued to give the petitioner a last chance to present his defense, despite the private respondent's objections. But petitioner failed to comply with the second order. Thus, petitioner's failure to present evidence is solely of his own making and cannot escape his own remissness by passing the blame on the graft investigator. While the respondent OMBUDSMAN has shown forbearance, petitioner has not displayed corresponding vigilance. He therefore cannot validly claim that his right to due process was violated. We need only to reiterate that a party who chooses not to avail of the opportunity to answer the charges cannot complain of a denial of due process. 21 Petitioner's claim that he was not given any notice of the order declaring him to have waived his right to file his counter-affidavit and of allowing the private respondent to present evidence ex-parte is unmeritorious. The orders of respondent OMBUDSMAN requiring petitioner to submit his counter-affidavit and which was admittedly received by the latter explicitly contain a warning that if no counter-affidavit was filed within the given period, a waiver would be considered and the administrative proceedings shall continue according to the rules. Thus, respondent OMBUDSMAN need not issue another order notifying petitioner that he has waived his right to file a counter-affidavit. In the same way, petitioner need not be notified of the ex-parte hearing for the reception of private respondent's evidence. As such, he could not have been expected to appear at theex-parte hearing.

With regard to the petitioner's claim that he made requests for the production of the documents alleged to be material to his defense, the record is bereft of any proof of such requests. If it were true that the graft investigator did not act on such requests, petitioner should have filed the proper motion before the respondent OMBUDSMAN for the production of the documents or to compel the respondent complainant to produce whatever record necessary for his defense. Petitioner did not. It was only after the respondent OMBUDSMAN issued the assailed resolution of November 18, 1993 that he bewailed the alleged failure of respondent's graft investigator to require the production of the records of the subject transaction. The record of this case indisputably shows that petitioner is guilty of dishonesty and conduct prejudicial to the government when he failed to remit the payment of the training program conducted by NIACONSULT. The evidence presented sufficiently established that petitioner received the payments of ADBN through its representative, GTZ, Philippines the amount of US $9,600.00 and that he failed to account this and remit the same to the corporation. All these acts constitute dishonesty and untrustworthiness. WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Resolutions of the respondent OMBUDSMAN are hereby AFFIRMED.
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SO ORDERED.

EN BANC
[A.M. No. P-89-290. January 29, 1993.]

OFFICE OF THE COURT ADMINISTRATOR, complainant, vs. RAMON G. ENRIQUEZ, respondent. DECISION PER CURIAM :
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In a letter dated 19 January 1987, one Elidoro C. Cruz of Compania Maritima, Inc. informed this Court that the company's lawyer filed with the Tanodbayan on

12 December 1986 a complaint for falsification of a public document, use of falsified documents, robbery and the violation of R.A. No. 3019 against herein respondent Ramon G. Enriquez, Deputy Sheriff of Branch XXXI of the Regional Trial Court (RTC) of Manila and others. The said company lawyer requested that an investigation be conducted on the administrative aspect of the case. In his 20 January 1987 letter to Mr. Cruz, then Court Administrator Leo D. Medialdea, who later became a member of this Court, informed the latter that as a meter of policy, the administrative aspect of the case "will be undertaken by this Office upon the filing of a corresponding information by the Tanodbayan before the Sandiganbayan." Consequently, an Information for falsification of a public document was filed against the respondent with the Sandiganbayan on 6 October 1988. The case was docketed as Criminal Case No. 12987 and was assigned to the Second Division. A copy of the Information was furnished the Office of the Court Administrator on 17 October 1988. On 1 February 1989, then Court Administrator Meynardo A. Tiro, pursuant to this Court's en banc resolution of 12 March 1981 and on the basis of the Information filed with the Sandiganbayan, administratively charged the herein respondent with the crime of falsification of a public document and with conduct prejudicial to the best interest of the service committed in the manner alleged in the said Information, to wit:
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"That on or about May 12, 1986, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused, a public officer, being then a Deputy Sheriff of the Regional Trial Court of Manila, National Capital Judicial Region, Branch 31, taking advantage of his official position and, committing the offense in relation to his official duties, did then and there wilfully, unlawfully and feloniously forge and falsify, or cause to be forged and falsified, Sheriff's (sic) Certificate of Sale dated May 12, 1986, which is a public document, wherein he is legally bound to disclose the truth, by stating therein that the payment for the properties which he levied and sold at public auction was made on May 12, 1986, and that the amount of P1,325,000.00, representing the bid price for the aforesaid levied properties, was paid to him on May 12, 1986, when in truth and in fact, as the said accused well knew, the payment thereof was actually made on May 23, 1986 to Genstar Container Corporation through its attorney-in-fact, to the damage and prejudice of public interest."

The respondent was directed to file his answer/explanation within ten (10) days from receipt of the charge. Instead of filing the answer/explanation as ordered, the respondent forwarded to the Court Administrator a letter on 20 February 1989 informing the latter that Criminal Case No. 12987 was still pending resolution before the Sandiganbayan and that therefore, he (respondent) should not be held administratively liable. On 15 May 1989, the Sandiganbayan, acting on a demurrer to evidence, promulgated a Resolution granting the same and dismissing the case against the respondent "for insufficiency of evidence." This conclusion is based on its findings that (a) the Sheriff's Certificate of Sale, presented and admitted without qualification or limitation and objection as to purpose, showed that the public auction was held on 12 May 1986 and that the movable properties were sold to Rolando Patriarca for P1,325,000.00; this fact was confirmed by prosecution witness Rizalina Cailian, (b) the private prosecutor's contention that there was no public auction on that date runs counter to the Information which is based on the fact that a public auction was held on 12 May 1986, (c) it is presumed that the respondent regularly performed his official duty when he sold, during the said public auction, all the properties levied upon, and (d) the fact stands in bold relief that payment was actually made; whether the same was to the respondent or to Genstar, the fact also stands out that if the payment was to Genstar it was because the amount was due it as a judgment creditor; if made to the respondent "it was in effect to and intended for Genstar," thus having the same net effect; as a result, the assertion that the bid price was paid on 12 May 1986 to the respondent is not absolutely false but has some truth to it. The Sandiganbayan went on to state that the rule is settled that if the statements are not altogether false, there being some colorable truth to them, the crime of falsification is not deemed to have been committed; it further declared that the records "do not show that the rights . . . of the parties involved would not be substantially the same if the bid price was paid on May 12, 1986, through the accused (respondent), as when the payment was done 11 days thereafter directly to Genstar, or vice-versa." Hence, the integrity of the Sheriff's Certificate of Sale was not affected.
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On 10 April 1991, respondent filed a Manifestation informing this Court of the promulgation of the above resolution and praying that "by virtue of the dismissal of the Criminal Case filed against the respondent before the Sandiganbayan, the Administrative Case . . . be likewise dismissed."

On 6 May 1991, this Court resolved to refer the case to the Office of the Court Administrator for investigation, report and recommendation. In his Memorandum of 11 December 1991, then Court Administrator, now a member of this Court, Josue N. Bellosillo, opined that the dismissal of Criminal Case No. 12987 by the Sandiganbayan does not necessarily warrant the dismissal of the administrative case against the respondent considering that the quantum of evidence needed to sustain a judgment of conviction in a criminal case is proof beyond reasonable doubt, while in administrative proceedings, only moral certainty is required; by way of comment to the Sandiganbayan's statement to the effect that the records do not show that the rights and obligations of any of the parties involved would have been substantially affected if the bid price was paid either on 12 May 1986 or 23 May 1986, he avers that in the crime of falsification of public or official documents, whether by public officials or private persons, it is not necessary that there be present the idea of gain or intent to cause damage to a third person for the reason that in contradistinction to falsification of private documents, the principal act punished in the former is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed. 1 Court Administrator Bellosillo then recommended the referral of the case to the Executive Judge of the RTC of Manila for investigation, report and recommendation. Acting thereon, this Court, in the Resolution of 5 February 1992, referred the instant case to the said Executive Judge for investigation, report and recommendation. Thereupon, Executive Judge Bernardo P. Pardo conducted an investigation; after completing the same, he submitted on 5 August 1992 his Report and Recommendation wherein, on the basis of the following summation of evidence and findings:
"In his testimony, Atty. Redentor R. Melo stated that on May 12, 1986, at 9:00 o'clock in the morning, he personally went to El Varadero de Manila Compound in Cavite City to attend the auction sale of property levied upon by deputy sheriff Ramon G. Enriquez and advertised for sale at auction scheduled on said date and time. He waited until past 4:00 o'clock in the afternoon without sheriff Enriquez appearing. Then, he left and returned to Manila. At about 5:00 o'clock that the same afternoon, he was advised that Sheriff Enriquez appeared at past 4:00 o'clock but that no auction sale was conducted.

In a sheriff's partial report dated May 23, 1986, respondent deputy sheriff Enriquez stated that on May 3, 1986, he served a copy of a writ of execution issued by Judge Region T. Veridiano of the Regional Trial Court of Manila upon Gregorio Coronel at the El Varadero de Manila dockyard at Sangley Point, Cavite City. Immediately thereafter, he made a levy of personal property of the defendant and scheduled the sale on May 12, 1986 at 10:00 o'clock in the morning at El Varadero de Manila, Sangley Point, Cavite City, to satisfy the writ of execution. On May 8, 1986, third party claims were filed involving the levied property. On May 12, 1986, the judgment creditor posted the necessary indemnity bond duly approved by the court. After the bond was posted, deputy sheriff Enriquez conducted the sale and one Rolando Patriarca was the highest bidder in the total amount of P1,325,000.00 and which amount was credited to the partial satisfaction of the writ (copy of the Sheriff's Partial Report dated May 23, 1986 as filed in the record of Civil Case No. 8530134 is hereto attached Annex "B" for ready reference). In the minutes of the sheriff's sale dated May 12, 1986, it is made to appear that the bidding started at 3:55 p.m. and was finished at 5:00 p.m. on May 12, 1986 with Roland C. Patriarca as the highest bidder (copy of the said minutes is hereto attached as Annex "C").
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Deputy Sheriff Ramon G. Enriquez did not present any evidence during the investigation. He submitted the case on the basis of the Sheriff's Return dated May 23, 1986. He stated that he received the bid money on May 12, 1986 on which date he issued the certificate of sale. Respondent Enriquez admitted that he did not require the judgment creditor to pay the sheriff's percentage of commission. In his testimony, Atty. Jose C. Sison, counsel for judgment creditor stated that the auction took place May 12, 1986 on which date the bid price was given to him in check by the highest bidder Rolando Patriarca; that he would not have agreed if the payment was made on May 23, 1986.

Much as we would like to accept the testimony of Atty. Sison as the truth, we find that he is sadly mistaken. In its resolution dated May 15, 1989, the Sandiganbayan, on the basis of stipulation (sic) of facts and the evidence adduced, held that on May 23, 1986, the highest bidder Rolando Patriarca offered the three (3) vessels M/V Dadiangas, T/B Marinero and T/B Timonel out of several other personal properties bidded (sic), to Rizalina Ingco-Cailian, a businesswoman engaged in the sale of scrap iron. These vessels were sold to Cailian for the price of

P1,325,000.00. Cailian, highest bidder Patriarca and his wife repaired to the Navotas Branch of the Philippine National Bank that same day. Cailian bought cashier's check No. 273290 dated May 23, 1986 for P1,325,000.00. which, upon request of Patriarca, who said he had no money to pay for the vessels, was made payable to the order of "Genstar Container c/o Atty. Jose C. Sison" the judgment creditor (resolution, p. 4, p. 84, rec.). This piece of evidence is certainly eloquent proof of the fact that there was no payment of the bid price by the bidder Rolando Patriarca on May 12, 1986 to the sheriff amounting to P1,325,000.00. As found by the Sandiganbayan, it was the bidder's buyer (sic) Rizalina Ingco-Cailian who paid the bid price directly to the judgment creditor. This took place on May 23, 1986. Indeed, if the bid price was given to the respondent deputy sheriff on May 12, 1986, it was his duty to deposit the amount immediately with the court's cashier. He did not do this. He did not also require the judgment creditor to pay the sheriff's percentage of collection. Consequently, the inevitable conclusion is that the respondent sheriff was remiss in his duties and that the sheriff's certificate of sale was falsified because the truth is that the bid price was not paid by the highest bidder on May 12, 1986. In fact, there was no auction conducted on that date because it was already past 4:00 o'clock, the (sic) sheriff was not yet at the place of auction which was indeed scheduled at 10:00 a.m., May 12, 1986. The bid price was actually paid by a third party who bought the three (3) vessels out of several other properties levied upon. She paid therefor directly to the judgment creditor. The sheriff's percentage of commission was not paid. IN VIEW WHEREOF, we respectfully submit that the respondent Deputy Sheriff Ramon G. Enriquez is guilty of the charge of falsifying the sheriff's certificate of sale dated May 12, 1986 in Civil Case No. 8530134 of the Regional Trial Court of Manila."

he recommended the following:


"WHEREFORE, we respectfully recommend that respondent Deputy Sheriff Ramon G. Enriquez be dismissed from the service, with forfeiture of retirement benefits, if any."

We find the above findings of executive Judge Pardo to be supported by the evidence. His conclusions and recommendation are therefore in order. We wish to add, however, that from the facts surrounding the case, it appears that (a) no bidding was held on 12 May 1986; even if one was conducted, the

alleged highest bidder, one Roland Patriarca, did not have the money to pay for his bid of P1,325,000.00, thereby resulting in a failure of the proceedings; or (b) the sale was consummated only on 23 May 1986, without the requisite bidding, to Rizalina Ingco-Cailian to whom Patriarca allegedly "sold" what he bought during the "bidding" of 12 May 1986. In his Notice of Levy and Sale dated 3 May 1986, the respondent expressly stated that he "will sell at PUBLIC AUCTION to the highest bidder for CASH and in Philippine Currency on May 12, 1986 at 10:00 o'clock in the morning or soon thereafter at El Varadero de Manila, Sangley Point, Cavite" the vessel M/V Dadiangas, Tugboat Timonel, Tugboat Marinero and the other properties therein described. The unrebutted testimony of Atty. Redentor R. Melo reveals that he went to the auction site at 9:00 o'clock in the morning of 12 May 1986 and stayed there until past 4:00 o'clock in the afternoon. Respondent did not show up to conduct the auction sale. Later, at around 5:00 o'clock in the afternoon, Atty. Melo, who had by that time returned to Manila, was advised that the respondent appeared at 4:00 o'clock but that no auction was conducted. In his Minutes of Sheriff's Sale dated 12 May 1986, the respondent made it appear that he started the auction sale at 3:55 P.M. and concluded the proceedings at 5:00 o'clock that same afternoon with Patriarca submitting the highest bid in the amount of P1,325,000.00. There is no explanation as to why he could not start the bidding at 10:00 o'clock in the morning as set out in his Notice. In the light of Atty. Melo's unrebutted testimony, it is evident that the respondent falsified this entry in the Minutes. In his Sheriff's Certificate of Sale also dated 12 May 1986, the respondent certified that the highest bidder "thereupon did pay to the undersigned Deputy Sheriff the bid price of ONE MILLION THREE HUNDRED TWENTY FIVE THOUSAND (P1,325,000.00) PESOS, which amount was credited to the partial satisfaction of the Writ of Execution." However, it is a fact that as also found by the Sandiganbayan in its Resolution of 15 May 1989, which the respondent cannot refute as he himself submitted the same to this Court and even asked for the dismissal of the administrative case against him on the basis of the said Resolution:
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". . . on May 23, 1986, Patriarca offered the three vessels M/V Dadiangas, T/B Marinero, and T/B Timonel to Rizalina Ingco-Cailian, a businesswoman engaged in the buy and sell of scrap iron. Having agreed on the price of P1,325,000.00 for the three vessels, Cailian, Patriarca, and his wife repaired to the Navotas Branch of the Philippine National Bank that same day. Cailian bought Cashier's Check No. 273290 dated May 23, 1986, for P1,325,000.00 which, upon request of Patriarca who said he had no money to pay for the vessels, was made payable to the order of `GEN. STAR CONTAINER C/O ATTY. JOSE C. SISON,' the judgment creditor.

On the same day, May 23, 1986, they went to Branch XXXI, RTC of Manila, where Cailian met the accused for the first time, Atty. Jose C. Sison, and one Judge Luz. Atty. Sison, Judge Luz, and Patriarca with his wife brought Cailian to the canteen of the building housing Branch XXXI. She gave the cashier's check to Atty. Sison, and Judge Luz prepared our Deed of Sale. It was dated May 20, 1986, the figure `20' being handwritten, and appeared to have been acknowledged on the same date. As a result of the transaction, Patriarca delivered to Cailian M/V Dadiangas and one of the tugboats, which was later on taken back from her. The other tugboat was the subject of a third-party claim of Compania Maritima alleged to be different from Maritime, the judgment debtor."

Clearly, therefore, if indeed the public auction was held on 12 May 1986 and Patriarca was the highest bidder therein, he did not at such time have the cash, corresponding to his submitted bid, for delivery to the respondent and eventually, the judgment creditor. Accordingly, pursuant to his own Notice, which of course is binding on him, Patriarca could not be awarded the bid. The latter's inability to produce cash is equivalent to a bidder's refusal to pay under Section 22, Rule 39 of the Rules of Court in which case, as provided therein, the sheriff "may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby." Moreover, the sheriff may thereafter reject any subsequent bid of such person. Since Patriarca had no available cash to pay for the bid, the respondent could neither deliver the subject articles nor execute and deliver to the former a certificate of sale as provided for in Section 25, Rule 39 of the Rules of Court. Thus, even granting for the sake of argument that he did conduct the public auction on 12 May 1986, the respondent, in view of the non-payment of the purchase price, violated said Section 25. Furthermore, he falsified his Sheriff's Certificate of Sale upon entering therein the fact that Patriarca "thereupon did pay" to him the bid price of P1,325,000.00 which was credited to the partial satisfaction of the writ of execution. Assuming that Patriarca truly paid the purchase price, there could be no possible explanation for the belated Sheriff's Partial Report dated 23 May 1986. In the light of the foregoing, We conclude that Patriarca never acquired ownership over the vessel M/V Dadiangas and the tugboats Marinero and Timonel. Neither could he then have "sold" the same to Cailian. Hence, the latter stands on an entirely different footing and must then be considered as the true vendee who purchased the vessels on 23 May 1986 without any public bidding.

In this regard, the respondent, together with a certain Judge Luz and Atty. Jose C. Sison, became a willing co-conspirator to conceal this illegal act by making it appear that Patriarca sold the vessels to Cailian per a deed of sale which the said Judge Luz prepared on 23 May 1986, but which was dated 20 May 1986. In his haste to cover up for his misdeeds, he even forgot to charge against the proceeds of the said "sale" the sheriff's fee which is prescribed in Section 7, Rule 141 of the Rules of Court; such an omission certainly prejudiced the government. It is unfortunate that the Sandiganbayan failed to appreciate these illegal acts and despicable maneuverings. Be that as it may, its dismissal of the criminal case on the ground of insufficiency of evidence was never meant, as respondent doggedly believed and arrogantly asserted, to foreclose administrative action against him or to give him a clean bill of health in all respects. The Sandiganbayan, in dismissing the same, was simply saying that the prosecution was unable to prove the guilt of the respondent beyond reasonable doubt, a condition sine qua non for conviction 2 because of the presumption of innocence which the Constitution guarantees an accused. 3 Lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. 4 Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires in these cases such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 5

Going back to Our findings, there is no doubt in Our minds that the respondent (a) falsified the Minutes of Sale and the Sheriff's Certificate of Sale; (b) violated Sections 22 and 25, Rule 39 of the Rules of Court by not conducting another bidding assuming one was held on 12 May 1986 after the alleged highest bidder. Patriarca, failed to pay the bid price, by executing in the latter's favor a certificate of Sheriff's Sale and by delivering the auctioned vessels despite the failure to pay; (c) illegally sold the vessels to Cailian on 23 May 1986 without a public bidding; and (d) maliciously connived and conspired with Patriarca, Cailian and others to cover up such illegal acts by making it appear, by means of an antedated deed of sale, that Patriarca sold the vessels to Cailian. Respondent is therefore guilty of gross dishonesty, grave misconduct and conduct prejudicial to the best interest of the service. He not only deliberately violated the integrity of official acts of an employee of the court, but also undermined the faith and trust of the public in the Judiciary. He has transgressed

the constitutional command that as a public office is a public trust, all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives. 6 In Jereos vs. Reblando, 7 We laid down the rule that the conduct and behavior of every one connected with an office charged with the dispensation of justice, such as the court of which the herein respondent is the assigned sheriff, should be circumscribed with the heavy burden of responsibility. His conduct, at all times, must not only be characterized with propriety and decorum, but above all else must be beyond suspicion.
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While it is but proper that the respondent should not be kept a minute longer in the Judiciary, his dismissal from the service should not end this case. In the light of the above findings of conspiracy with other parties, including a certain Judge Luz who prepared the alleged deed of sale in favor of Cailian, there is a need to dig deeper, in a manner of speaking, in this case. This could open the door to the secret chambers of a rumored syndicate which is in the business of fixing attachments and execution sales. WHEREFORE, the Court resolves to DISMISS from the service, effective immediately, respondent RAMON G. ENRIQUEZ, for gross dishonesty, grave misconduct and conduct prejudicial to the best interest of the service, with forfeiture of all benefits, except the monetary value of his leave credits, if any, and with prejudice to his re-employment in any branch or service of the government, including government-owned or controlled corporations. The Office of the Court Administrative is hereby directed to conduct a thorough inquiry into and investigation of the circumstances surrounding the execution sale in question, more particularly the true identity and alleged participation of certain Judge Luz as above indicated. For that purpose, it should avail of the records of Criminal Case No. 12987 of the Second Division of the Sandiganbayan and take the testimonies of, among others, the respondent, Ms. Rizalina IngcoCailian, Atty. Jose C. Sison and Mr. Rolando Patriarca. This decision is immediately executory. SO ORDERED.

EN BANC
[G.R. No. 91391. January 24, 1991.]

FRANCISCO I. CHAVEZ, in his capacity as Solicitor General, petitioner, vs. THE HON. SANDIGANBAYAN (First Division) and JUAN PONCE ENRILE, respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas for private respondent.


SYLLABUS 1.ADMINISTRATIVE LAW; PUBLIC OFFICERS; PUBLIC OFFICIALS ARE LIABLE FOR ACTS PERFORMED IN CONNECTION WITH THEIR OFFICIAL DUTIES WHERE THEY ACTED ULTRA VIRES OR WHERE THERE IS A SHOWING OF BAD FAITH. The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. 2.CONSTITUTIONAL LAW; EXECUTIVE ORDER NO. 1 (CREATING PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT); IMMUNITY FROM SUIT OF MEMBERS; INVOCATION THEREOF DOES NOT RESULT IN AUTOMATIC DROPPING OF CHARGES. The petitioner's argument that the immunity proviso under Section 4(a) of Executive Order No. 1 also extends to him is not well-taken. A mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped. 3.ID.; ID.; ID.; LIMITED TO ACTS DONE IN THE OFFICIAL DISCHARGE OF THEIR FUNCTIONS. In the case of Presidential Commission on Good Government v.Pea (159 SCRA 556 [1988]) then Chief Justice Claudio Teehankee, added a clarification of the immunity accorded PCGG officials under Section 4(a) of Executive Order No. 1 that no absolute immunity like that sought by Mr. Marcos in his Constitution for himself and his subordinates is herein involved. It is understood that the immunity granted the members of the Commission by virtue of the unimaginable magnitude of its task to recover the plundered wealth and the State's exercise of police power was immunity from liability for damages in the official discharge of the task granted the members of the Commission much in the same manner that judges are immune from suit in the official discharge of the functions of their office. 4.ID.; ID.; ID.; CANNOT INSTITUTIONALIZE IRRESPONSIBILITY AND NONACCOUNTABILITY. Immunity from suit cannot institutionalize irresponsibility

and non-accountability nor grant a privileged status not claimed by any other official of the Republic. 5.ADMINISTRATIVE LAW; PUBLIC OFFICERS; HIGH POSITION IN GOVERNMENT DOES NOT CONFER LICENSE TO PERSECUTE. High position in government does not confer a license to persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be taken against public officers or private citizens alike. 6.REMEDIAL LAW; ACTIONS; FILING OF ORDINARY CIVIL ACTION FOR DAMAGES AGAINST A LAWYER, PROPER FOR ALLEGED HARASSMENT FALLING UNDER ARTICLE 32 OF THE CIVIL CODE; IT DOES NOT CONSTITUTE A COMPULSORY COUNTERCLAIM. The charges pressed by respondent Enrile for damages under Article 32 of the Civil Code arising from the filing of an alleged harassment suit with malice and evident bad faith do not constitute a compulsory counterclaim. To vindicate his rights, Senator Enrile has to file a separate and distinct civil action for damages against the Solicitor General. To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a plaintiff or complainant in the case would lead to mischievous consequences. A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability. (See Agpalo, Legal Ethics [1980] p. 147 citing Javier v. Cornejo, 63 Phil. 293 [1936]; In re Tionko, 43 Phil. 191 [1922]; In re: Atty. C. T. Oliva, 103 Phil. 312 [1958]; Lualhati v. Albert, 57 Phil. 86 [1932]; Toguib v. Tomol, Jr., G.R. Adm. Case No. 554, Jan. 3, 1969; People v. Macellones, 49 SCRA 529 [1973]; Tan Kui v. Court of Appeals, 54 SCRA 199 [1973]). A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending himself. 7.ID.; ID.; ID.; ID.; CASE AT BAR. As counsel of the Republic, the Solicitor General has to appear in controversial and politically charged cases. It is not unusual for high officials of the Government to unwittingly use shortcuts in the zealous desire to expedite executive programs or reforms. The Solicitor General cannot look at these cases with indifferent neutrality. His perception of national interest and obedience to instructions from above may compel him to take a stance which to a respondent may appear too personal and biased. It is likewise unreasonable to require Government Prosecutors to defend themselves against counterclaims in the very same cases they are prosecuting. As earlier stated, we do not suggest that a lawyer enjoys a special immunity from damage suits. However, when he acts in the name of a client, he should not be sued on a counterclaim in the very same case he has filed only as counsel and not as a

party. Any claim for alleged damages or other causes of action should be filed in an entirely separate and distinct civil action. DECISION GUTIERREZ, JR., J :
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The petitioner challenges the resolutions dated June 8, 1989 and November 2, 1989 of the Sandiganbayan issued in Civil Case No. 0033 which granted the motion of private respondent Juan Ponce Enrile, one of the defendants in the civil case, to implead the petitioner as additional party defendant in Enrile's counterclaim in the same civil case and denied the petitioner's motion for reconsideration. On July 31, 1987, the Republic of the Philippines, through the Presidential Commission on Good Government (PCGG) with the assistance of Solicitor General Francisco Chavez filed with the respondent Sandiganbayan a complaint docketed as Civil Case No. 0033 against Eduardo Cojuangco, Jr. and Juan Ponce Enrile, among others, for reconveyance, reversion and accounting, restitution and damages. After the denial of his motion to dismiss, respondent Enrile filed his answer with compulsory counterclaim and cross-claim with damages. The Republic filed its reply to the answer and motion to dismiss the counterclaim. The motion was opposed by respondent Enrile. On January 30, 1989, respondent Sandiganbayan issued a resolution, to wit:
"The resolution of the Motion to Dismiss the Counterclaim against the Plaintiff government is deferred until after trial, the grounds relied upon not appearing to be indubitable. On the matter of the additional parties (Solicitor General Chavez, ExPCGG Chairman Diaz, former Commissioners Doromal, Rodrigo, Romero and Bautista), the propriety of impleading them either under Sec. 14, Rule 60 or even under Sec. 12 as third-party defendant requires leave of Court to determine the propriety thereof. No such leave has been sought. Consideration thereof cannot be entertained at this time nor

may therefore, the Motion to Dismiss the same be considered." (Rollo, p. 329; Annex "H", Petition)

Respondent Enrile then requested leave from the Sandiganbayan to implead the petitioner and the PCGG officials as party defendants for lodging this alleged "harassment suit" against him.
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The motion was granted in a resolution dated June 8, 1989, to wit:


"In respect to defendant Juan Ponce Enrile's Manifestation and Motion dated February 23, 1989, praying for leave to implead additional parties to his counterclaim, the Court, finding reason in the aforesaid Manifestation and Motion, grants leave to implead the defendants named in the counterclaim and admits defendant Juan Ponce Enrile's answer with counterclaim. This is without prejudice to the defenses which said defendants may put forth individually or in common, in their personal capacities or otherwise." (Rollo, p. 27)

In a later resolution dated November 2, 1989, respondent Sandiganbayan denied a motion to reconsider the June 8, 1989 resolution. The dispositive portion of the resolution states:
"WHEREFORE, the Motions for Reconsideration of the Solicitor General and former PCGG officials Ramon Diaz, Quintin Doromal, Orlando Romero, Ramon Rodrigo and Mary Concepcion Bautista are denied, but, considering these motions as in the nature of motions to dismiss counterclaim/answers, resolution of these motions is held in abeyance pending trial on the merits." (Rollo, p. 31)

Thereafter, all the PCGG officials filed their answer to the counterclaims invoking their immunity from suits as provided in Section 4 of Executive Order No. 1. Instead of filing an answer, the petitioner comes to this Court assailing the resolutions as rendered with grave abuse of discretion amounting to lack of jurisdiction. The lone issue in this petition is the propriety of impleading the petitioner as additional party defendant in the counterclaim filed by respondent Enrile in Civil Case No. 0033. It may be noted that the private respondent did not limit himself to general averments of malice, recklessness, and bad faith but filed specific charges that

then PCGG Chairman Jovito Salonga had already cleared the respondent and yet, knowing the allegations to be false, the petitioner still filed the complaint. This can be gleaned from excerpts found in respondent Enrile's Answer with Compulsory Counterclaim and Cross-Claim:
xxx xxx xxx "Defendant-in-counterclaim Francisco Chavez was the Solicitor General who assisted the PCGG in filing and maintaining the instant Complaint against Defendant. As the incumbent Solicitor General, he continues to assist the PCGG in prosecuting this case. "He is sued in his personal and official capacities. "On or about October 1986, the PCGG, speaking through the then Chairman, now Senate President, Hon. Jovito R. Salonga, found and declared that 'not one of the documents left by then President and Mrs. Ferdinand E. Marcos including the 2,300-page evidence turned over to the PCGG by the US State Department implicates Enrile.' Chairman Salonga stressed that in view of the PCGG's findings, he refused to yield to the 'pressure' exerted on him to prosecute Defendant.
LibLex

xxx xxx xxx "Notwithstanding the findings of the PCGG that there was absolutely no evidence linking Defendant to the illegal activities of former President and Mrs. Ferdinand E. Marcos, the PCGG, this time composed of Chairman Ramon Diaz, the Commissioners Quintin Doromal, Ramon Rodrigo, Orlando Romero and Mary Concepcion Bautista, filed the Complaint against Defendant, among others, on or about 22 July 1987. Defendant has reasons to believe, and so alleges that Chairman Diaz, and Commissioners Doromal, Rodrigo, Romero and Bautista ordered, authorized, allowed or tolerated the filing of the utterly baseless complaint against Defendant. Solicitor General Francisco Chavez assisted or cooperated in, or induced or instigated, the filing of this harassment suit against Defendant. In so ordering, authorizing, allowing and tolerating the institution of the action against Defendant, all the aforenamed officers, with malice and in evident bad faith, and with grave abuse of power and in excess of their duty and authority, unjustly and unlawfully obstructed, defeated,

violated, impeded or impaired the constitutional rights and liberties of Defendant . . .," (Rollo, pp. 260-262)

On the other hand, the petitioner submits that no counterclaim can be filed against him in his capacity as Solicitor General since he is only acting as counsel for the Republic. He cites the case of Borja v. Borja, 101 Phil. 911 [1957] wherein we ruled:
". . . The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees. The principle that a counterclaim cannot be filed against persons who are acting in representation of another such as trustees in their individual capacities (Chambers v. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant will not alter the result We have arrived at." (at pp. 924-925)

Thus, the petitioner argues that since he is simply the lawyer in the case, exercising his duty under the law to assist the Government in the filing and prosecution of all cases pursuant to Section 1, Executive Order No. 14, he cannot be sued in a counterclaim in the same case. Presiding Justice Francis Garchitorena correctly observed that there is no general immunity arising solely from occupying a public office. The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. We ruled in one case:
"A number of cases decided by the Court where the municipal mayor alone was held liable for back salaries of, or damages to dismissed municipal employees, to the exclusion of the municipality, are not applicable in this instance. In Salcedo v. Court of Appeals (81 SCRA

408 [1978]) for instance, the municipal mayor was held liable for the back salaries of the Chief of Police he had dismissed, not only because the dismissal was arbitrary but also because the mayor refused to reinstate him in defiance of an order of the Commissioner of Civil Service to reinstate.
Cdpr

In Nemenzo v. Sabillano (25 SCRA 1 [1968]),the municipal mayor was held personally liable for dismissing a police corporal who possessed the necessary civil service eligibility, the dismissal being done without justifiable cause and without any administrative investigation. "In Rama v. Court of Appeals (G.R. Nos. L-44484, L-44842, L-44591, L44894, March 16 1987), the governor, vice-governor, members of the Sangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial engineer were ordered to pay jointly and severally in their individual and personal capacity damages to some 200 employees of the province of Cebu who were eased out from their positions because of their party affiliations." (Laganapan v. Asedillo, 154 SCRA 377 [1987])

Moreover, the petitioner's argument that the immunity proviso under Section 4(a) of Executive Order No. 1 also extends to him is not well-taken. A mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped. In the case of Presidential Commission on Good Government v. Pea (159 SCRA 556 [1988]) then Chief Justice Claudio Teehankee, added a clarification of the immunity accorded PCGG officials under Section 4(a) of Executive Order No. 1 as follows:
"With respect to the qualifications expressed by Mr. Justice Feliciano in his separate opinion, I just wish to point out two things: First, the main opinion does not claim absolute immunity for the members of the Commission. The cited section of Executive Order No. 1 provides the Commission's members immunity from suit thus: 'No civil action shall lie against the Commission or any member thereof for anything done or omitted in the discharge of the task contemplated by this order.' No absolute immunity like that sought by Mr. Marcos in his Constitution for himself and his subordinates is herein involved. It is understood that the immunity granted the members of the Commission by virtue of the unimaginable magnitude of its task to recover the plundered wealth and the State's exercise of police power was immunity from liability for damages in the official discharge of the task granted the members of the Commission much in the same manner that judges are immune from

suit in the official discharge of the functions of their office . . ." (at pp. 581-582)

Justice Florentino P. Feliciano stated in the same case:


"It may be further submitted, with equal respect, that Section 4(a) of Executive Order No. 1 was intended merely to restate the general principle of the law of public officers that the PCGG or any member thereof may not be held civilly liable for acts done in the performance of official duty, provided that such member had acted in good faith and within the scene of his lawful authority. It may also be assumed that the Sandiganbayan would have jurisdiction to determine whether the PCGG or any particular official thereof may be held liable in damages to a private person injured by acts of such manner. It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court." (at pp. 586-587)

Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. (id., at page 586) Where the petitioner exceeds his authority as Solicitor General, acts in bad faith, or, as contended by the private respondent, "maliciously conspir(es) with the PCGG commissioners in persecuting respondent Enrile by filing against him an evidently baseless suit in derogation of the latter's constitutional rights and liberties" (Rollo, p. 417), there can be no question that a complaint for damages may be filed against him. High position in government does not confer a license to persecute or recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be taken against public officers or private citizens alike. The issue is not the right of respondent Enrile to file an action for damages. He has the right. The issue is whether or not that action must be filed as a compulsory counterclaim in the case filed against him.
LexLib

Under the circumstances of this case, we rule that the charges pressed by respondent Enrile for damages under Article 32 of the Civil Code arising from the filing of an alleged harassment suit with malice and evident bad faith do not constitute a compulsory counterclaim. To vindicate his rights, Senator Enrile has to file a separate and distinct civil action for damages against the Solicitor General.

In the case of Tiu Po v. Bautista, (103 SCRA 388 [1981]), we ruled that damages claimed to have been suffered as a consequence of an action filed against the petitioner must be pleaded in the same action as a compulsory counterclaim. We were referring, however, to a case filed by the private respondent against the petitioners or parties in the litigation. In the present case, the counterclaim was filed against the lawyer, not against the party plaintiff itself. To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a plaintiff or complainant in the case would lead to mischievous consequences. A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability. (See Agpalo, Legal Ethics [1980] p. 147 citing Javier v. Cornejo, 63 Phil. 293 [1936]; In re Tionko, 43 Phil. 191 [1922]; In re: Atty. C. T. Oliva, 103 Phil. 312 [1958]; Lualhati v. Albert, 57 Phil. 86 [1932]; Toguib v. Tomol, Jr., G.R. Adm. Case No. 554, Jan. 3, 1969; People v. Macellones, 49 SCRA 529 [1973]; Tan Kui v. Court of Appeals, 54 SCRA 199 [1973] A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending himself.
LexLib

The problem is particularly perplexing for the Solicitor General. As counsel of the Republic, the Solicitor General has to appear in controversial and politically charged cases. It is not unusual for high officials of the Government to unwittingly use shortcuts in the zealous desire to expedite executive programs or reforms. The Solicitor General cannot look at these cases with indifferent neutrality. His perception of national interest and obedience to instructions from above may compel him to take a stance which to a respondent may appear too personal and biased. It is likewise unreasonable to require Government Prosecutors to defend themselves against counterclaims in the very same cases they are prosecuting.

As earlier stated, we do not suggest that a lawyer enjoys a special immunity from damage suits. However, when he acts in the name of a client, he should not be sued on a counterclaim in the very same case he has filed only as counsel and not as a party. Any claim for alleged damages or other causes of action should be filed in an entirely separate and distinct civil action.

WHEREFORE, the present petition is GRANTED. The questioned resolutions of the Sandiganbayan are SET ASIDE insofar as they allow the counterclaim filed against the petitioner. SO ORDERED.