PANIS vs CIVIL SERVICE COMMISSION
officialdom.
FACTS:
Petitioner was employed as Administrative Officer of the
Hospital,while private respondent was Administrative Officer of
the City HealthDepartment detailed at the said hospital. The
Mayor appointed private respondent to the position of Assistant
Chief of Hospital for Administration of CCMC. Petitioner, a
candidate for the said position, promptly protested the
appointment before the Regional Office of the Civil Service
Commission (CSC). The CSC Regional Office,
however,indorsed the matter to the Office of the City Mayor,
which in turn referred itto the Office of the City Attorney. The City
Attorney dismissed petitioner's protest and upheld the
appointmentof private respondent. This dismissal was affirmed
by the CSC Regional Officeand later on appeal, by respondent
CSC. Hence, the present petition.Petitioner contends that the
appointment of private respondent was made inviolation of law,
existing civil service rules and established
jurisprudencebecause (1) the position of Assistant Chief of
Hospital for Administration wasnot legally created; (2) assuming
that it was, there was no qualificationstandard nor valid
screening procedure; and (3) the seniority and next-in-rank rules
were disregarded.
ISSUE/S:
WON the appointment was valid.
HELD:
YES. The position of Assistant Chief of Hospital for
Administration is the very same position of Hospital
Administrator created by Ordinance No.1216. The Office of
Hospital Administrator was not extinguished, but the designation
thereof merely corrected to reflect the proper classification of the
position under existing rules. The Office of Assistant Chief of
Hospital for Administration therefore was created and existed in
accordance with law. The determination who among the
qualified candidates should be preferred belongs to the
appointing authority. The Mayor of Cebu City, in the instant
case, chose to appoint private respondent. In other words, one
who is
"next in rank" to a vacancy is given preferential consideration for
promotion to the vacant position, but it does not necessarily
follow that he alone and no one else can be appointed. There is
no vested right granted the next in rank nor a ministerial duty
imposed on the appointing authority to promote the holder to the
vacant position. An appointment, whether to a vacancy or to a
newly created position, is essentially within the discretionary
power of whomsoever it is vested. Once a candidate possesses
the minimum qualities required by law, sufficient discretion, if
not plenary, is granted to the appointing authority. It is
markworthy that private respondent was detailed at the CCMC
primarily to help in upgrading the level of performance of the
said hospital.
DELFIN DIVINAGRACIA vs PATRICIA STO. TOMAS
BELLOSILLO, J.:
The primordial purpose of our civil service laws is to establish
and maintain a merit system in the selection of public officers
and employees without regard to sex, color, social status or
political affiliation. But there are times when appointments to
public office are dominated by partisan favoritism and
patronage, where tenurial rights are subject to the whims of
On 1 August 1980 Filomena R. Mancita was appointed
Municipal Development Coordinator (MDC) of Pili, Camarines
Sur, in a permanent capacity. On 14 March 1983 when the Local
Government Code took effect, the office was renamed Municipal
Planning and Development Coordinator (MPDC). On 28 March
1
1983 the Sangguniang Bayan of Pili approved Resolution No.
38 creating and organizing the Office of MPDC. Mancita held
2
over the position until 1985.
On 1 January 1985 the Joint Commission on Local Government
Personnel Administration approved the reorganization plan and
staffing pattern of the Municipality of Pili. In a letter dated 17
3
June 1985 Mayor Anastacio M. Prila notified Mancita that her
services were being terminated effective at the close of office
hours on 1 July 1985 on the ground that the Office of MDC was
abolished as a result of the reorganization of the local
government of Pili. Private respondent Prescilla B. Nacario who
was then the Municipal Budget Officer was appointed MPDC on
10 June 1985 to take effect on 1 July 1985. Nacario was4
replaced by Digna Isidro as Municipal Budget Officer. Isidro was
succeeded a year later by Eleanor Villarico who served until
1990.
In 1988 the Local Government Officers Services, which included
the local Budget Office, was nationalized and placed under the
Department of Budget and Management. As a result, the
authority to appoint the Budget Officers of the different local
government units devolved upon the Secretary of the Budget.
When Villarico resigned on 1 March 1990 the Budget Office
became vacant until 30 September 1991, or for more than a
year, owing to the lack of a qualified candidate that the Secretary
of the Budget could appoint. In the meantime, Juan Batan, the
former Municipal Budget Officer of Baao, Camarines Sur, was
appointed Officer-in-Charge of the Municipal Budget Office of
Pili. He was later replaced by Francisco Deocareza, the former
Budget Officer of Naga City, in the same capacity. 5
On 1 October 1991, petitioner Alexis D. San Luis, Cashier II of
the Department of Environment and Natural Resources (DENR),
was temporarily appointed Municipal Budget Officer of Pili by
Secretary Guillermo N. Carague of the Department of Budget
and Management. When control over the Local Government
Officers Services was returned to the local government units by
virtue of the Local Government Code of 1991 (R.A. 7160 as
implemented by E.O. 503), San Luis was reappointed to the
same position on 22 June 1992, this time in a permanent
capacity, by petitioner Delfin N. Divinagracia, Mayor of Pili. 6
San Luis started in the career civil service in 1977 as a casual
clerk in the DENR, rising from the ranks until he was appointed
Cashier II based in Legaspi City, the position he was holding
when appointed Municipal Budget Officer of Pili. 7
Meanwhile, Mancita appealed her termination to the Merit
Systems and Protection Board (MSPB). On 20 June 1989 the
8
MSPB declared her separation from the service illegal, holding
that the Office of the Municipal Development Coordinator was
abolished by the Local Government Code of 1991 and not by
the reorganization of the Municipality of Pili as claimed by Mayor
Prila. According to the MSPB, Mancita was in fact qualified for
the newly-created position of MPDC since the powers and duties
of the two positions were essentially the same. The MSPB
ordered Mayor Divinagracia to reinstate Mancita to the position
of MPDC or to an equivalent position, and to pay her backwages
from the date of her separation. The decision of MSPB was
9
appealed by Mayor Divinagracia to the Civil Service
Commission but the appeal was dismissed on 16 July 1990 per
CSC Resolution No. 90-657. On 15 October 1990, Mayor
10
Divinagracia informed private respondent Nacario that she was
being relieved of her position as MPDC effective 16 November
1990 in order to comply with the MSPB decision to reinstate
Mancita as MPDC.
On 8 November 1990 private respondent Prescilla B. Nacario
filed a Petition for Declaratory Relief and Prohibition with
Preliminary Injunction with the Regional Trial Court of Pili, Br.
31, docketed as Civil Case No. P-17819, against CSC
Chairperson Patricia A. Sto. Tomas, Mayor Delfin N.
Divinagracia, Jr., Elium Banda, Regional Director of CSC in
Region 5, and Filomena R. Mancita, praying for the annulment
of CSC Resolution No. 90-657. Presiding Judge Ceferino P.
Barcinas of Br. 31 issued a temporary restraining order enjoining
the implementation of the questioned CSC resolution and set the
date for the hearing of the application for preliminary injunction.
Mancita filed a motion to dismiss on the ground that the trial
court had no jurisdiction over the subject matter. Her motion was
denied. Mancita then filed a special civil action
for certiorari under Rule 65 before this Court questioning the
denial of her motion. Through Mr. Justice Teodoro R. Padilla we
granted the petition and held that the lower court had no
jurisdiction over the case since all decisions, orders and
resolutions of the Civil Service Commission were subject to
review only by this Court on certiorari under Rule 65 of the Rules
of Court.11
While the petition of Mancita was pending with us, Nacario sent
a query to public respondent Commission asking about her
status as a permanent employee of the Municipality of Pili after
she had accepted the position of MPDC. In a letter dated 8
December 1992 public respondent opined that the reinstatement
of Mancita to the position of MPDC was not a valid cause for
Nacario's termination, and since she was the former Municipal
Budget Officer she had the right to return to that position.12
On 15 March 1993 Mayor Divinagracia wrote to CSC
Chairperson Patricia A. Sto. Tomas seeking a reconsideration
of her opinion of 8 December 1992. Mayor Divinagracia
explained the factual circumstances behind the ouster of
Mancita and the resulting appointment of Nacario to the position
of MPDC, arguing that San Luis was validly appointed by the
Secretary of the Budget and confirmed by the CSC, hence,
entitled to security of tenure.
13
On 27 May 1993 public respondent issued CSC Resolution No.
93-1996 denying the request of Mayor Divinagracia for a
reconsideration. Upholding Nacario's right to security of tenure
the CSC held that the reinstatement of Mancita to the position of
MPDC could not be a valid cause for the termination of Nacario.
Public respondent relied on Sec. 13, Rule VI, of the Omnibus
Rules Implementing Book V of E.O. No. 292, otherwise known
as the Revised Administrative Code of 1978 in directing the
restoration of Nacario to her former position. Sec. 13 mandates
the return of an appointee, in a chain of promotions, to his former
position once his appointment is subsequently disapproved.
Petitioners have come to us for relief praying that CSC
Resolution No. 93-1996 be nullified for having been issued with
grave abuse of discretion. On 5 October 1993, upon motion of
petitioners, this Court issued a status quo ante order enjoining
the enforcement of the questioned CSC order. Petitioners
14
contend that Sec. 13, Rule VI, of the Omnibus Rules
Implementing the Revised Administrative Code (E.O. 292) does
not apply to the present case because the rule covers only
appointments in a chain of promotions and not where a public
officer was merely transferred to another position of the same
rank, grade and level.
Petitioners further contend that Nacario was deemed to have
vacated her position as Budget Officer when she accepted her
appointment as MPDC considering that there were several
appointments made to the Budget Office in the past eight (8)
years since her transfer. According to petitioners, San Luis
15
was also denied his right to be heard when public respondent
ordered him to vacate his position without affording him an
opportunity to contest the claim of Nacario thus violating his
constitutional right to due process. 16
Upon the other hand, private respondent claims that she did not
voluntarily apply for transfer from the Budget Office to the Office
of MPDC but was constrained to "accept" the new position
because of Mayor Prila. She was, in her own words, "a passive
participant in the movement of personnel" in the municipal
government of Pili having acted as a "subservient public official"
in assuming the position of MPDC.
Nacario maintains that her "acceptance" of the position of MPDC
which she admits is of the same rank, salary grade and level
was motivated by her respect for Mayor Prila who was then her
superior. In fact, according to her, she applied for the position of
Budget Officer with the Department of Budget and Management
while she was MPDC indicating that she did not abandon or
relinquish her former position as alleged by petitioners. 17
For their part, public respondents Sto. Tomas and Ereneta, Jr.,
insist on the application to the present case of the automatic
reversion rule provided under Sec. 13, Rule VI, of the Omnibus
Rules Implementing Book V of E.O. 292. They submit that the
term "chain of promotions" must not be interpreted in a literal,
rigid and narrow sense but must be construed liberally in favor
of private respondent who merely accepted the position of
MPDC to accommodate her superior unaware that her new
appointment thereto would be infirmed. 18
We deny the petition. Petitioner Alexis D. San Luis cannot hold
on to the position of Municipal Budget Officer. On the other hand,
respondent Prescilla B. Nacario who is protected by law in her
security of tenure should be reinstated thereto.
Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292
provides that —
Sec. 13. All appointments involved in a chain
of promotions must be submitted
simultaneously for approval by the
Commission. The disapproval of the
appointment of a person proposed to a higher
position invalidates the promotion of those in
lower positions and automatically restores
them to their former positions. However, the
affected persons are entitled to the payment
of salaries for services actually rendered at a
rate fixed in their promotional appointments.
Under the aforecited section, before a public official or employee
can be automatically restored to her former position, there must
first be a series of promotions; second, all appointments are
simultaneously submitted to the CSC for approval; and third, the
CSC disapproves the appointment of a person proposed to a
higher position.
The essential requisites prescribed under Sec. 13 do not avail in
the case at bench. To start with, the movement of Nacario from
the Budget Office to the Office of MPDC cannot be considered
a promotion for the term connotes an increase in duties and
responsibilities as well as a corresponding increase in
salary. Conformably therewith, we find the movement of
19
Nacario one of lateral transfer. 20
A careful examination of the qualifications, powers and duties of
a Budget Officer and an MPDC provided under Secs. 475 and
476 of the Local Government Code of 1991 shows that the latter
office is not burdened with more duties and responsibilities than
the former. It is also interesting to note that there was, on the
contrary, a reduction in the basic salary of Nacario, from
P30,505.20 per annum as Budget Officer to P27,732.00 per
21
annum as MPDC. Moreover, private respondent admitted in
22
her comment and in her memorandum that the position of
Budget Officer and MPDC were of the same rank, salary grade
and level. This was attested to by Vilma J. Martus, the Human
23
Resource Management Officer of Pili, who certified that per
Position Allocation List (PAL) of the municipality the Budget
Officer and MPDC are of equal level. 24
Aside from the lack of a series of promotions, the other two (2)
requisites are not also present, i.e., the appointments of the
parties concerned were not simultaneously submitted to the
CSC for approval — the appointment (permanent) of Nacario
was approved by the CSC on 13 June 1985 while the
appointment (permanent) of San Luis was approved by the CSC
on 9 February 1993 — and, the ouster of Nacario from the Office
of MPDC was a result of the MSPB decision directing the
reinstatement of Mancita and not because the CSC disapproved
her appointment as MPDC.
While the contemporaneous construction of Sec. 13 by the CSC
is entitled to great weight and respect, this Court shall depart
from such interpretation when it is clearly erroneous or when25
there is no ambiguity in the rule, as in the instant case, and
26
yield to the letter of the law taking its terms in their plain, ordinary
and popular meaning. 27
Let us now examine whether the lateral transfer of private
respondent was validly made in accordance with Sec. 5, par. 3,
Rule VII, Omnibus Rules Implementing Book V of E.O. 292. If
not, then private respondent is entitled to be protected in her
security of tenure.
Sec. 5, par. 3, of Rule VII provides that —
Transfer shall not be considered disciplinary
when made in the interest of public service, in
which case, the employee concerned shall be
informed of the reasons therefor. If the
employee believes that there is no justification
for the transfer, he may appeal his case to the
commission. (emphasis supplied)
According to Nacario she never applied or sought appointment
by transfer to the position of MPDC since she even had no prior
knowledge of her appointment. She assumed the new
28
position only in order to comply with the move of Mayor Prila to
supposedly "reorganize" the municipal government of Pili.
Nacario did not question her transfer because she revered the
mayor and did not in any way intend to displease him.
The submissive attitude displayed by private respondent
towards her transfer is understandable. Although Nacario was
not informed of the reasons therefor she did not complain to the
mayor or appeal her case to the CSC if in fact the same was not
made in the interest of public service. For it is not common
among local officials, even those permanent appointees who are
more secured and protected in their tenurial right, to oppose or
question the incumbent local executive on his policies and
decisions no matter how improper they may seem.
Even as early as 1968, in Nemenzo v. Sabillano, we held that
29
—
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.
Private respondent was the Budget Officer of Pili for almost eight
(8) years from August 1980 until her transfer in July,
1988. Nacario appeared to be satisfied with her work and felt
30
fulfilled as Budget Officer until Mayor Prila appointed her MPDC
to fill up the position, which was not even vacant at that time. It
was only seven (7) days after Nacario's appointment when
Mayor Prila informed Mancita that her services were being
terminated. Simply put, Mayor Prila was so determined in
terminating Mancita that he conveniently pre-arranged her
replacement by Nacario. Although Nacario continued to
discharge her duties, this did not discourage her from trying to
regain her former position. Undaunted, she applied with the
Office of the Budget Secretary for the position of Budget Officer
upon learning that it was placed under the Department of Budget
and Management. She was not however successful.
In Sta. Maria v. Lopez we distinguished between a transfer
31
and a promotion and laid down the prerequisites of a valid
transfer thus —
A transfer is a "movement from one position
to another which is of equivalent rank, level
and salary, without break in service."
Promotion is the "advancement from one
position to another with an increase in duties
and responsibilities as authorized by law, and
is usually accompanied by an increase in
salary" . . . A transfer that results in promotion
or demotion, advancement or reduction or a
transfer that aims to "lure the employee away
from his permanent position," cannot be done
without the employees' consent. For that
would constitute removal from office. Indeed,
no permanent transfer can take place unless
the officer or employee is first removed from
the position held, and then appointed to
another position. (emphasis provided)
The rule that unconsented transfers amount to removal is not
however without exception. As we further said in Sta. Maria, —
 Concededly there are transfers which do not
amount to removal. Some such transfers can
be effected without the need for charges
being proffered, without trial or hearing, and
even without the consent of the employee . . .
. The clue to such transfers may be found in
the "nature of the appointment." Where the
appointment does not indicate a specific
station, an employee may be transferred or
assigned provided the transfer affects no
substantial change in title, rank and salary . .
. . Such a rule does not proscribe a transfer
carried out under a specific statute that
empowers the head of an agency to
periodically reassign the employees and
officers in order to improve the service of the
agency . . . . Neither does illegality attach to
the transfer or reassignment of an officer
pending the determination of an
administrative charge against him; or to the
transfer of an employee, from his assigned
station to the main office, effected in good
faith and in the interest of the service pursuant
to Sec. 32 of the Civil Service Act.
Clearly then, the unconsented lateral transfer of Nacario from
the Budget Office to the Office of MPDC was arbitrary for it
amounted to removal without cause hence, invalid as it is
anathema to security of tenure. When Nacario was extended a
permanent appointment on 1 August 1980 and she assumed the
position, she acquired a legal, not merely an equitable, right to
the position. Such right to security of tenure is protected not only
by statute, but also by the Constitution and cannot be taken
32
away from her either by removal, transfer or by revocation of
appointment, except for cause, and after prior notice. 33
The guarantee of security of tenure is an important object of the
civil service system because it affords a faithful employee
permanence of employment, at least for the period prescribed
by law, and frees the employee from the fear of political and
personal prejudicial reprisal.34
Consequently, it could not be said that Nacario vacated her
former position as Budget Officer or abdicated her right to hold
the office when she accepted the position of MPDC since, in
contemplation of law, she could not be deemed to have been
separated from her former position or to have terminated her
official relations therewith notwithstanding that she was actually
discharging the functions and exercising the powers of MPDC.
The principle of estoppel, unlike in Manalo v. Gloria, cannot 35
bar her from returning to her former position because of the
indubitable fact that private respondent reluctantly and hesitantly
accepted the second office. The element of involuntariness
tainted her lateral transfer and invalidated her separation from
her former position.
For another thing, the appointment of San Luis as Budget Officer
carried with it a condition. At the back of his appointment is
inscribed the notation Sa kondisyon nasa ayos ang
pagkakatiwalag sa tungkulin ng dating nanunungkulan, which
when translated means "Provided that the separation of the
former incumbent is in order." Considering that the separation of
Nacario who was the former incumbent was not in order, San
Luis should relinquish his position in favor of private respondent
Nacario. This is, of course, without prejudice to San Luis' right to
be reinstated to his former position as Cashier II of the DENR,
he being also a permanent appointee equally guaranteed
security of tenure.
A final word. Petitioners cannot claim that they have been
denied due process of law by public respondent. The records
reveal that petitioners had the opportunity to question the
adverse opinion rendered by CSC Chairperson Sto. Tomas in a
letter dated 15 March 1993. The correspondence which was in
36
the nature of a motion for reconsideration constitutes sufficient
opportunity for petitioners who felt aggrieved to inform the CSC
of their side of the controversy. What is sought to be
safeguarded in the application of due process is not the lack of
previous notice but the denial of opportunity to be heard. 37
Before we write finis to this ponencia, we remind those public
officials who flaunt their authority — and those similarly inclined
— to faithfully abide by the Constitution and observe honestly
and in good faith the tenurial security of public servants who
serve the government with sincerity and dedication. They should
not be moved or removed from their established positions
without any lawful cause and pushed at will like pawns on the
bureaucratic chessboard.
WHEREFORE, premises considered, the petition is
DISMISSED. CSC Resolution No. 93-1996 is AFFIRMED
insofar as it orders the reinstatement of PRESCILLA B.
NACARIO to the Office of Municipal Budget Officer of Pili,
Camarines Sur. Accordingly, petitioner Mayor Delfin N.
Divinagracia, or whoever is now the incumbent Mayor of Pili or
acting in his behalf, is ORDERED to reinstate private respondent
Prescilla B. Nacario immediately to the position of Municipal
Budget Officer of Pili and petitioner Alexis D. San Luis to vacate
the said office without prejudice to regaining his former position
in the government if legally feasible and warranted.
SO ORDERED.
GENERAL vs ROCO
FACTS:
Respondent Roco was appointed by then President Ramos in
1996 as Regional Director of the LTO in Region V, a position
equivalent to CES rank level V and later reappointed by then
President Estrada to the same position in 1999.
At the time Roco’s appointment in 1996 and 1999, he was not a
CES eligible. However, during his incumbency in 1999, he was
conferred CES eligibility by the CESB.
On September 7, 1999, petitioner Luis Mario General, who is not
a CES eligible, was appointed by President Estrada as Regional
Director of the LTO in Region V, the same position being
occupied by Roco. Pursuant thereto, DOTC Undersecretary
Coloma as OIC issued a Memorandum directing General to
assume the said office immediately and for Roco to report to the
Office of the Secretary for further instructions.
Roco filed before the CA a petition for quo warranto which was
affirmed by the latter and ordered the nullification of General’s
appointment. From this decision General filed a petition for
review against Roco. The latter contends that CES eligibility is
enough to acquire security of tenure which grants him the right
to hold the position disputed.
ISSUE:
Whether Career Executive Service (CES) Eligibility is enough
and the appointment to a CES rank is not necessary to acquire
security of tenure.
RULING:
No. Section 27 (1), of the Civil Service Law (Subtitle A, Tittle I,
Book V of E.O. No. 292), provides that:
(1) Permanent status. - A permanent appointment shall be
issued to a person who meets all the requirements for the
position to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the
provisions of law, rules and standards promulgated in pursuance
thereof.
In the career executive service, the acquisition of security of
tenure which presupposes a permanent appointment is
governed by the rules and regulations promulgated by the CES
Board, thus:
Career Executive Service Eligibility
Passing the CES examination entitles the examinee to a
conferment of a CES eligibility and the inclusion of his name in
the roster of CES eligibles. Conferment of CES eligibility is done
by the Board through a formal Board Resolution after an
evaluation is done of the examinees performance in the four
stages of the CES eligibility examinations.
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the
other requirements prescribed by the Board, an incumbent of a
CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President upon
the recommendation of the Board. This process completes the
official’s membership in the CES and most importantly, confers
on him security of tenure in the CES.
As clearly set forth in the foregoing provisions, two requisites
must concur in order that an employee in the career executive
service may attain security of tenure, to wit:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of
employees in the career executive service pertains only to rank
and not to the office or to the position to which they may be
appointed. Thus, a career executive service officer may be
transferred or reassigned from one position to another without
losing his rank which follows him wherever he is transferred or
reassigned.
In the case at bar, there is no question that respondent Ramon
S. Roco, though a CES eligible, does not possess the
appropriate CES rank, which is - CES rank level V, for the
position of Regional Director of the LTO (Region V). Falling short
of one of the qualifications that would complete his membership
in the CES, respondent cannot successfully interpose violation
of security of tenure. Accordingly, he could be validly reassigned
to other positions in the career executive service.
MONSANTO vs FACTORAN
Facts: In 1983, Monsanto (then assistant city treasurer of
Calbayog City) was convicted by the Sandiganbayan of estafa
thru falsification of public documents. She was sentenced to jail
and to indemnify the government in the sum of P4,892.50. The
SC affirmed the decision. She then filed a motion for
reconsideration but while said motion was pending, she was
extended by President Marcos absolute pardon which she
accepted (at that time, clemency could be given even before
conviction). On the strength of such pardon, she wrote the City
Treasurer of Calbayog asking for automatic reinstatement to her
position without need of a new appointment since it was still
vacant. The letter was referred to the Ministry of Finance (MF)
which at that time had control over the City Treasuries. The
Ministry of Finance ruled in favor of Monsanto but said that
appointment was only to retroact from the date of she was given
pardon. Monsanto asked for reconsideration saying that the full
pardon wiped out the crime and thus her service in the
government should not be considered to have interrupted. Thus,
the date of her reinstatement should correspond to the date of
her preventive suspension; that she is entitled to backpay for
the entire period of her suspension; and that she should not be
required to pay the proportionate share of the amount of
P4,892.50. The motion for reconsideration was referred to the
Office of the President. Executive Secretary Factoran reversed
the ruling of MF, ruling that acquittal and not pardon is the only
ground for reinstatement in the public service and entitlement to
payment of his salaries, benefits and emoluments due to him
during the period of his suspension pendente lite. Monsanto
thus filed a petition before the SC. She contends that since the
pardon was given when her case was still pending on appeal
before the SC, no final verdict has yet been handed and
consequently the accessory penalty attached to the crime which
is forfeiture from public office did not attached. Also she
contends that the pardon given before the final verdict is
tantamount to acquittal.
Issues:
1. What is the effect of absolute pardon?
2. Is Monsanto entitled to backpay?
3. Is a public officer, who has been granted an absolute pardon
by the Chief Executive, entitled to reinstatement to her former
position without need of a new appointment?
4. May petitioner be exempt from the payment of the civil
indemnity imposed upon her by the sentence?
Held:
1. Pardon is defined as "an act of grace, proceeding from the
power entrusted with the execution of the laws, which exempts
the individual, on whom it is bestowed, from the punishment the
law inflicts for a crime he has committed. It is the private, though
official act of the executive magistrate, delivered to the individual
for whose benefit it is intended, and not communicated officially
to the Court. While a pardon has generally been regarded as
blotting out the existence of guilt so that in the eye of the law the
offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very essence
of a pardon is forgiveness or remission of guilt. Pardon implies
guilt. It does not erase the fact of the commission of the crime
and the conviction thereof. It does not wash out the moral stain.
It involves forgiveness and not forgetfulness.
2. No. A pardon looks to the future. It is not retrospective. It
makes no amends for the past. It affords no relief for what has
been suffered by the offender. It does not impose upon the
government any obligation to make reparation for what has
been suffered. “Since the offense has been established by
judicial proceedings, that which has been done or suffered while
they were in force is presumed to have been rightfully done and
justly suffered, and no satisfaction for it can be required.”
3. No. Pardon granted after conviction frees the individual from
all the penalties and legal disabilities and restores him to all his
civil rights. But unless expressly grounded on the person's
innocence (which is rare), it cannot bring back lost reputation for
honesty, integrity and fair dealing. A pardon, albeit full and
plenary, cannot preclude the appointing power from refusing
appointment to anyone deemed to be of bad character, a poor
moral risk, or who is unsuitable by reason of the pardoned
conviction. The pardon granted to petitioner has resulted in
removing her disqualification from holding public employment
but it cannot go beyond that. To regain her former post as
assistant city treasurer, she must re-apply and undergo the
usual procedure required for a new appointment.
4. No. Civil liability arising from crime is governed by the
Revised Penal Code. It subsists notwithstanding service of
sentence, or for any reason the sentence is not served by
pardon, amnesty or commutation of sentence. Petitioner's civil
liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of the thing
due, remission of the debt, merger of the rights of creditor and
debtor, compensation and novation. (Monsanto vs. Factoran,
G.R. No. 78239 February 9, 1989)
NOTE: Conviction by final judgment is now necessary before
parole or pardon could be extended. (Section 19, Article VII of
the Constitution, People vs. Casido; People vs. Salle)
SABELLO vs DECS
Section 19: Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures,
after conviction by final judgment. He shall also have the power
to grant amnesty with the concurrence of a majority of all the
Members of the Congress.
FACTS: (1) Petitioner, together with the barrio captain, were
charged of the violation of Republic Act 3019, and both were
convicted to suffer a sentence of one year and disqualification
to hold public office. The herein petitioner appealed his case to
the Court of appeals, Manila. The Court of appeals modified the
decision by eliminating the subsidiary imprisonment in case of
insolvency in the payment of one-half of the amount being
involved. The herein petitioner, being financially battered, could
no longer hire a lawyer to proceed to the highest court of the
land. (2) Petitioner was granted an ABSOLUTE PARDON by the
President of the Republic of the Philippines, restoring him to 'full
civil and political rights.' With this instrument on hand, the herein
petitioner applied for reinstatement to the government service,
only to be reinstated to the wrong position of a mere classroom
teacher and not to his former position as Elementary School
Principal I.
ISSUE: Whether or not petitioner should be reappointed to his
former position after the President’s absolute pardon
HELD: WHEREFORE, the petition is GRANTED in that the
Secretary of the Department of Education, Culture and Sports
and/or his duly authorized representative is hereby directed to
appoint petitioner to the position of Elementary School Principal
I or its equivalent.
RATIO: (1) Taking into consideration that this petition is filed by
a non-lawyer, who claims that poverty denies him the services
of a lawyer, We also set aside the requirement of exhaustion of
administrative remedies and resolved to go direct to the merits
of the petition. (2)In Monsanto vs. Factoran, Jr., this Court held
that the absolute disqualification from office or ineligibility from
public office forms part of the punishment prescribed under the
penal code and that pardon frees the individual from all the
penalties and legal disabilities and restores him to all his civil
rights. Although such pardon restores his eligibility to a public
office it does not entitle him to automatic reinstatement. He
should apply for reappointment to said office.As there are no
circumstances that would warrant the diminution in his rank,
justice and equity dictate that he bereturned to his former
position of Elementary School Principal I and not to that of a
mere classroom teacher. However, the Court cannot grant his
prayer for backwages from September 1, 1971 to November 23,
1982 since in Monsanto this Court said he is not entitled to
automatic reinstatement.
REPUBLIC vs CA
Nature: Appeal by certiorari of the decision of the CA
Petitioners: Republic (acting through the Sugar Regulatory
Administration), Republic Planters Bank Respondents: RTC
Judge, RTC Deputy Sheriffs, Reyes, Treyes and Fudolin Quick
Summary: SRA, an administrative body, cannot represent the
Republic of the Philippines because EO 18 did not give it the
powers to do so.
Facts:
• May 16, 1986 (EO 18 took effect May 28, 1986) – Republic
Planters Bank (RPB) filed a complaint in the RTC for sum of
money/delivery of personal property with restraining order
and/or preliminary injunction against Philippine Sugar
Commission (PHILSUCOM) and the National Sugar Trading
Corporation (NASUTRA)
• They asked the court to order PHILSUCOM and NASUTRA to
render a faithful account of different bank accounts being held;
to render a faithful inventory of all the sugar stocks for the crop
year 8485; to remit dollar accounts held; to deliver sugar stocks
of crop year 84-85; pay interests and penalties for accounts
covered by unpaid sugar quedans, damages, attorney’s fees
and cost of the suit
• Before PHILSUCOM and NASUTRA could answer, a
compromise agreement was submitted and was approved by
the lower court
• Three orders were issued
o First order – dismissed separate petitions for relief
from judgment filed by different sugar associations
(National Federation of Sugar Cane Planters, Sugar
Central Inc, Independent Sugar Planters)
o Second order – granted a second motion to resolve
a pending motion for issuance of a writ of execution
and allowed the issuance of an alias writ of execution
o Third order – required officers of the RPB to appear
before the court to explain why they should not be cited
in contempt for defying the alias writ of execution
• CA denied the petition for the nullification of the orders
because o RPB accepted the appointment as Trustee whose
obligation is to pay received benefits by way of trustee’s fees
and cannot question the right of private respondents to
attorney’s fees
o SRA may not lawfully bring action on behalf of the
Republic because EO 18 says that PHILSUCOM
remains a judicial entity for 3 years for the purpose of
prosecuting and defending suits against it.
o Petition should have been filed through the OSG and
not through the OGCC; SRA cannot lawfully represent
the Government because it may only perform powers
and functions as may be authorized by the laws which
created them
• SC required respondents to comment and issued TRO
directing respondent Judge to desist and refrain from further
proceeding in the civil case
• SC was informed that the Judge was ordering the
implementation of an alias writ of execution
Issue/Held: • Did the CA err in holding that neither OGCC nor
SRA can represent the Government in an action before it? NO
Ratio: Sol Gen says:
• SRA has no legal personality to file the instant petition under
the name of the Republic because under EO 18, it is not vested
with the legal capacity to sue.
• EO 18 – abolished PHILSUCOM but its juridical personality
was to continue for three years for the purpose of prosecuting
and defending suits. CA committed no reversible error Private
respondents says:
• Almost same with Sol Gen
• RPB – GOCC engaged in the banking business. o Petitioners
have no legal personality to initiate petition because SRA is not
a party in the case before the TC (since it was filed against
PHILSUCOM and NASUTRA).
o It cannot be presumed that SRA had substituted
PHILSUCOM and NASUTRA in the case as both
continue to legally exist for the purpose of prosecuting
and defending suits in liquidation of its affairs
SC says: CA correctly ruled that SRA may not lawfully bring an
action on behalf of the Republic of the Philippines and that the
OGCC does not have the authority to represent the petitioner in
this case.
o EO abolished PHILSUCOM and created SRA but
PHILSUCOM was allowed to continue as a juridical
entity for 3 years for the purpose of prosecuting and
defending suits by or against it…under the supervision
of the SRA
o Sec 3, EO 18 does not specifically include the power
to represent the Republic nor the power to sue and be
sued.
o Sec 4, EO 18 – specific functions does not include
the power to represent the Republic
o CHARTER DOES NOT GRANT THE SRA THE
POWER TO REPRESENT REPUBLIC IN SUITS
FILED BY OR AGAINST IT.
SC says SRA is an administrative agency
o Administrative agency – only such powers as are
expressly granted to it by law and those that are
necessarily implied in the exercise; government body
charged with administering and implementing
particular legislation
o Power to represent the Republic – withheld from SRA
so it cannot institute the instant petition.
OGCC also cannot represent SRA or Republic o OGCC is the
principal law office of all GOCCs including subsidiaries; the
president may not allow it to act as lawyer for a specified GOCC
or subsidiary
o Since SRA is neither a GOCC or a subsidiary, OGCC
does not have the authority to represent it.
PADOLINA vs FERNANDEZ
Facts
• Fernandez was PAGASA’s Finance and Management Division
Chief who was reassigned to Taguig, pursuant to SO 129;
• Fernandez protested this as being tantamount to constructive
dismissal. Padolina refused to set SO 129 aside, and was
upheld by the CSC;
• DOST Special Order returned certain employees to their
original assignments, but excluded others, including Fernandez;
• An investigation found Fernandez guilty of insubordination,
and was ordered to accept the reassignment;
• The CA on appeal declared SO 129 void for violating security
of tenure. The SC affirms, hence this MR.
Issue
>W/N the reassignment is valid.
Held/Ratio
• No. A reassignment is a movement from one unit to another in
the same agency which does not involve a reduction in rank,
status, salary, and does not require an appointment.
• SO 129 does not have any definite duration for reassignment,
it being expressly subject to a separate DOST Special Order.
• It is tantamount to an indefinite floating assignment resulting in
a demotion. It removes her power of supervision over 41
subordinate employees, thereby diminishing her status.
PASTOR vs CITY OF PASIG
FACTS: Petitioner Remedios Pastor is Budget Officer of the
Municipality of Pasig. In 1992, she was reassigned to the Office
of the Municial Administrator pending investigation of reports
against her concerning the issuance of Advice of Allotments. In
1995, after those years with no case filed against her, she asked
for reinstatement to her former position. She was instead
reassigned to another unit of the now city government.
ISSUES: Whether or not Pastor’s reassignment to various
offices was equivalent to removal in office.
HELD: YES. It has been held that a reassignment that is
indefinite and results in a reduction in rank, status and salary is
in effect a constructive removal from the service.
TORRES vs DE LEON
Q: When Torres was the Chapter Administrator of the Philippine
National Red Cross (PNRC), General Santos City Chapter, the
PNRC Internal Auditing Office conducted an audit of the funds
and accounts of the PNRC, General Santos City Chapter.
Based on the audit report submitted to respondent De Leon,
Torres incurred a "technical shortage" in the amount of
P4,306,574.23. De Leon in a Memorandum, formally charged
petitioner with Grave Misconduct for violating PNRC Financial
Policies on Oversubscription, Remittances and Disbursement of
Funds. After the completion of the investigation of the case
against petitioner, respondent issued a Memorandum imposing
upon petitioner the penalties of one month suspension and
transfer to the National Headquarters. Thereafter, Torres filed a
Notice of Appeal addressed to the Board of Governors of the
PNRC through respondent and furnished a copy thereof to the
Civil Service Commission (CSC). The CSC, on April 21, 2008,
promulgated a Resolution dismissing Torres’ appeal and
imposing upon her the penalty of dismissal from service. Torres
filed a motion for reconsideration with the CSC, but the same
was denied. According to Torres, the Supreme Court, in the
case of Liban vs. Gordon held that the PNRC is not a
government-owned and controlled corporation (GOCC). Hence,
the CSC has no jurisdiction or authority to review the appeal that
she herself filed.
Is Torres’ argument correct?
A: No, Torres’ argument is not correct. The Civil Service
Commission has jurisdiction over the case. The Supreme Court
held in the case of Liban vs. Gordon (2009) that the PNRC,
although not a GOCC, is sui generis in character, thus, requiring
the Court to approach controversies involving the PNRC on a
caseto-case basis. National Societies such as the PNRC act as
auxiliaries to the public authorities of their own countries in the
humanitarian field and provide a range of services including
disaster relief and health and social programmes. The PNRC,
as a National Society of the International Red Cross and Red
Crescent Movement, can neither "be classified as an
instrumentality of the State, so as not to lose its character of
neutrality" as well as its independence, nor strictly as a private
corporation since it is regulated by international humanitarian
law and is treated as an auxiliary of the State. Here, the CSC
has jurisdiction over the PNRC because the issue at hand is the
enforcement of labor laws and penal statutes as applied to
officials and employees of the government as provided under
the Administrative Code of 1987. The CSC has appellate
jurisdiction on administrative disciplinary cases involving the
imposition of a penalty of suspension for more than thirty (30)
days, or fine in an amount exceeding thirty (30) days salary.
Hence, the Civil Service Commission has jurisdiction over the
case.
WINSTON GARCIA vs MARIO MOLINA
Doctrines: The fact that the charge against the respondent was
subsequently declared to lack factual and legal bases did not,
ipso facto, render the preventive suspension without legal basis.
Gloria vs. CA has clarified that the preventive suspension of civil
service employees charged with dishonesty, oppression or
grave misconduct, or neglect of duty is authorized by the Civil
Service Law, and cannot be considered unjustified even if the
charges are ultimately dismissed so as to justify the payment of
salaries to the employee concerned.
Facts: For review is the decision promulgated on April 29, 2004,
whereby the Court of Appeals (CA) nullified the Memorandum
dated September 8, 2003 by which the petitioner, in his capacity
as the President of the Government Service Insurance System
(GSIS), had charged the respondent, an Attorney V in the
Litigation Department of the Legal Service Group of the GSIS,
with grave misconduct and preventively suspended him for 60
days.
In his affidavit, Elino F. Caretero pointed to the respondent as
the person who had handed to him on August 26, 2003 the letter
entitled Is It True supposedly written by one R. Ibasco
containing "scurrilous and libellous statements" against
petitioner. Considering that Ibasco denied authorship of the
letter, the finger of suspicion came to point at the respondent,
who was consequently administratively investigated for grave
misconduct. After the investigation, the Investigation Unit
transmitted its Memorandum dated September 1, 2003 to the
respondent to require him to explain the circulation and
publication of the letter, and to show cause why no
administrative sanction should be imposed on him for doing so.
In response, he denied the imputed act.
Thereafter, the petitioner issued Memorandum dated
September 8, 2003 to formally charge the respondent with grave
misconduct, and to preventively suspend him for 60 days
effective upon receipt. The respondent sought the dismissal of
the charge on the ground of its being baseless; and requested
the conduct of a formal investigation by an impartial body.
The respondent also instituted in the CA a special civil action for
certiorari to challenge the legality of the Memorandum dated
September 8, 2003.
On April 29, 2004, the CA promulgated its assailed decision
annulling the petitioner's Memorandum dated September 8,
2003. Hence, this appeal by petition for review on certiorari. The
petitioner argues that it was in his power as the President and
General Manager of the GSIS to impose disciplinary action on
the respondent, pursuant to Section 47 of the Administrative
Code of 1987; that the characterization of the respondent's act
as grave misconduct was not arbitrary because the latter had
intentionally passed on or caused the circulation of the malicious
letter, thereby transgressing "some established and definite rule
of action" that sufficiently established a prima facie case for an
administrative charge; that the respondent had thereby violated
his solemn duty to defend and assist the petitioner in disregard
of his "legal, moral or social duty" to stop or at discourage the
publication or circulation of the letter. He submits that the
respondent's preventive suspension was done in accordance
with the Civil Service Uniform Rules on Administrative Cases,
and upon an evaluation of the evidence on record.
Issues:
Whether the petitioner Garcia, in the exercise of his
authority, had sufficient basis to formally charge the respondent
with grave misconduct and impose preventive suspension as a
consequence.
Whether the doctrine of exhaustion of administrative
remedy (DEAR) is applicable.
Rulings: 1. To resolve this issue, we need to ascertain if the
respondent's act of handing over the letter to Caretero
constituted grave misconduct. The CA concluded that the act of
the respondent of handing over the letter to Caretero did not
constitute grave misconduct because the act did not show or
indicate the elements of corruption, or the clear intent to violate
the law, or flagrant disregard of established rule. The Court
concurs with the CA.
Misconduct in office, by uniform legal definition, is such
misconduct that affects his performance of his duties as an
officer and not such only as affects his character as a private
individual. To warrant removal from office, it must have direct
relation to and be connected with the performance of official
duties amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of the
office. Moreover, it is “a transgression of some established and
definite rule of action, more particularly, unlawful behavior or
gross negligence by a public officer.” It becomes grave if it
“involves any of the additional elements of corruption, willful
intent to violate the law or to disregard established rules, which
must be established by substantial evidence.”
The record contains nothing to show that the respondent's act
constituted misconduct. The passing of the letter to Caretero did
not equate to any "transgression" or "unlawful behavior," for it
was an innocuous act that did not breach any standard, norm or
rule pertinent to his office. Neither could it be regarded as
"circulation" of the letter inasmuch as the letter was handed only
to a single individual who just happened to be curious about the
paper the respondent was then holding in his hands. The
handing of the letter occurred in ostensibly innocent
circumstances on board the elevator in which other employees
or passengers were on board. If the motive of the respondent
was to pass the letter in order to publicize its contents, he should
have made more copies of the letter. But that was not so,
considering that Caretero categorically affirmed in his affidavit
about asking the respondent what he had wanted to do with the
letter, to wit: Do you want me to photocopy the document Sir?,
but the respondent had simply replied: HINDI NA SA IYO NA
LANG YAN. It is plain, then, that intent to cause the widespread
dissemination of the letter in order to libel the petitioner could
not be justifiably inferred.
To be sure, the respondent's act could not be classified as
pertaining to or having a direct connection to the performance
of his official duties as a litigation lawyer of the GSIS. The
connection was essential to a finding of misconduct, for without
the connection the conduct would not be sanctioned as an
administrative offense.
The fact that the charge against the respondent was
subsequently declared to lack factual and legal bases did not,
ipso facto, render the preventive suspension without legal basis.
The formal charge against the respondent was for grave
misconduct, an administrative offense that justifies the
imposition of the preventive suspension of the respondent.
Gloria has clarified that the preventive suspension of civil
service employees charged with dishonesty, oppression or
grave misconduct, or neglect of duty is authorized by the Civil
Service Law, and cannot be considered unjustified even if the
charges are ultimately dismissed so as to justify the payment of
salaries to the employee concerned. Considering that the
respondent's preventive suspension had legal basis, he was not
entitled to backwages.
2. Anent the petitioner's insistence that the respondent did not
exhaust his administrative remedies, Section 21 of the Uniform
Rules on Administrative Cases in the Civil Service provides the
option either of filing a motion for reconsideration against the
preventive suspension order by the disciplining authority, or of
elevating the preventive suspension order by appeal to the Civil
Service Commission within 15 days from the receipt thereof.
We find and hold that the respondent was not strictly bound by
the rule on exhaustion of administrative remedies. His failure to
file the motion for reconsideration did not justify the immediate
dismissal of the petition for certiorari, for we have recognized
certain exceptional circumstances that excused his non-filing of
the motion for reconsideration. Among the exceptional
circumstances are the following, namely: when the issue
involved is purely a legal question.
Considering that the matter brought to the CA - whether the act
complained against justified the filing of the formal charge for
grave misconduct and the imposition of preventive suspension
pending investigation — was a purely legal question due to the
factual antecedents of the case not being in dispute. Hence, the
respondent had no need to exhaust the available administrative
remedy of filing the motion for reconsideration.
WHEREFORE, the Court PARTIALLY GRANTS
CIVIL SERVICE COMMISSION vs CRISOSTOMO PLOPINIO
FACTS:
Respondent Crisostomo M. Plopinio served as a COMELEC
Election Officer III of Sipocot, Camarines Sur, prior to his
separation from the service. A certain Alberto G. Adan (Adan)
filed a letter-complaint against respondent alleging that because
of respondent’s frequent absences, respondent failed to act on
Adan’s petition for disqualification of a barangay candidate
named Jessie V. Sanchez. Acting Director IV Adolfo A. Ibafiez
(Dir. Ibanez), Personnel Department, COMELEC, conducted an
investigation into Adan’s lettercomplaint against respondent and
submitted a Memorandum dated August 20, 2003 to
Commissioner Florentino A. Tuason, Jr. (Com. Tuason),
COMELEC, who, in turn, forwarded the same to the COMELEC
en banc for appropriate action.
In its Resolution No. 03-0278 dated September 11, 2003, the
COMELEC en bane adopted in toto Atty. Ibañez’s findings and
recommendation to drop respondent from the rolls of Comelec
employees effective January 1, 2003 and the salaries paid to
him until June 30, 2003 be charged against his leave credits.
However, the same shall be without prejudice to the filing of
formal charge for violating reasonable office rules and
regulations in view of his deliberate failure to submit his daily
time records for the months of January to April 2002 and from
January until present of the current year.
Com. Tuason then issued a Memorandum7 dated October 7,
2003, directing respondent to immediately cease and desist
from performing his official duties, based, among other grounds,
on his unauthorized absences; and appointing an Acting
Election Officer to serve the Municipality of Sipocot, Camarines
Sur, in order not to jeopardize the voters’ registration process at
said Municipality.
Meanwhile, Dir. Ibanez also issued a Memorandum dated
October 7, 20038 for the COMELEC en banc, withdrawing his
earlier recommendation to drop respondent from the rolls of
employees.
Because of the foregoing superseding events, it appears that
[respondent] was reporting, as he did report to office on certain
days per his daily time records submitted to the OPES. One key
issue however is that many DTR entries were being questioned
by [respondent’s] supervisor for being invalid or unauthorized
considering his reported absences.
Consequently, because of the inability to fully establish a
successive thirty-day absence without approved leave (AWOL)
on the part of [respondent], the undersigned withdraws his
former recommendation to drop from the rolls.
Through his Memorandum9 dated October 16, 2003 for the
COMELEC en bane, respondent sought reconsideration of
COMELEC Resolution No. 03-0278, as well as Com. Tuason’s
Memorandum dated October 7, 2003. Respondent lamented
that the COMELEC en banc was misled by Dir. Ibañez’s initial
recommendation to drop him from the rolls of employees, which
lacked factual and legal bases; and that he was not afforded due
process as he was never confronted with any formal charge
regarding his alleged absenteeism prior to COMELEC
Resolution No. 03- 0278.
ISSUE: Was the respondent deprived of due process?
RULING: No. There is no question that a public officer or
employee who is AWOL may be separated from service or
dropped from the rolls of employees without prior notice. Rule
VI, Section 63 of the Omnibus Rules on Leave in the Civil
Service provides:
Sec. 63. Effect of absences without approved leave. –
An official or employee who is continuously absent
without approved leave for at least thirty (30) working
days shall be considered on absence without official
leave (AWOL) and shall be separated from the service
or dropped from the rolls without prior notice. However,
when it is clear under the obtaining circumstances that
the official or employee concerned, has established a
scheme to circumvent the rule by incurring substantial
absences though less than thirty working (30) days 3x
in a semester, such that a pattern is already apparent,
dropping from the rolls without notice may likewise be
justified.
If the number of unauthorized absences incurred is less than
thirty (30) working days, a written Return-to-Work Order shall be
served to him at his last known address on records. Failure on
his part to report for work within the period stated in the Order
shall be a valid ground to drop him from the rolls. (Emphasis
supplied.)
Rule 19, Sections 93 and 96 of the Revised Rules on
Administrative Cases in the Civil Service (RRACCS)
similarly state: Rule 19 DROPPING FROM THE
ROLLS
Sec. 93. Grounds and Procedure for Dropping from the
Rolls. – Officers and employees who are either
habitually absent or have unsatisfactory or poor
performance or have shown to be physically and
mentally unfit to perform their duties may be dropped
from the rolls subject to the following procedures:
Absence Without Approved Leave An officer or
employee who is continuously absent without official
leave (AWOL) for at least thirty (30) working days shall
be separated from the service or dropped from the rolls
without prior notice. He/She shall, however, be
informed of his/her separation not later than five (5)
days from its effectivity which shall be sent to the
 address on his/her 201 files or to his/her last known
address;
If the number of unauthorized absences incurred is
less than thirty (30) working days, a written Return- to-
Work order shall be served on the official or employee
at his/her last known address on record. Failure on
his/her part to report to work within the period stated in
the order shall be a valid ground to drop him/her from
the rolls;
If it is clear under the obtaining circumstances that the official or
employee concerned, has established a scheme to circumvent
the rule by incurring substantial absences though less than thirty
(30) working days, three (3) times in a semester, such that a
pattern is already apparent, dropping from the rolls without
notice may likewise be justified.
Section 96. Dropping from the Rolls; NonDisciplinary
in Nature. – This mode of separation from the service
for unauthorized absences or unsatisfactory or poor
performance or physical or mental incapacity is non-
disciplinary in nature and shall not result in the
forfeiture of any benefit on the part of the official or
employee or in disqualification from reemployment in
the government. (Emphases supplied.)
Based on current rules, a public officer or employee may be
dropped from the rolls for AWOL without prior notice, under any
of the following circumstances:
(1) the public officer or employee was continuously absent
without approved leave for at least 30 working days; or (2) the
public officer or employee had established a scheme to
circumvent the rule by incurring substantial absences, though
less than 30 working days, three times in a semester, such that
a pattern was readily apparent.
Dropping from the rolls is not disciplinary in nature. It shall not
result in the forfeiture of any benefit of the public official or
employee concerned nor in said public official or employee’s
disqualification from reemployment in the government. Thus,
the concerned public official or employee need not be notified
or be heard.
OFFICE OF THE OMBUDSMAN and FACT-FINDING
INVESTIGATION BUREAU and OFFICE OF THE DEPUTY
OMBUDSMAN FOR THE MILITARY AND OTHER LAW
ENFORCEMENT OFFICES vs PS/SUPT. RAINIER ESPINA
The Facts
On July 11 and 17, 2012, petitioner the Fact-Finding
Investigation Bureau (FFIB) of the Office of the Deputy
Ombudsman for the Military and Other Law Enforcement Offices
(MOLEO) filed before the Ombudsman an affidavit-
complaint7 and a supplemental complaint,8 respectively,
charging Espina and several other PNP officers and private
individuals for: (a) violation of Republic Act No. (RA) 7080,9 RA
3019,10 RA 918411 and its Implementing Rules and Regulations
(IRR), and Malversation of Public Funds through Falsification of
Public Documents under Article 217 in relation to Article 171 of
the Revised Penal Code (RPC); and (b) Grave Misconduct and
Serious Dishonesty; arising from alleged anomalies that
attended the Philippine National Police's (PNP) procurement of
40 tires, and repair, refurbishment, repowering, and
maintenance services of a total of 28 units of V-150 Light
Armored Vehicles (LAVs), and the related transportation and
delivery expenses of 18 units of LAV s between August and
December 2007.12 It averred that the PNP did not comply with
the bidding procedure prescribed under RA 9184 and its IRR, in
that: (a) copies of the bid documents were not furnished to
possible bidders; (b) no pre-procurement and pre-bid
conferences were held; (c) the invitation to bid was not published
in a newspaper of general circulation; (d) the procuring agency
did not require the submission of eligibility requirements as well
as the technical and financial documents from the bidders; and
(e) no post qualification was conducted. Further, it claimed that
there were "ghost deliveries," i.e., the tires were never delivered
to the PNP and no repair and refurbishment works were actually
performed on the LAVs.13 The alleged anomalous transactions
are as follows:
Transactions Amount
1. Procurement of 40 tires for 10 LAVs ₱2,940,000.00
2. Repowering and refurbishing of 10
142,000,000.00
LAVs
3. Repair and maintenance of 18 LAVs 255,600,000.00
4. Transportation and delivery expenses14 9,200,000.00
₱409,
Total
740,000.0015
Espina, as the Acting Chief of the Management Division of the
PNP Directorate for Comptrollership at the time the
procurements were made,16 was impleaded in the aforesaid
complaints for noting/signing the Inspection Report Forms
(IRFs),17 which confirmed the PNP's receipt of the tires and
other supplies, and the performance of repair and refurbishment
works on the LAVs. According to the FFIB-MOLEO, by affixing
his signature on the IRFs, Espina supposedly facilitated the
fraudulent disbursement of funds amounting to
₱409,740,000.00 when no goods were actually delivered and no
services were actually rendered.18
In defense, Espina denied any participation in the bidding and/or
procurement process and maintained that he belonged to the
Management Division which is responsible for the inspection of
deliveries made to the PNP after the bidding and procurement
process.19 He also pointed out that pursuant to the Standing
Operating Procedure (SOP) No. XXA20 dated November 17,
1993, his only duty, as the said division's Acting Chief, was to
note the reports. According to him, it was not his responsibility
to personally inspect and confirm deliveries and go beyond the
contents of the IRFs submitted by his subordinates, absent any
irregularity reported by the property inspectors who are tasked
to check and examine deliveries.21
The Ombudsman Ruling
In a Joint Resolution22 dated December 19, 2012, the
Ombudsman found probable cause to indict Espina and several
other PNP officers for violation of Section 3 (e) of RA 3019,
Section 65 (b) (4) of RA 9184, and for Malversation of Public
Funds through Falsification under Article 217 in relation to Article
171 of the RPC. The Ombudsman also found them guilty of
Grave Misconduct and Serious Dishonesty and, accordingly,
recommended their dismissal from government service.23
Specifically, the Ombudsman held that Espina executed
indispensable acts which led to the completion of the illegal
transactions.24 The Ombudsman likewise found it incredulous
that the repair and refurbishment works on the LAV s were
completed in only seven (7) days, i.e., from December 20, 2007
to December 27, 2007, considering the magnitude of the work
involved, which included the delivery of the LAVs for repair, the
inspection and acceptance of materials to be used, the actual
conduct of repair and refurbishment works, and the delivery,
inspection, and acceptance of the repaired and refurbished
LAVs.25 The Ombudsman even noted the admission of one of
the experts engaged in the repair of the LAVs that the repair and
refurbishment works thereon were still on-going as late as
February 2008 until 2010 and, hence, could not have been
completed in December 2007.26
On reconsideration, the Ombudsman, through a Joint
Order27 dated July 8 2013, dropped the charges against Espina
and several other PNP Officers, for violation of Section 65 (b)
(4) of RA 9184, but sustained the other findings, including their
dismissal from service in view of their administrative liability. In
denying Espina's motion for reconsideration in the
administrative case, the Ombudsman pointed out that while it
was not Espina's duty to make his own inspections of the alleged
deliveries and work as the same devolved upon the property
inspectors, "it was incumbent upon [Espina] to affix his signature
only after checking the completeness and propriety of the
documents."28 Such disregard of duty paved the way for the
consummation of four (4) highly illegal and irregular
transactions, i.e., the disbursement of government funds
despite apparent non-delivery of the items and non-performance
of works procured.29
Aggrieved, Espina filed a petition for review30 before the CA, imp
leading both the Ombudsman and the FFIB-MOLEO
(collectively, petitioners), docketed as CA-G.R. SP No. 131114.
The CA Ruling
In a Decision31 dated February 27, 2014, the CA ruled in favor
of Espina and held that his act of affixing his signature on the
IRFs could not be considered as Grave Misconduct because he
did not: (a) unlawfully use his official position for the purpose of
benefiting himself;32 and (b) exhibit corrupt or depraved motives,
clear intent to violate the law, or flagrant disregard of established
rules. It observed that Espina had no participation in the bidding
and procurement process as he belonged to the PNP's
Management Division whose function is to inspect and note the
deliveries to the PNP after the required bidding and procurement
process had taken place. As such, no liability could attach to him
absent a nexus between his functions as Acting Chief of the
Management Division and the alleged anomalous procurement
process.33
The CA found Espina guilty, instead, of Simple Misconduct, a
less grave offense punishable with suspension for one (1) month
and one (1) day to six (6) months for the first offense, and
dismissal for the second offense. It rejected Espina's defense of
reliance in good faith on the acts of his subordinates, holding
that he had the obligation to supervise them and ensure that the
IRFs and Work Orders they prepared, as well as every
procurement-related document released by his division, were
regular, lawful, valid, and accurate, considering the significance
of the transaction related to the disbursement of public funds
over which great responsibility attached.34
However, the CA absolved Espina from the charge of Serious
Dishonesty, considering that he did not personally prepare the
IRFs but merely affixed his signatures thereon. At best, he
imprudently failed to check and counter-check the contents of
the IRFs and the Work Orders he signed, which, however, does
not equate to Serious Dishonesty.35
There being no aggravating or mitigating circumstance, the CA
imposed on Espina a three-month suspension reckoned from
the time he was actually dismissed from service.36
Dissatisfied, petitioners moved for reconsideration37 which was,
however, denied by the CA in a Resolution38 dated July 15,
2014; hence, the present petition.
The Issue Before the Court
The core issue for the Court's resolution is whether or not Espina
should be held administratively liable for the charges imputed
against him.
The Court's Ruling
The petition is partly meritorious.
At the outset, the Court emphasizes that as a general rule,
factual findings of the Ombudsman are conclusive when
supported by substantial evidence and are accorded due
respect and weight, especially when affirmed by the CA.39 In this
case, except as to the legal conclusion on what administrative
offense was committed by Espina, the Ombudsman and the CA
both found that Espina signed the IRFs even if there were
actually no tires delivered to the PNP and no repair and
refurbishment works performed on the LA Vs. Accordingly, these
findings of fact are conclusive and binding and shall no longer
be delved into, and this Court shall confine itself to the
determination of the proper administrative offense chargeable
against Espina and the appropriate penalty therefor.
In the case at bar, Espina was charged with grave misconduct
and serious dishonesty before the Ombudsman which found him
guilty as charged, and imposed on him the supreme penalty of
dismissal from government service with all its accessory
penalties, while the CA adjudged him guilty only of simple
misconduct and punished him with a three-month suspension.
Misconduct generally means wrongful, improper or unlawful
conduct motivated by a premeditated, obstinate or intentional
purpose.40 It is intentional wrongdoing or deliberate violation of
a rule of law or standard of behavior and to constitute an
administrative offense, the misconduct should relate to or be
connected with the performance of the official functions and
duties of a public officer.41 It is a transgression of some
established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer. 42
There are two (2) types of misconduct, namely: grave
misconduct and simple misconduct. In grave misconduct, as
distinguished from simple misconduct, the elements of
corruption, clear intent to violate the law, or flagrant disregard of
an established rule must be manifest.43 Without any of these
elements, the transgression of an established rule is properly
characterized as simple misconduct only.44
On the other hand, dishonesty, which is defined as the
"disposition to lie, cheat, deceive, or defraud; untrustworthiness,
lack of integrity,"45 is classified in three (3) gradations, namely:
serious, less serious, and simple.46 Serious dishonesty
comprises dishonest acts: (a) causing serious damage and
grave prejudice to the government; (b) directly involving
property, accountable forms or money for which respondent is
directly accountable and the respondent shows an intent to
commit material gain, graft and corruption; (c) exhibiting moral
depravity on the part of the respondent; (d) involving a Civil
Service examination, irregularity or fake Civil Service eligibility
such as, but not limited to, impersonation, cheating and use of
crib sheets; (e) committed several times or in various
occasions; (j) committed with grave abuse of
authority; (g) committed with fraud and/or falsification of official
documents relating to respondent's employment; and (h) other
analogous circumstances.47 A dishonest act without the
attendance of any of these circumstances can only be
characterized as simple dishonesty.48 In between the aforesaid
two forms of dishonesty is less serious dishonesty which obtains
when: (a) the dishonest act caused damage and prejudice to the
government which is not so serious as to qualify as serious
dishonesty; (b) the respondent did not take advantage of his/her
position in committing the dishonest act; and (c) other analogous
circumstances.49
Both grave misconduct and serious dishonesty, of which Espina
was charged, are classified as grave offenses for which the
penalty of dismissal is meted even for first time offenders.50
Here, the CA correctly observed that while Espina may have
failed to personally confirm the delivery of the procured items,
the same does not constitute dishonesty of any form inasmuch
as he did not personally prepare the IRFs but merely affixed his
signature thereon after his subordinates supplied the details
therein.
Neither can Espina's acts be considered misconduct, grave or
simple. The records are bereft of any proof that Espina was
motivated by a premeditated, obstinate or deliberate intent of
violating the law, or disregarding any established rule, or that he
wrongfully used his position to procure some benefit for himself
or for another person, contrary to duty and the rights of others.
However, after a circumspect review of the records, the Court
finds Espina administratively liable, instead, for Gross Neglect
of Duty, warranting his dismissal from government service.51 At
the outset, it should be pointed out that the designation of the
offense or offenses with which a person is charged in an
administrative case is not controlling, and one may be found
guilty of another offense where the substance of the allegations
and evidence presented sufficiently proves one's guilt, 52 as in
this case. Notably, the FFIB-MOLEO's supplemental complaint
accused Espina with failure to exercise due diligence in signing
the IRFs, which is sufficient to hold him liable for Gross Neglect
of Duty.53
Gross neglect of duty is defined as "[n]egligence characterized
by want of even slight care, or by acting or omitting to act in a
situation where there is a duty to act, not inadvertently but
willfully and intentionally, with a conscious indifference to the
consequences, insofar as other persons may be affected. It is
the omission of that care that even inattentive and thoughtless
men never fail to give to their own property." 54 In contrast, simple
neglect of duty is the failure of an employee or official to give
proper attention to a task expected of him or her, signifying a
"disregard of a duty resulting from carelessness or
indifference."55
As aptly observed by the CA, Espina had the obligation to
supervise his subordinates and see to it that they have
performed their respective functions in accordance with
law.56 To recall, Espina was the Acting Chief and Head of the
PNP's Management Division and, as such, had supervisory
powers over the departments or sections which comprise it,
namely: (a) the Internal Control and Inspection Section
(ICIS); (b) the Accountability and Assistance Section; (c) the
Management Improvement Section; and (d) the Claims and
Examination Section (CES).57 Espina himself admitted that the
property inspectors who were tasked to personally inspect
deliveries to the PNP belong to the ICIS which was under his
management and stewardship.58 In Lihaylihay v. People,59 the
Court pointed out that the nature of the public officers'
responsibilities and their role in the procurement process are
compelling factors that should have led them to examine with
greater detail the documents which they are made to approve.
Here, while SOP No. XX4 dated November 17, 1993 which
Espina cited does not expressly require the Head of the
Management Division to physically re-inspect, re-check, and
verify the deliveries to the PNP as reported by the property
inspectors under him, his duty was not simply to "note" or take
cognizance of the existence of the IRFs, but to reasonably
ensure that they were prepared in accordance with law, keeping
in mind the basic requirement that the goods allegedly delivered
to and services allegedly performed for the government have
actually been delivered and performed. As aptly pointed out by
the Ombudsman in its Joint Order dated July 8, 2013, "it was
incumbent upon [Espina] to affix his signature only after
checking the completeness and propriety of the
documents."60 However, while Espina claims that all the
necessary supporting documents such as photographs and
delivery receipts were attached to the IRFs at the time they were
routed to him for his signature,61 the Court is hard-pressed to
find proof substantiating such claim to justify his passive attitude
towards them. In this jurisdiction, it is axiomatic that he who
alleges a fact has the burden of proving it.62 Without evidence
showing otherwise, the Court is constrained to conclude that the
IRFs submitted to Espina for his signature were without
supporting documents and could not, perforce, be taken at face
value and relied upon. As this Court ruled in Jaca v. People,63 a
superior cannot rely in good faith on the act of a subordinate
where the documents that would support the subordinate' s
action were not even in his (the superior's) possession for
examination.
Moreover, the timing of the alleged repair and refurbishment
works was suspect. The short seven (7)-day period in
December, 2007 during which the repair and refurbishment
works were made on the LAV s should have prompted Espina
to doubt the veracity of the IRFs. As correctly observed by the
Ombudsman, it is improbable that the repair and refurbishment
works on the LAVs were carried out from December 20 to 27,
2007, given the magnitude of the work involved and the fact that
such period included the delivery of the LAV s for repair, the
inspection and approval of the materials to be used for the
repairs, the actual repair and refurbishment, and the delivery of
the LA Vs to the PNP after the repair.64
The foregoing should not have escaped Espina's attention had
he faithfully discharged the obligations attendant to his
office.1âwphi1 Indeed, the Court has pronounced that a public
officer's high position imposes upon him greater responsibility
and obliges him to be more circumspect in his actions and in the
discharge of his official duties.65 This particularly applies to the
instant controversy, especially where Espina's signature was
one of the final steps needed for the release of payment for the
procured items.66 In fact, the disbursement vouchers prepared
by the Logistics Support Service (LSS)
Finance Service were routed back to the CES of the
Management Division under Espina's supervision for final
examination of all claims.67 With all these considerations,
Espina was expected to employ diligence in ensuring that all
claims were supported by complete pertinent documents. As
succinctly put by the CA, Espina's duty as Acting Chief was not
merely ministerial and perfunctory as it related to the
disbursement of funds over which a great responsibility
attached.68
More so, considering the sheer magnitude of the amount in
taxpayers' money involved, i.e., ₱409,740,000.00, Espina
should have exercised utmost care before signing the IRFs. It is
of no moment that the disbursement of the ₱409,740,000.00
was spread over several transactions and not through a single
payment or that only the IRFs relating to the delivery of supplies
were allegedly presented;69 the fact remains that taxpayers'
money was spent without the corresponding goods and services
having been delivered to the government. Indeed, no rule is
more settled than that a public office is a public trust and public
officers and employees must, at all times, be accountable to the
people.70
Espina cannot trivialize his role in the disbursement of funds and
bank on the lack of confidential written reports from his
subordinates which would have prompted him to make further
inquiry. As aptly pointed out by petitioners, Espina was the last
person to affix his signature and, as such, had the power, if not
the duty, to unearth and expose anomalous or irregular
transactions.71 Espina cannot blindly adhere to the findings and
opinions of his subordinates, lest he be reduced to a mere clerk
who has no authority over his subordinates and the sections he
oversees.
The Court is not unaware of the ruling in Arias v.
Sandiganbayan72 (Arias) that heads of offices may rely on their
subordinates. For the Arias doctrine to apply, however, there
must be no reason for the head of offices to go beyond the
recommendations of their subordinates,73 which is not the case
here.
Given the amounts involved and the timing of the alleged
deliveries, the circumstances reasonably impose on Espina a
higher degree of care and vigilance in the discharge of his
duties. Thus, he should have been prompted to make further
inquiry as to the truth of his subordinates' reports. Had he made
the proper inquiries, he would have discovered the non-delivery
of the procured items and the non-performance of the procured
services, and prevented the unlawful disbursement. However,
he did not do this at all. Instead, he blindly relied on the report
and recommendation of his subordinates and affixed his
signature on the IRFs. Plainly, Espina acted negligently,
unmindful of the high position he occupied and the
responsibilities it carried, and without regard to his accountability
for the hundreds of millions in taxpayers' money involved.
Verily, this Court has repeatedly emphasized the time-honored
rule that a "[p ]ublic office is a public trust [and] [p]ublic 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."74 This high constitutional standard of conduct is not
intended to be mere rhetoric and taken lightly as those in the
public service are enjoined to fully comply with this standard or
run the risk of facing administrative sanctions ranging from
reprimand to the extreme penalty of dismissal from the
service.75 Erring public officials may also be held personally
liable for disbursements made in violation of law or regulation,
as stated in Section 52,76 Chapter 9, Subtitle B, Title I, Book V
of the Administrative Code of 1987.77 Thus, public officers, as
recipients of public trust, are under obligation to perform the
duties of their offices honestly, faithfully, and to the best of their
ability.78 Unfortunately, Espina failed miserably in this respect.
WHEREFORE, the petition is PARTLY GRANTED. The
Decision dated February 27, 2014 and the Resolution dated July
15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114 are
hereby SET ASIDE. A new one is ENTERED finding
respondent Rainier A. Espina GUILTY of GROSS NEGLECT
OF DUTY. Accordingly, he is DISMISSED from government
service with all the accessory penalties.
SO ORDERED.
BUENAFLOR vs RAMIREZ
FACTS: Chairman Eufemio Domingo of the Presidential
AntiGraft Commission (PAGC) appointed respondent Jose R.
Ramirez, Jr. as Executive Assistant III and concurrently
designated him as Assistant Accountant. On September 28,
2001, Chairman Domingo resigned,and petitioner Cesar D.
Buenaflor succeeded him. The petitioner terminated Ramirez as
of the same date as Chairman Eugenio's resignation on the
ground that his tenure had expired by virtue of the position of
Executive Assistant being personal and confidential, and,
hence, co-terminous with that of the appointing authority.
Believing that his appointment had been contractual in nature,
Ramirez sued in the RTC to declare his dismissal null and void.
The RTC rendered judgment declaring Buenaflor guilty of
unlawful termination because he had not discharged his burden
of proving that Ramirez's employment was coterminous with that
of Chairman Domingo, and ruling in favor of Ramirez.
Buenaflor seasonably filed his motion for reconsideration and
later on was denied. Buenaflor assailed the order of the RTC by
petition for certiorari in the CA, alleging that the RTC thereby
gravely abused its discretion amounting to lack or excess of
jurisdiction. Buenaflor moved for reconsideration, but the CA
denied his motion for reconsideration.
ISSUES:
1. Court of Appeals, in arriving its decision and resolution,
decided the case in accordance with law and existing
jurisprudence?
2. Court of Appeals committed grave abused of discretion in not
declaring that the RTC has no jurisdiction to hear and decide the
instant civil service related case, which is under the sole
jurisdiction of the CSC?
RULING:
1. The jurisdiction of a court over the subject matter of a
particular action is determined by the plaintiffs allegations in the
complaint and the principal relief he seeks in the light of the law
that apportions the jurisdiction of courts.
2. It is clarified that the CSC has jurisdiction over a case
involving a civil servant if it can be regarded as equivalent to a
labor dispute resoluble under the Labor Code; conversely, the
regular court has jurisdiction if the case can be decided under
the general laws, such as when the case is for the recovery of
private debts, or for the recovery of damages due to slanderous
remarks of the employer, or for malicious prosecution of the
employees.
DATOR vs CARPIO-MORALES
CSC Resolution No. 020790 clearly states the prohibition of
hiring those covered under the rules on nepotism through a
contract of service and job order. Nepotism is defined as an
appointment issued in favor of a relative within the third civil
degree of consanguinity or affinity of any of the following: (1)
appointing authority; (2) recommending authority; (3) chief of the
bureau or office; and (4) person exercising immediate
supervision over the appointee. Macandile, being the sister of
Dator, is clearly within the scope of the prohibition from being
hired under a contract of services and job order.
FACTS: The case stemmed from a complaint2 filed on May 2,
2016 by complainant Moises B. Villasenor against the
incumbent Mayor of Lucban, Quezon, petitioner Celso Olivier T.
Dator, and Maria Lyncelle D. Macandile, also of Lucban, Quezon
for grave misconduct, grave abuse of authority and nepotism. It
was alleged that in his immediately preceding term, Dator hired
his sister, Macandile, as Chief Administrative Officer through a
Job Order and designated her as Municipal Administrator. There
was no appointment paper that was submitted to the
Sangguniang Bayan for the required confirmation pursuant to
Sec. 443(d) of the Local Government Code. It was also alleged
that Macandile lacked the qualifications of a Municipal
Administrator and her Job Order stated that "the above-named
hereby attests that he/she is not related within the third degree
(fourth degree in case of LGUs) of consanguinity or affinity to
the 1) hiring authority and/or 2) representatives of the hiring
agency",when in truth and in fact, she is the sister of Dator.
In the Joint Counter-Affidavit of Dator and Macandile, they
denied the charges and stated that Macandile was merely
granted an authority to perform the duties and functions of an
administrator in the exigency and best interest of public service.
They stated that Macandile's credentials showed her
competence as she worked as a Head Nurse in Ginebra San
Miguel, Inc. from 1994 to 2005. They further alleged that the
position of Municipal Administrator did not exist in the
municipality's plantilla of personnel, hence, there was no
appointment paper submitted to the Sangguniang Bayan for
confirmation. They also countered that the position of Municipal
Administrator is primarily confidential, non-career and
coterminous with the appointing authority and that the Job Order
was executed for payroll purposes only. They submitted copies
of the Job Order forms issued during the administration of the
complainant, where a Dr. Palermo C. Salvacion was designated
as Chief Administrative Officer from 2007 to 2010.
On March 20, 2017, the Ombudsman rendered a Decision
dismissing the charges against Macandile, but finding Dator
administratively liable for Simple Misconduct. The OMB noted
that since the position of Municipal Administrator was not in the
plantilla, Dator should have requested the Sangguniang Bayan
to create the said position through an ordinance. The OMB ruled
that in the issuance of the Job Order and S.O. No. 2, Series of
2014, Dator exhibited reprehensible conduct. It also found
Dator's act of affixing his signature in the Job Order, which
contained an attestation that Macandile is not related within the
fourth degree of consanguinity to the hiring authority, despite
knowledge of its falsity, is a clear transgression of the norms and
standards expected of him as a government official.
A Motion for Reconsideration was filed by Dator. A Supplement
to the Motion for Reconsideration dated November 6, 2017 was
likewise filed by his new counsel, in collaboration with the
counsel of record. Dator also filed a Motion for Clarification,
seeking clarification as to the correct penalty imposed – whether
it is 6 months suspension or 1 month and one 1 day suspension.
Consequently, Dator filed before the CA a Petition for Injunction
with Prayer for Issuance of Preliminary Injunction and/or
Temporary Restraining Order, praying for respondents to desist
and refrain from implementing the OMB's Decision.
The CA denied the petition outright. Subsequently, the OMB
denied Dator's Motion for Reconsideration. It also clarified that
the seeming conflict in the proper penalty imposable on Dator
was due to an honest oversight in the footnote of the OMB
decision, and clarified that the penalty imposed on Dator is six
months suspension without pay.
ISSUE: Whether the OMB was correct in ruling that Dator is
liable for simple misconduct. (YES)
RULING: The OMB was correct in ruling that Dator's act of
issuing the Special Order No.2, Series of 2014 and Job Order
that hired his sister, Macandile, as Chief Administrative Officer,
was irregular. As correctly noted by the OMB, the position of a
Municipal Administrator is unique, because, while it is
coterminous with the appointing authority and highly confidential
in character, it is required that the appointee must meet the
qualifications enumerated under Sec. 480 of the LGC. The
position does not fall within the confidential/personal staff
contemplated under Section 1(e) Rule X of Revised Omnibus
Rules on Appointments and Other Personnel Actions which
dispenses with the eligibility and experience requirements.
Furthermore, the Civil Service Commission (CSC) came out with
CSC Resolution No. 020790 (Policy Guidelines for Contract of
Services) as it has been made aware that the practice of hiring
personnel under contracts of service and job orders entered into
between government agencies and individuals has been used
to circumvent Civil Service rules and regulations particularly its
mandate on merit and fitness in public service.
The situation in this case is precisely what is being prevented by
the said resolution where the appointing authority effectively
creates a short-cut or circumvents the law as regards the
determination of fitness or eligibility to a position, by merely
hiring one who would otherwise have to go through the rigorous
process mandated by the law, through a contract of service or
job order. CSC Resolution No. 020790 clearly states the
prohibition of hiring those covered under the rules on nepotism
through a contract of service and job order. Nepotism is defined
as an appointment issued in favor of a relative within the third
civil degree of consanguinity or affinity of any of the following:
(1) appointing authority; (2) recommending authority; (3) chief of
the bureau or office; and (4) person exercising immediate
supervision over the appointee. Macandile, being the sister of
Dator, is clearly within the scope of the prohibition from being
hired under a contract of services and job order.
Given the foregoing, Dator was thus properly held liable for
simple misconduct.