Case Digests on Law on Public Officers and De Facto Officers Lacson neither accepted the appointment nor assumed
pted the appointment nor assumed the office of fiscal of Tarlac.
Law on Public Officers
Sarmiento vs Mison
Facts
Petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent
Salvador Mison from performing the functions of the Office of Commissioner of the
Bureau of Customs and the respondent Guillermo Carague, as Secretary of the
Department of Budget, from effecting disbursements in payment of Mison's salaries
and emoluments, on the ground that Mison's appointment as Commissioner of the
Bureau of Customs is unconstitutional by reason of its not having been confirmed by
the Commission on Appointments. The respondents, on the other hand, maintain the
constitutionality of respondent Mison's appointment without the confirmation of the
Commission on Appointments.
Issue: Whether or not the confirmation of the Commission on Appointments is
required in appointing the head of the Bureau of Customs
Held: The Court ruled in the negative. It is readily apparent that under the provisions of
the 1987 Constitution, just quoted, there are four (4) groups of officers whom the
President shall appoint. These four (4) groups, to which we will hereafter refer from
time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise
provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in
the President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints.
In the course of the debates on the text of Section 16, there were two (2) major
changes proposed and approved by the Commission. These were (1) the exclusion of
the appointments of heads of bureaus from the requirement of confirmation by the
Commission on Appointments; and (2) the exclusion of appointments made under the
second sentence 9 of the section from the same requirement. In the 1987 Constitution,
as already pointed out, the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission on Appointments,
except appointments to offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that Congress may
by law vest the appointment of lower-ranked officers in the President alone, or in the
courts, or in the heads of departments, because the power to appoint officers whom he
(the President) may be authorized by law to appoint is already vested in the President,
without need of confirmation by the Commission on Appointments , in the second
sentence of the same Sec. 16, Article VII.
Luego vs CSC
FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor,
Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was
described as "permanent" but the Civil Service Commission approved it as
"temporary." On 22 March 1984, the Civil Service Commission found the private
respondent better qualified than the petitioner for the contested position and
accordingly directed herein private respondent in place of petitioner's position. The
private respondent was so appointed on 28 June 1984, by the new mayor; Mayor
Ronald Duterte. The petitioner is now invoking his earlier permanent appointment as
well as to question the Civil Service Commission's order and the private respondent's
title.
ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a
permanent appointment on the ground that another person is better qualified than the
appointee and, on the basis of this finding, order his replacement by the latter.
Held: The Supreme Court ruled in the negative. The Civil Service Commission is not
empowered to determine the kind or nature of the appointment extended by the
appointing officer, its authority being limited to approving or reviewing the appointment
in the light of the requirements of the Civil Service Law. When the appointee is
qualified and the other legal requirements are satisfied, the Commission has no choice
but to attest to the appointment in accordance with the Civil Service Laws. Hence, the
Civil Service Commission's resolution is set aside
Lacson vs Romero
Facts: Petitioner Lacson was on July 25, 1946, appointed by the President of the
Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the
Commission on Appointment on August 6, 1946. He took his oath of office on August
10, 1946, and thereafter performed the duties of that office.
Upon recommendation of the Secretary of Justice, on May 17, 1949, the President
nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same
date, the President nominated for the position of provincial fiscal of Negros Oriental
respondent Romero. Both nominations were simultaneously confirmed by the
Commission on Appointments on May 19, 1949.
But respondent Romero took his oath of office (the post of fiscal of Negros Oriental) in
Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter
proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental,
he notified Lacson of his intention to take over the office the following day, but Lacson
objected. Hence this petition
ISSUE: Whether or not Lacson is entitled to the position
Held : The Court ruled that:
The appointment to a government post like that of provincial fiscal to be complete
involves several steps. First, comes the nomination by the President. Then to make
that nomination valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is the acceptance thereof by
the appointee by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may or
he may not accept the appointment or nomination. As held in the case of Borromeo vs.
Mariano, 41 Phil. 327, "there is no Power in this country which can compel a man to
accept an office." Consequently, since Lacson has declined to accept his appointment
as provincial fiscal of Tarlac and no one can compel him to do so, then he continues
as provincial fiscal of Negros Oriental and no vacancy in said office was created,
unless Lacson had been lawfully removed as Such fiscal of Negros Oriental.
Costin v. Quimbo
Facts:
Petitioner Estanislao Lajer was a member of themunicipal police force of
Abuyog, Leyte since January 1, 1949. He was extended a promotional appointment as
sergeant of police on October 15, 1958. On November 25, 1959, the outgoing
municipal mayor of Abuyog accorded Lajer another promotional appointment as chief
of police. This last appointment was not attested and approved as required by law. On
January 14, 1960, the new municipal mayor dismissed Lajer and eight other members
of the police department. On the same day, the municipal mayor extended to
respondent Higinio Verra a permanent appointment as Chief of Police of Abuyog.
Verra immediately took over the position. His appointment was eventually approved as
permanent one. On January 19,1960, Lajer and eight other members of the police
force filed an action for mandamus against the municipal mayor, municipal treasurer
and the municipal council of Abuyog, contesting their separation from the service.
While the petition was pending, there was again a change in the municipal
administration, as a result of the 1963 elections. The newly elected municipal mayor
dismissed Verra. Verra was replaced by Victoriano SIlleza, officer-in-charge when
petitioner Marcial Costin was appointed as chief of police. Verra filed a case against
Costin, the municipal mayor and municipal treasurer. Lajer and other eight members of
police force was found to be illegally dismissed. Lajer was reinstated as chief of police.
Verra filed an amended petition. The respondent judge rendered a decision in favor of
the reinstatement of Verra.
Issue: Whether or not the appointment of respondent Verra appointment in the
position of Chief of Police was valid and consequently his removal therefrom illegal.
Held: The Supreme Court ruled that when respondent Verra was appointed chief
of police on January 14, 1960, Lajer had just been dismissed from office with several
other members of the police force. The validity of Verra’s appointment, therefore
hinges on the legality of Lajer’s removal. It is elementary in the law of public officers
that no person, no matter how qualified and eligible he is for a certain position, may be
appointed to an office which is not vacant. There can be no appointment to a non-
vacant position. The incumbent must first be legally removed or his appointment validly
terminated.
Monsanto v. Factoran
Facts: In a decision rendered on March 25, 1983, the Sandiganbayan convicted
petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three
other accused, of the complex crime of estafa thru falsification of public documents.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed
the same. She then filed a motion for reconsideration. By reason of said pardon,
petitioner wrote the Calbayog City treasurer requesting that she be restored to her
former post as assistant city treasurer since the same was still vacant. Petitioner's
letter-request was referred to the Ministry of Finance for resolution in view of the
provision of the Local Government Code transferring the power of appointment of
treasurers from the city governments to the said Ministry. In its 4th Indorsement dated
March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her
position without the necessity of a new appointment not earlier than the date she was
extended the absolute pardon. Her subsequent motion for reconsideration having been
denied, petitioner filed the present petition in her behalf.
Issue: Whether or not a public officer, who has been granted an absolute pardon by
the Chief Executive, is entitled to reinstatement to her former position without need of
a new appointment.
Held: The Supreme Court ruled that the plea of the petitioner for reinstatement to her
former office must be rejected. The petitioner was pardoned pending her appeal from
her conviction for an offense which carried with it the penalty of disqualification from
office. For petitioner Monsanto, this is the bottom line: the absolute disqualification or
ineligibility from public office forms part of the punishment prescribed by the Revised
Penal Code for estafa thru falsification of public documents. It is clear from the
1
authorities referred to that when her guilt and punishment were expunged by her
pardon, this particular disability was likewise removed. Henceforth, petitioner may
apply for reappointment to the office which was forfeited by reason of her conviction.
And in considering her qualifications and suitability for the public post, the facts
constituting her offense must be and should be evaluated and taken into account to
determine ultimately whether she can once again be entrusted with public funds.
Stated differently, 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.
Civil Liberties Union v. Executive Secretary
Facts: Two (2) petitions were consolidated per resolution dated August 9, 1988 1
and are being resolved jointly as both seek a declaration of the unconstitutionality of
Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987.
Petitioners maintain that this Executive Order which, in effect, allows members of the
Cabinet, their undersecretaries and assistant secretaries to hold other government
offices or positions in addition to their primary positions, albeit subject to the limitation
therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution. It is
alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No.83815 and as Annex "B" in G.R. No.
83896 from holding any other office or employment during their tenure. In addition to
seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner
Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of
the extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from holding,
in addition to their primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any salaries, allowances, per
diems and other forms of privileges and the like appurtenant to their questioned
positions, and compelling public respondents to return, reimburse or refund any and all
amounts or benefits that they may have received from such positions. Specifically,
petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of
1987, declaring that Cabinet members, their deputies (undersecretaries) and assistant
secretaries may hold other public office, including membership in the boards of
government corporations: (a) when directly provided for in the Constitution as in the
case of the Secretary of Justice who is made an ex-officio member of the Judicial and
Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on the basis of
this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before
Congress convened on July 27, 1987: promulgated Executive Order No. 284.Petitioner
Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive
Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB.
Issue: Whether or not Executive Order No.284 was unconstitutional.
Held: On the strength of the foregoing constitutional provision, the Supreme
Court declared as unconstitutional Executive Order No. 284 which, in effect, allowed
Cabinet members, their undersecretaries and assistant secretaries and other
appointive officials of the Executive Department to hold other positions in the
government albeit subject to the limitations imposed therein.
Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head’s ability and expertise, he should be
allowed to attend his duties and responsibilities without the distraction of other
government offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which may
result in haphazardness and inefficiency. Surely the advantages to be derived from
this concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in more than
what he can handle.
LABO v. COMELEC
G.R. No. 86564 . August 1, 1989
FACTS: Ramon Labo asked the Court to restrain the Commission on Elections from
looking into the question of his citizenship as a qualification for his office as Mayor of
Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue
is whether or not the public respondent has jurisdiction to conduct any inquiry into this
matter, considering that the petition for quo warranto against him was not filed on time.
ISSUE: Whether or not Ramon Labo was a citizen of the Philippines at the time of his
election on 18 January 1988, as mayor of Baguio City.
HELD: The Court ruled that the petitioner is not now, nor was he on the day of the
local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not
even a qualified voter under the Constitution itself because of his alienage. He was
therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the
Local Government Code providing in material part as follows:
Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines,
at least twenty-three years of age on election day, a qualified voter registered as such
in the barangay, municipality, city or province where he proposes to be elected, a
resident therein for at least one year at the time of the filing of his certificate of
candidacy, and able to read and write English, Filipino, or any other local language or
dialect.
The petitioner argues that his alleged lack of citizenship is a "futile
technicality" that should not frustrate the will of the electorate of Baguio City, who
elected him by a "resonant and thunderous majority." To be accurate, it was not as
loud as all that, for his lead over the second-placer was only about 2,100 votes. In any
event, the people of that locality could not have, even unanimously, changed the
requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or
at least a stateless individual owing no allegiance to the Republic of the Philippines, to
preside over them as mayor of their city. Only citizens of the Philippines have that
privilege over their countrymen.
It remains to stress that the citizen of the Philippines must take pride in
his status as such and cherish this priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant him. Having been so endowed, he must not
lightly yield this precious advantage, rejecting it for another land that may offer him
material and other attractions that he may not find in his own country. To be sure, he
has the right to renounce the Philippines if he sees fit and transfer his allegiance to a
state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he
is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after its
renunciation. It may be restored only after the returning renegade makes a formal act
of re-dedication to the country he has abjured and he solemnly affirms once again his
total and exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by election to public office.
The Court held that petitioner Ramon J. Labo, Jr. is not a citizen of the
Philippines and therefore disqualified from continuing to serve as Mayor of Baguio
City. He is ordered to vacate his office and surrender the same to the Vice-Mayor of
Baguio City, once this decision becomes final and executory. The temporary
restraining order dated January 31, 1989, is lifted.
YEE v. DIRECTOR OF PUBLIC SCHOOLS
No. L-16924, April 29, 1963
FACTS: An appeal from a judgment rendered by the Court of First Instance of Antique,
declaring illegal and contrary to law the removal of the petitioner from her position as
school teacher in the Division of Antique on October 28, 1957, and ordering the
respondents to reinstate the petitioner forthwith to her former position, with all the
privileges appurtenant thereto, and to cause to be paid her salary of P140.00 a month
from November 1, 1957 until the date of her reinstatement, without pronouncement as
to costs.
The petitioner was a public school teacher and had been appointed as
such teacher in the Division of Antique in 1951; A civil service eligible as a regular
national teacher having passed the Junior Teachers' (Regular) Examination that was
given on or about December 29, 1955. In the school year 1957-1958 the petitioner was
actually teaching in the Buhang Elementary School, Buhang Hamtic, Antique; Having
married Mr. Ng Foo alias Pio Chet Yee, a Chinese citizen, on August 10, 1957 is
presently a Chinese citizen; That effective sometime on October 28, 1957 the
petitioner was removed from her teaching service by virtue of Special Order No. 296,
series of 1957, dated October 25, 1957, issued by the Division Superintendent of
Schools of Antique and this was pursuant to the 2nd indorsement of the Director of
Public Schools dated October 14, 1957, disauthorizing the continuance in the service
of the petitioner on account of Circular No. 40, series of 1947; That prior to the
effectivity of the order of removal the petitioner wrote a letter to the Commissioner of
Civil Service dated October 25, 1957 hereto attached as; That petitioner wrote another
letter dated September 26, 1958 addressed to the Division Superintendent of Schools
of Antique asking for reinstatement; That Special Order No. 296 of the Division
Superintendent of Schools of Antique the ruling of the Director of Public Schools in his
2nd indorsement dated October 14, 1957, and Circular No. 40, series of 1947 had
never been appealed by the petitioner to the Secretary of Education; That when this
case was filed sometime on October 11, 1958, the original respondents were only the
Director of Public Schools and the Division Superintendent of Schools of Antique; That
the petitioner came to know for the first time of the actions taken on her letter of
October 25, 1957 herein, sometime on January 9, 1959 when the respondents Division
Superintendent of Schools and the Director of Public Schools submitted their evidence
in support of their motion to dismiss and which documents are hereto attached wherein
it appears that the Secretary of Education in its 3rd indorsement dated March 17, 1958
concurs with the recommendation of the Director of Public Schools for denial of the
reinstatement of the petitioner to the service and that on August 26, 1958, in its 4th
indorsement the Commissioner of Civil Service likewise concurs in the action
separating Mrs. Antonio A. Yee from the teaching service.
ISSUE: Whether or not Yee is qualified as a teacher, under a public function which
may be performed by Filipino citizens only.
HELD: The Court ruled that there is no doubt that her removal as a public school
teacher because of loss of Filipino citizenship is legal. Not being included in section
671 of the Revised Administrative Code which enumerates the officers and employees
constituting the unclassified service, teaching in a public school is in the classified
service — a public function which may be performed by Filipino citizens only. An
2
applicant for admission to examination for entrance into the civil service must be a
citizen of the Philippines (section 675 of the Revised Administrative Code). And after
he had qualified himself to be eligible for appointment to a civil service position and
had been appointed to such position, he must continue to be such citizen. A voluntary
change of citizenship or a change thereof by operation of law disqualifies him to
continue holding the civil service position to which he had qualified and had been
appointed. Such being the case, upon the appellee's marriage on 10 August 1957 to
Ng Foo alias Pio Chet Yee, a Chinese citizen, the appellee ceased to be a citizen of
the Philippines, and for that reason she is no longer qualified to continue holding the
civil service position to which she had qualified and had been appointed.
Section 681 of the Revised Administrative Code which provides that —
In making selection from lists of certified eligibles furnished by the Commissioner,
appointing officer shall, when other qualifications are equal, prefer:
First. Citizens of the Philippines.
Second. Honorably discharged soldiers, sailors, and mariners of the United States,
is no argument against the limitation of holding public offices to citizens of the
Philippines. The preference provided for in the section quoted above was operative
during the period before 4 July 1946 or before the Philippines became an independent
nation.
IN VIEW OF THE CONCLUSION ARRIVED AT, the point of exhaustion
of administrative remedy need not be passed upon.
The judgment appealed from is reversed and petition denied, without
pronouncement as to costs in both instances.
LAUREL v. DESIERTO
G.R. No. 145368, April 12, 2002
FACTS: President Aquino issued Administrative Order No. 223 "constituting a
Committee for the preparation of the National Centennial Celebration in 1998." The
Committee was mandated "to take charge of the nationwide preparations for the
National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.”
President Ramos issued Executive Order No. 128, "reconstituting the
Committee for the preparation of the National Centennial Celebrations in 1988." It
renamed the Committee as the "National Centennial Commission." Appointed Vice-
President Laurel as chair. Its duty is to "take charge of the nationwide preparations for
the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress and its existence shall
terminate upon the completion of all activities related to the Centennial Celebrations.
A corporation named the Philippine Centennial Expo ’98 Corporation
(Expocorp) was created. Laurel was among the nine (9) Expocorp incorporators and
was elected Expocorp Chief Executive Officer.
Senator Coseteng delivered a privilege speech denouncing alleged
anomalies in the construction and operation of the Centennial Exposition Project at the
Clark Special Economic Zone. The privilege speech was referred to the Blue Ribbon
Committee for investigation.
President Estrada issued Administrative Order No. 35, creating an ad hoc and
independent citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects. Senator Saguisag was appointed to
chair the Committee.
Blue Ribbon Committee filed its report. recommending the prosecution by
the Ombudsman/DOJ of Laurel, chair of NCC and of EXPOCORP for violating the
rules on public bidding, relative to the award of centennial contracts to AK (Asia
Construction & Development Corp.); for exhibiting manifest bias in the issuance of the
NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the
absence of a valid contract that has caused material injury to government and for
participating in the scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in violation… of the anti-
graft law.
The Saguisag Committee issued its own report. It recommended the
further investigation by the Ombudsman, and indictment, in proper cases of, Laurel for
violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of
R.A. No. 6713, and Article 217 of the Revised Penal Code.
The Bureau of the Office of the Ombudsman. issued its Evaluation
Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman
against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP
President Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec.
3(e) and (g) of R.A. No.3019, as amended in relation to PD 1594 and COA Rules and
Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.
Apostol, OIC-Director of the EPIB, directed Laurel to submit his counter-
affidavit and those of his witnesses. Laurel filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office. Ombudsman denied
motion to dismiss. EPIB found probable cause to indict respondents LAUREL and
PEÑA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act
No. 3019, in relation to Republic Act No. 1594. Desierto, in his capacity as
Ombudsman, approved the resolution with respect to Laurel but dismissed the charge
against Peña. Laurel moved for a reconsideration but the motion was denied. Hence
this present petition for certiorari.
ISSUE: (1) Whether or not Ombudsman has jurisdiction over the case.
(2) Whether or EXPOCORP is a private corporation and not a GOCC.
(3) Whether or not NCC was not a public office.
(4) Whether or not Laurel is not a public officer.
HELD: (1) The Court ruled that the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. Neither the Constitution nor the
Ombudsman Act of 1989, however, defines who public officers are. A definition of
public officers cited in jurisprudence 13 is that provided by Mechem, a recognized
authority on the subject: a public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed bylaw or enduring at the
pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the
public. The individual so invested is a public officer.
The characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by contract, an oath,
salary, continuance of the position, scope of duties, and the designation of the position
as an office.
The Court hold that the NCC performs executive functions. The executive
power "is generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance." The executive function, therefore, concerns the implementation of the
policies as set forth by law.
(2) The NCC was precisely created to ensure a more coordinated and
synchronized celebration of the Philippine Centennial and wider participation form the
government and non-government or private organizations and to rationalize the
relevance of historical links with other countries and to carry them into effect. E.O. No.
128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the "need to strengthen the said Committee to ensure a more
coordinated and synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or private organizations." It
also referred to the "need to rationalize the relevance of historical links with other
countries."
(3) and (4) There can hardly be any dispute that the promotion of
industrialization and full employment is a fundamental state policy. Clearly, the NCC
performs sovereign functions. It is, therefore, a public office, and petitioner, as its
Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary criterion for
determining the nature of the position. It is not conclusive. The salary is a mere
incident and forms no part of the office. Where a salary or fees is annexed, the office is
provided for it is a naked or honorary office, and is supposed to be accepted merely for
the public good. Hence, the office of petitioner as NCC Chair may be characterized as
an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to
which salary, compensation or fees are attached. But it is a public office, nonetheless.
The Court dismissed the petition.
De Facto Officers
Tayko vs Capistrano
Facts: The petitioners allege that the respondent judge, previous to this date, was
appointed judge of the Court of First Instance of Oriental Negros, to hold office during
good behavior and until he should reach the age of 65 years; that he now has reached
that age and, therefore, under the provisions of section 148 of the Administrative Code
as amended, is disqualified from acting as a judge of the Court of First Instance.
The petitioners further allege that in view of the many election protests and criminal
cases for violation of the election law filed in the Court of First Instance of Oriental
Negros arising in the Court of First Instance of Oriental Negros arising from the last
election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and
acted as auxiliary judge of the Province of Oriental Negros; that between the auxiliary
judge and the respondent judge herein there was an understanding, and the
assignment of the said auxiliary judge was made with this understanding, that the said
auxiliary judge so designated would hear and take cognizance of all election protests
and criminal actions then pending or to filed arising from the said last general election,
and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary
cases pending in the said court, but, notwithstanding this understanding or agreement,
the respondent judge tried and is still trying to take cognizance of the election protests
an criminal actions in said court; that said respondent is neither a judge de jure nor de
facto, but that, notwithstanding this fact, he continues to hold the office of judge of the
Court of First Instance of Oriental Negros and pretends to be duly qualified and acting
judge of the said province; and that he has tried, and continues to try, to act as such
judge and that there is reasonable ground to believe that he will take cognizance of the
cases in question unless he be restrained by order of this court.
Issue: Whether or not the respondent judge is a de facto judge
Held: The court ruled that the respondent is a de facto judge
Briefly defined, a de facto judge is one who exercises the duties of a judicial office
under color of an appointment or election thereto. He differs, on the one hand, from a
mere usurper who undertakes to act officially without any color of right, and on the
3
other hand, from a judge de jure who is in all respects legally appointed and qualified
and whose term of office has not expired.
Apart from any constitutional or statutory regulation on the subject there seems to be a
general rule of law that an incumbent of an office will hold over after the conclusion of
his term until the election and qualification of a successor. When a judge in good faith
remains in office after his title has ended, he is a de facto officer.
Applying the principles stated to the facts set forth in the petition before us, we cannot
escape the conclusion that, on the assumption that said facts are true, the respondent
judge must be considered a judge de facto. His term of office may have expired, but
his successor has not been appointed, and as good faith is presumed, he must be
regarded as holding over in good faith. The contention of counsel for the petitioners
that the auxiliary judge present in the district must be considered the regular judge
seems obviously erroneous.
In these circumstances the remedy prayed for cannot be granted. "The rightful
authority of a judge, in the full exercise of his public judicial function, cannot be
questioned by any merely private suitor, nor by any other, excepting in the form
especially provided by law. A judge de facto assumes the exercise of a part of the
prerogative of sovereignty, and the legality of that assumption is open to the attack of
the sovereign power alone. Accordingly, it is a well established principle, dating from
the earliest period and repeatedly confirmed by an unbroken current of decisions, that
the official acts of a de facto judge are just as valid for all purposes as those of a de
jure judge, so far as the public or third persons who are interested therein are
concerned.
Rodriguez vs Tan
Facts: Plaintiff claims that on December 30, 1947, defendant usurped the office of
Senator of the Philippines, and from that date until December 1949, he continously
collected the salaries, emoluments and privileges attendant to that office amounting to
P18,400; that protest having been filed by plaintiff against defendant, the Senate
Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to
have been duly elected to the office; and that by reason of such usurpation, plaintiff
suffered damages in the amount of P35,524.55 for expenses he incurred in
prosecuting the protest. Plaintiff claims that, as defendant was found and by final
judgment not to have been entitled to the office of Senator, and, as such, he was
during the time he discharged that office a mere de facto officer, he should reimbursed
to the plaintiff the salaries and emoluments he has received on the following grounds;
(1) because the salaries and emoluments follow and are inseparable from legal title to
the office and do not depend on whether the duties of the office are discharged or not;
and (2) because such a rule tends to curb election frauds and lessens the danger and
frequency of usurpation or instrusion into the office.
Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound
and plausible cannot be invoked in the present case, since it runs counter to the
principle and rule long observed in this jurisdiction to the effect that one who has been
elected to an office, and has been proclaimed by the corresponding authority, has a
right to assume the office and discharge its functions notwithstanding the protest filed
against his election, and as a necessary consequence he has likewise the right to
collect and received the salaries and emoluments thereunto appertaining as a
compensation for the salaries he has rendered.
ISSUE : whether defendant, who has been proclaimed, took the oath of office, and
discharged the duties of Senator, can be ordered to reimburse the salaries and
emoluments he has received during his incumbency to the plaintiff who has been
legally declared elected by the Senate Electoral Tribunal
The Court upheld the point of view of the defendant. There is no question that the
defendant acted as a de facto officer during the time he held the office of Senator. He
was one of the candidates of the Liberal Party in the elections of November 11, 1947,
and was proclaimed as one of those who had been elected by the Commission on
Elections, and thereafter he took the oath of office and immediately entered into the
performance of the duties of the position. Having been thus duly proclaimed as
Senator and having assumed office as required by law, it cannot be disputed that
defendant is entitled to the compensation, emoluments and allowances which our
Constitution provides for the position (article VI, section 14). This is as it should be.
This is in keeping with the ordinary course of events. This is simple justice. The
emolument must go to the person who rendered service unless the contrary is
provided. There is no averment in the complaint that he is linked with any irregularity
vitiating his election. This is the policy and the rule that has been followed consistently
in this jurisdiction in connection with the provisions held by persons who had been
elected thereto but were later ousted as a result of an election protest. The right of the
persons elected to compensation during their incumbency has always been
recognized. We cannot recall of any precedent wherein the contrary rule has been
upheld.
REGALA v. COURT OF FIRST INSTANCE OF BATAAN
No. L-781, November 29, 1946
A de facto officer is one who is in possession of the office and is discharging its duties
under color of authority, and by color of authority is meant that derived from an election
or appointment, however irregular or informal, so that the incumbent is not a mere
volunteer. If a person appointed to an office is subsequently declared ineligible
therefor, his presumably valid appointment will give him color of title that will confer on
him the status of a de facto officer.
N.B.: Di ko mahanap yung English translation ng case na ‘to. Ito lang yung nahanap ko
na importante. Sensya na. Try ko ulit hanapin. :D
Solis v. CA
**Pasensya na, mali ‘yung nahanap kong case sa net. Kaya eto na lang ang nilagay
ko, parphrase galing sa book: =)
Issue: Whether or not a decision is void if promulgated after the judge who
rendered it had permanently ceased to be judge of the court where he sat in judgment
is void.
Held: The Supreme Court declared the judgment void, “for it is now firmly
established in our jurisprudence that a decision is void if promulgated after the judge
who rendered it had permanently ceased to be judge of the court where he sat in
judgment.” To the argument that he should be considered a de facto judge, Justice
J.B.L. Reyes said: “The main ground upon which the Court of Appeals held the
contested judgment of the Court of First Instance to be valid is that ‘since the approval
of Republic Act 1186, effective 20 June 1954, was not yet publicly ore generally known
on 21 June 1954, Judge Leuterio should be considered as a judge de facto of said
court and the promulgation of his appealed decision on said date is valid and legally
effective.” This is a misapplication of the doctrine laid down in the very case cited by
the Court of Appeals.
MONROY v. COURT OF APPEALS
No. L-23258 . July 1, 1967
FACTS: Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when
on September 15, 1961, his certificate of candidacy as representative of the first
district of Rizal in the forthcoming elections was filed with the Commission on
Elections. Three days later, or on September 18, 1961, petitioner filed a letter
withdrawing said certificate of candidacy. The Commission on Elections, per
resolution, approved the withdrawal. But on September 21, 1961, respondent Felipe
del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor
on the theory that petitioner had forfeited the said office upon his filing of the certificate
of candidacy in question.
Upon these facts, the Court of First Instance of Rizal, held in the suit for
injunction instituted by petitioner against respondents that (a) the former had ceased to
be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September
15, 1961; (b) respondent del Rosario became municipal mayor upon his having
assumed office as such on September 21, 1961; (c) petitioner must reimburse, as
actual damages, the salaries to which respondent was entitled as Mayor from
September 21, 1961 up to the time he can reassume said office; and (d) petitioner
must pay respondent P1,000.00 as moral damages.
This judgment was, on appeal by petitioner to the Court of Appeals,
affirmed in toto  except for the award of moral damages which was eliminated. The
same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence,
this petition for certiorari to review the ruling of the Court of Appeals.
The present case for injunction and quo warranto involves the forfeiture
of the office of municipal mayor by the incumbent occupant thereof and the claim to
that office by the vice-mayor because of the operation of Sec. 27 of the Rev. Election
Code. The established precedent invoked in the Rodriguez case cannot therefore be
applied in this case.
ISSUE: Whether or not a rightful incumbent may recover salary received by the de
facto officer.
HELD: The Court ruled that it is the general rule then, i.e., "that the rightful incumbent
of a public office may recover from an officer de facto the salary received by the latter
during the time of his wrongful tenure, even though he entered into the office in good
faith and under color of title" that applies in the present case. The resulting hardship
occasioned by the operation of this rule to the de facto officer who did actual work is
recognized; but it is far more cogently acknowledged that the de facto doctrine has
been formulated, not for the protection of the de facto officer principally, but rather for
the protection of the public and individuals who get involved in the official acts of
persons discharging the duties of an office without being lawful officers. The question
of compensation involves different principles and concepts however. Here, it is
possession of title, not of the office, that is decisive. A de facto officer, not having good
title, takes the salaries at his risk and must therefore account to the de jure officer for
whatever amount of salary he received during the period of his wrongful retention of
the public office.
Wherefore, finding no error in the judgment appealed from, the same is,
as it is hereby, affirmed in toto. Costs against petitioner.
Menzon v. Petilla
Facts: On February 16, 1988, by virtue of the fact that no Governor had been
proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos
designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On
March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the
Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as
the Vice-Governor for the province of Leyte. The petitioner took his oath of office. On
May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to
the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In
his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that
since B.P. 337 has no provision relating to succession in the Office of the Vice-
Governor in case of a temporary vacancy, the appointment of the petitioner as the
temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily
performing the functions of the Governor, could concurrently assume the functions of
4
both offices. The Sangguniang Panlalawigan, in a special session held on July 7,
1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner
as acting Vice-Governor of Leyte.
Issue: Whether or not s de facto officer has a right to emoluments while
discharging the duties of office of Vice-Governor.
Held: The Supreme Court , in sustaining a de facto officer’s right to
emoluments while actually discharging the duties of the office of Vice-Governor,
declared “In view of the foregoing, the petitioner's right to be paid the salary attached
to the Office of the Vice Governor is indubitable. There is no denying that the petitioner
assumed the Office of the Vice-Governor under color of a known appointment. As
revealed by the records, the petitioner was appointed by no less than the alter ego of
the President, the Secretary of Local Government, after which he took his oath of
office before Senator Alberto Romulo in the Office of Department of Local Government
Regional Director Res Salvatierra. Concededly, the appointment has the color of
validity. The respondents themselves acknowledged the validity of the petitioner's
appointment and dealt with him as such. It was only when the controversial Resolution
No. 505 was passed by the same persons who recognized him as the acting Vice-
Governor that the validity of the appointment of the petitioner was made an issue and
the recognition withdrawn. The petitioner exercised the duties attached to the Office of
the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the
principle of public policy on which the de facto doctrine is based and basic
considerations of justice, it would be highly iniquitous to now deny him the salary due
him for the services he actually rendered as the acting Vice-Governor of the province
of Leyte
CASE TITLE: JUCO vs. NATIONAL LABOR RELATIONS COMMISSION
GR NO: G.R. No. 98107
YEAR: 1997 ISSUE/TOPIC: CSC, jurisdiction over corporations
Petitioner Benjamin Juco worked as a project engineer of respondent National
Housing Corporation (NHC). He was separated from service for having been
implicated in a crime of theft and/or malversation of public funds.
On March 25, 1977, petitioner filed a complaint for illegal dismissal against NHC
with the Department of Labor. It was dismissed on the ground that the NLRC had
no jurisdiction over the case. Upon appeal to the the NLRC, the NLRC reversed
the Labor Arbiter’s dismissal. NHC then appealed before the Supreme Court
(SC) and on January 17, 1985, the SC set aside the NLRC’s decision thereby
reinstating the Labor Arbiter’s dismissal.
On January 6, 1989, petitioner filed with the Civil Service Commission (CSC) a
complaint for illegal dismissal with preliminary mandatory injunction. Upon motion
to dismiss by NHC on the ground of the CSC’s lack of jurisdiction over the
dispute, the CSC dismissed the complaint. The dismissal was grounded on
Article IX, Sec. 2 (1) of the 1987 Constitution, which provides that “The civil
service embraces all branches, subdivision, instrumentalities and agencies of the
Government, including government owned andcontrolled corporations with
original charters.” (italics supplied) Considering that NHC was a GOCC without
an original charter, it being created under the Corporation Law, the CSC
dismissed the complaint.
On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal
dismissal with preliminary mandatory injunction against private respondent NHC.
Labor Arbiter Caday ruled in his favor as there was evidence that the criminal
case against petitioner was fabricated and therefore there was no basis – legal or
factual – for his dismissal.
On appeal by NHC, the NLRC reversed the Arbiter Caday on the ground of lack
of jurisdiction.
ISSUE: Whether or not petitioner’s case is governed by the Labor Code
HELD: Yes, it is governed by the Labor Code. NLRC’s dismissal reversed.
At the time petitioner filed his first complaint, jurisdiction over GOCCS was
indeed with the CSC, as provided for in Art. 277 of the Labor Code (PD 442),
which is the same as Art. II-B, sec. 1(1) of the 1973 Constitution. However, when
the 1987 Constitution took effect, the jurisdiction of the CSC had been limited
only to GOCCs with an original charter. Since the NHC was created under the
former Corporation Law, under the present Constitution, it would be governed by
the Labor Code.
MATURAN VS. MAGLANA
113 SCRA 268
FACTS:
1. Petitioner Tereso Maturan was appointed as patrolman of San Francisco,
Southern Leyte.
2. He was promoted to the rank of police sergeant .
3. The appointments of petitioner were provisional.
4. His provision appointments were renewed.
5. Respondent Mayor Santiago Maglana suspended petitioner from office
because of two pending criminal case against him.
6. Respondent Vice-Mayor, then the acting Mayor, instructed petitioner to tender
his resignation pursuant to Letter of Instruction No. 14 of the President of the
Philippines
7. Petitioner tendered his letter of resignation and was approved three months
later.
8. Petitioner sought the reconsideration of the approval of his resignation for
being null and void on the ground that LOI No. 14 does not apply to him.
9. In the meantime, the two criminal cases were dismissed.
10. Hon. Juan Ponce Enrile then Acting Chairman of the National Police
Commission informed petitioner of the dismissal of the criminal cases, and the
preventive suspension has been lifted, and petitioner was directed to report for
duty to his Chief of Police.
11. Petitioner reported for duty but Chief of Police Francisco Duterte refused to
accept the former in the police force.
12. Respondent Mayor sent a letter to the Chairman of the National Police
Commission requesting advice as to whether the resignation tendered by
petitioner was valid.
13. The Deputy Executive Commissioner stated that since petitioner resigned
from office, the lifting of his suspension is no longer feasible, the same having
been rendered moot and academic.
14. Petitioner filed a Petition for Mandamus with claim for backsalaries, travelling
expenses and damages.
15. He alleged that the refusal of respondent’s Mayor and Chief of Police to
reinstate him is a violation of Par. 7 of Presidential Decree No. 12-A which
provides:” Members of the police force who have been preventively suspended
shall, upon examination be entitled to immediate reinstatement and payment of
the entire salary they failed to receive during the period of suspension.”
16. Respondent court dismissed the petition for lack of merit.
17. The court a quo agreed with the opinion of the National Police Commission
that resignation submitted by the police force in compliance with the provisions of
LOI No. 14 are valid.
18. Lastly, the trial court ruled that since all petitioner’s appointment were
provisional, he can be removed at any time by the appointing power.
ISSUE:Should petitioner be reinstated?
HELD:Petitioner did not dispute that at the time he was appointed member of the
Police Force of San Francisco, Southern Leyte, he had neither qualified in an
appropriate examination for the position of policeman nor was he possessed with
any civil service eligibility for any position in the government. Such lack of civil
service eligibility makes his appointment temporary and without a definite term
and is dependent entirely upon the pleasure of the appointing power.
Th fact that petitioner subsequently obtained a testimonial eligibility is of no
moment. At the time he received his appointment, petitioner had no eligibility. As
such what is required is a new appointment, not merely reinstatement. But even
then, he cannot compel the Mayor to re-appoint him for the power to appoint is in
essence discretionary and the appointment power enjoys sufficient discretion to
select and appoint employees on the basis of their fitness to perform the duties
and assume the responsibilities of the position filled.
Corpus vs. Cuaderno, Sr.
GR No. L-17860, March 30, 1962
De Leon, J.
FACTS:
Petitioner was holding the position of Special Assistant to the Governor of the Central
Bank. He was charged in an administrative case resulting in his suspension by the
Monetary Board and the creation of a three-man committee to investigate him. After
conducting hearings, the committee recommended petitioner’s reinstatement. The
Monetary Board, however, adopted a resolution stating that petitioner is deemed
resigned as of the date of his suspension. Subsequently, respondent Mariano Marcos
was appointed to replace petitioner. Petitioner then filed a petition for certiorari,
mandamus and quo warranto. After several hearings, the court dismissed the petition
on the ground that petitioner did not exhaust all administrative remedies. Petitioner
filed a motion for reconsideration but was denied.
ISSUE: Whether or not petitioner should have exhausted all administrative remedies
HELD: NO. The doctrine of administrative remedies does not apply where, by the
terms or implications of the statute authorizing an administrative remedy, such remedy
is permissive only, warranting the conclusion that the legislative intended to allow the
judicial remedy even though the administrative remedy has not been exhausted.
G.R. No. L-29661               May 13, 1969
BASILIO M. PINEDA, as Deputy Chief of Police of Pasay City, petitioner, vs.
JOVITO O. CLAUDIO, as Mayor of Pasay City; FRANCISCO A. VILLA and
ABELARDO SUBIDO, as Commissioner of Civil Service, respondents.
          This is a petition for mandamus to compel the respondent Jovito O.
Claudio, mayor of Pasay City, to appoint the petitioner Basilio M. Pineda chief of
police of the city, on the theory that, as the incumbent deputy chief of police and
therefore the officer next in rank, the petitioner is legally entitled to be promoted
to the said position.
5
          Upon the death of Col. Mariano Tumaliuan on August 28, 1968, the
position of chief of police of Pasay City became vacant. To fill the vacancy,
Claudio appointed the respondent Francisco Villa, a state prosecutor in the
Department of Justice, but the respondent Commissioner of Civil Service
Abelardo Subido held the appointment in abeyance until other persons who, in
Subido's opinion, had preferential right to appointment have been considered.
One of these persons is Pineda who, as deputy chief of police, "is a person next
in rank entitled to promotional preference for the position of Chief of Police ...
before others may be considered (for) transfer, reinstatement, reemployment or
certification."
          Subido defined his stand in his letter to Mayor Claudio of September 17,
1968, the text of which reads:
Sir:
  This refers to the proposed appointment of Mr. FRANCISCO A. VILLA, a Bar
(RA 1080) and second grade eligible, as Chief of Police in the Police Department
of Pasay City at P12,000 per annum effective September 1, 1968, vice Mariano
Tumaliuan, deceased.
Section 4 of Republic Act No. 5185 (Decentralization Act of 1967) in its
paragraphs 4 and 5 provides:
In cases of vacancies in the offices of heads and assistant heads of local
offices, the governor or mayor shall fill them by appointment from a list of the five
next ranking eligible and qualified persons as certified by the Civil Service
Commission: Provided, That these five persons shall have stated beforehand
that they will assume the position, if appointed. (paragraph 4)
          The ranking shall be based on such factors as class of province, city or
municipality where the vacancy occurs, seniority, efficiency rating, extraordinary
qualifications, and other supplementary criteria as may be prescribed by the Civil
Service Commission.lawphil.ñet
          Paragraph 3, Section 23 of Rep. Act 2260, also provides:
          Whenever a vacancy occurs in any competitive or classified position in the
government or in any government-owned or controlled corporation or entity, the
officer or employee next in rank who is competent and qualified to hold the
position and who possesses an appropriate civil service eligibility shall be
promoted thereto: Provided, That should there be two or more persons under
equal circumstances, seniority shall be given preference. And provided, however,
That should there be any special reason or reasons why such officer or
employee should not be promoted, such special reason or reasons shall be
stated in writing by the appointing official and the officer or employee concerned
shall be informed thereof and be given an opportunity to be heard by the
Commissioner of Civil Service, whose decision in such cases shall be final. If the
vacancy is not filled by promotion as provided herein, then the same shall be
filled by transfer of present employees in the government service, by
reinstatement, by reemployment of persons separated through reduction in force,
or by certification from appropriate register of eligibles in accordance with rules
promulgated in pursuance of this Act.
          Interpreting this latter provision in the case of Millares vs. Subido, et al.,
G.R. No. L-23281, August 10, 1967, the Honorable Supreme Court ruled: 'In
other words, a vacant position (be it new or created by the cessation of an
incumbent in office), shall be filled by promotion of the ranking officer or
employee, who is competent and qualified to hold the same. And only where, for
special reason or reasons of which the affected officer or employee will be
notified, this mode of recruitment or selection cannot be observed, that the
position may be filled either by transfer, or reemployment, or by getting from the
certified list of appropriate eligibles, in that order.' (Emphasis by the Court).
          The above-quoted provisions and Supreme Court ruling spell out
categorically the priorities in the modes of filling a vacancy in the competitive
service, to wit: first priority is by promotion of next in rank employees from within
the agency, second is by transfer of employees in other agencies, third is by
reinstatement and reemployment of former employees, and last by certification
from the appropriate eligible lists.
          Conformably with these provisions and ruling, this Office announced in the
Manila Times of September 5, 1968, the mode of filling vacancies for Chief of
Police for Manila and Pasay City and the qualifications of those who may
apply.1awphil.ñet A Xerox copy of the clippings of the Manila Times is hereto
attached as Annex 'A'. The said announcement was also the subject of a news
item published in the same issue of the Manila Times, a copy attached as Annex
          As of this writing, the following persons, in the order of priority, are hereby
certified for the said position:
A. Promotion (next-in-rank)
          1. Basilio Pineda — formerly chief of police of the Pasay City Police
Department, a chief of police eligible, and presently Deputy Chief of Police of the
Pasay City Police Department.
B. Transfer
          1. Major Jesus Dizon — a Xerox copy of his curriculum vitae is attached.
          2. Albino S. Mondares — a Xerox copy of his curriculum vitae is attached.
C. Reinstatement/Reemployment
          1. Jaime Valencia — formerly chief of police of Pasay City Police
Department whose appointment was bypassed. His information sheet is on file in
that Office.
D. Certification
          1. Roland C. Siquijor — (Chief of Police eligible.)
          2. Abelardo Tesoro — (Chief of Police eligible.)
          3. Francisco Villa — the proposed appointee.
          It is significant to note in this connection that Mr. Basilio Pineda, who is
presently the Deputy Chief of Police of Pasay City, a Chief of Police eligible and
formerly the Chief of Police of Pasay City, is a person next in rank entitled to
promotional preference for the position of Chief of Police. Under the law and
Supreme Court ruling above cited, Mr. Pineda should be considered for
promotion before others may be considered by transfer, reinstatement,
reemployment, or certification.
          As a matter of fact this Office in a letter dated August 5, 1968, and
reiterated in a 1st endorsement dated August 28, 1968, has previously directed
that Office to consider Mr. Pineda for designation as the Acting Chief of Police in
place of Mr. Francisco Grape, who does not possess the appropriate eligibility
and who is holding on to the position of Deputy Chief of Police by virtue of a
preliminary writ of injunction issued by the CFI of Rizal. Information is requested
as to the reason why the directive of this Office contained in the said
communication has not been complied with.
          If Mr. Pineda may not be considered, the special reason or reasons
therefor must be stated in writing and submitted to this Office. The same
procedure should also be followed if Messrs. Dizon, Mondares and Valencia may
not be considered for the said position before Messrs. Siquijor, Tesoro and Villa
may be considered for appointment thereto.
          Premises considered, the processing of the proposed appointment of Mr.
Francisco Villa is held in abeyance until after the persons with appointment
preference have been duly considered by that Office, and for special reason or
reasons, could not be appointed Chief of Police. In the meantime, the directive of
the Office contained in the letter dated August 5, 1968 should be complied with
by that Office.
          In reply, Claudio for the first time disclosed his reasons for not appointing
Pineda to the vacant position. In his letter to Subido on September 20, he
explained: .
          As a native of Pasay and having been an official hereof for the past eight
(8) years I am fully cognizant of the performance in office of Messrs. Basilio
Pineda, Jaime Valencia, Roland C. Siquijor and Abelardo Tesoro and they
cannot boast of any improvement they have introduced to lift the sagging
inefficiency of the local police organization. The actual members of untrained and
undisciplined men still persist.
          On September 30, 1968 the Secretary of Justice, to whom the matter had
earlier been referred, submitted a memorandum to the President substantially to
the effect that section 23 of the Civil Service Act of 1959 does not apply in the
case of the chief of a police agency whose appointment, it was contended, is
governed by the Police Act of 1966. Pertinent excerpts from the said
memorandum are hereunder quoted:
3. Under the Police Act, ... it is specifically provided (in section 17) that in case of
permanent vacancy caused by death, etc., in a local police agency, "the mayor
shall fill such vacancy as provided in this Act" and not in accordance with the
Civil Service Act and rules and regulations. Congress is presumed to be aware of
certain rules or limitations in the general civil service law which operate to restrict
or curtail the discretion of the appointing power; hence, this special rule which
makes it indubitable that the general rules governing appointment in the civil
service, are inapplicable to appointments in a police service, except of course,
where it so expressly provided therein or incorporated in the implementing rules
and regulations.
4. As regards the chief of police, there is even another provision which serves to
underscore this special rule. I refer to the last paragraph of Section 10, supra,
which states that in case there is no civil service eligible available for the position
of chief of police, "provisional appointment may be made in accordance with the
Civil Service Law and Rules." It is implicit in this provision that in other cases,
especially those covered by section 17, the appointment shall be permanent in
nature and "as provided for in this (Police) Act."
5. ... [A]side from the provision (of section 11) specifically forbidding the filling of
any position by permanent appointment unless the appointee has the appropriate
eligibility, there appears to be no other statutory limitation on the City Mayor's
discretion in the selection of the chief of police so long as the one chosen
possesses the minimum qualifications prescribed by the Act. The Police Manual
has included the civil service rule on promotion which gives the next-in-rank,
among others, preference in the filling of the vacant position. However, upon
6
close examination of Rule VI, it is readily seen that the promotional rules therein
set forth find application only to the filling of positions in the police service below
that of chief of police he being the one charged with the duty and responsibility of
screening and recommending for promotion the deserving members of the police
agency (sections 2, 3, 4, 5 and 6). Of course, in every case the next-in-rank or
deputy chief, by reason of his position, would surely be among the first to be
considered by the City Mayor in the selection of the chief of police, if qualified
and competent; but he cannot claim any preferential right over others in the list of
eligibles based on the aforementioned rule found in the Civil Service Act.
6. This was the legal situation at the time of the enactment of the
Decentralization Law (RA 5185, approved on September 12, 1967). I am unable
to see any substantial change resulting from the insertion in section 4 thereof,
quoted supra, of the provision that the heads of offices and their respective
assistants, whose salaries are paid out of city funds, shall be appointed by the
City Mayor "subject to the civil case law, rules and regulations." Obviously, this
clause refers to office heads whose appointments, unlike that of the chief of
police, are not covered by any special law or provision and should therefore be
appointed in accordance with the general civil service law and rules ... What is
more important and far reaching in Section 4 is the provision which categorically
states that the offices of the aforementioned heads and assistant heads 'shall be
filled by appointment from a list of five next ranking eligible and qualified persons
as certified by the Civil Service Commissioner," which shall be based on such
factors as class of the city where the vacancy occurs, seniority, efficiency rating,
extra-ordinary qualifications, etc. The import of this special provision is that the
filling of the positions of the office heads and assistant heads is to be governed
by this special rule, unencumbered by the civil service rule on the preferential
right of the next-in-rank and others seeking transfer, reinstatement or
reemployment in order to give the City Mayor a wide latitude in the choice of key
officials. ...
          Answering the memorandum of the Secretary of Justice, Subido
contended in his own memorandum to the President of October 14, 1968 that
section 23 of the Civil Service Act does not conflict with the provisions of the
Police Act of 1966. "In fact, it was incorporated verbatim in the Police Manual.
But what is important is that the filling of positions in the police service including
that of Chief of Police in accordance with the procedure outlined in paragraph 3
of Sec. 23 of Republic Act 2260 in relation to Sec. 4 of the Decentralization Act
(Rep. Act 5185) would strengthen the police service. Vice versa, leaving the
matter of promotion solely to the discretion of the Mayor without regard to the
order of priorities contained in the Civil Service Law, would result in its
demoralization."
          Nor did he think the mayor's reasons for bypassing Pineda to be valid,
considering that just a few months before the mayor had appointed Pineda
deputy chief of police. "If Mr. Pineda can qualify as Deputy Chief of Police in the
Mayor's estimation (and thus under Sec. 17 of the Police Act, he shall
automatically assume the office of Chief of Police in case a temporary vacancy
occurs in said office), how can Mayor Claudio now claim in all sincerity that Mr.
Pineda is not qualified to be chief of Police?"
          Respondents Claudio and Villa point out, on the other hand, that Subido
should be held in estoppel on the basis of his approval of the very appointment of
Pineda as deputy chief of police of Pasay City, where no list of those with
"preferential rights" and no inquiry as to the mayor's reasons for not appointing
the police officer next-in-rank in the Pasay City police department was made; and
that advising the mayor that "the filling of the vacancy for Deputy Chief of Police
is governed by Section 4, R.A. 5185," Subido merely issued a certification,
containing the names of "five ranking qualified and eligible persons" including
Pineda, and evidently did not consider as applicable the provisions on
preferences of Section 23 of the Civil Service Act nor the ruling in Millares v.
Subido 1 now invoked by him.
          Subido admitted in his reply that Memorandum Circular No. 1, S. 1968,
dated January 12, 1968, under which he issued "priorities," "overlooked the
Millares case and relied solely on the provision of Sec. 4, Rep. Act 5185," but
averred that later, after having become convinced that the Millares ruling was
applicable to the filling of vacancies of heads and assistant heads of local offices
under the Decentralization Law, he issued Memorandum Circular No. 21, S.
1968, dated September 5, 1968, providing for such procedure of priorities, which
was the procedure in force as of the date the appointment of Villa was received
in his office.
          As no solution to the impasse was in sight, Pineda filed the present action,
contending that, under section 23 of the Civil Service Act, as interpreted in
Millares, in relation to Section 4 of the Decentralization Act, it is the duty of the
mayor to promote him as the ranking employee, and that only if for some "special
reasons" he cannot be promoted may others be considered for transfer,
reemployment or certification, "in that order".
          On the other hand, Claudio's position is that what controls is not section 23
of the Civil Service Act but section 8 of the Police Act of 1966, which states that a
chief of police may be appointed "from the list of eligibles certified by the Civil
Service Commissioner". As Villa is one of these certified, Claudio concludes that
his appointment as chief of police is in order.
          Section 17 of the Police Act of 1966 expressly provides that "In case of
vacancy caused by death, retirement, resignation, suspension or removal in a
local police agency, the mayor shall fill such vacancy as provided for in this Act,"
obviously referring to Section 8 thereof will states that "appointment to a local
police agency shall be made by a mayor from the list of eligibles certified by the
Civil Service Commission." The validity of Villa's appointment, because he is one
of those mentioned in the certified list of eligibles, as required by the Police Act of
1966, could be here and now sustained, without need of further discussion, were
it not for the subsequent enactment in 1967 of the Decentralization Act,
particularly, Section 4 thereof, which provides:
        Appointment of Heads, Assistant Heads of Local Offices and Their
Subordinates. — The Provincial Assessor, Provincial Agriculturist and other
heads of offices entirely paid out of provincial funds and their respective
assistants shall, subject to civil service law, rules and regulations, be appointed
by the Provincial Governor: Provided, however, That this section shall not apply
to Judges, Auditors, Fiscals, Division Superintendents of Schools, Supervisors,
Principals, Provincial Treasurers, Provincial Health Officers and District
Engineers.
          The City Assessor, City Agriculturist, City Chief of Police and City Chief of
Fire Department and other heads of offices entirely paid out of city funds and
their respective assistants or deputies shall, subject to civil service law, rules and
regulations, be appointed by the City Mayor: Provided, however , That this section
shall not apply to Judges, Auditors, Fiscals, City Superintendents of Schools,
Supervisors, Principals, City Treasurers, City Health Officers and City Engineers.
xxx     xxx     xxx
          In case of vacancies in the offices of heads and assistant heads of local
offices, the governor or mayor shall fill them by appointing from a list of the five
next ranking eligible and qualified persons as certified by the Civil Service
Commissioner: Provided, That these five persons shall have stated beforehand
that they will assume the position if appointed.
          The ranking shall be based on such factors as class of province, city or
municipality where the vacancy occurs, seniority, efficiency rating, extraordinary
qualifications and other supplementary criteria as may be prescribed by the Civil
Service Commission. (R.A. 5185)
          The pertinent provisions thereof to the effect that the heads of offices
entirely paid out of city funds, including the chiefs of police, and their assistants
or deputies, shall, "subject to civil service law, rules and regulations, be
appointed by the City Mayor" and that the mayor "shall fill them by appointment
from a list of the five next ranking eligible and qualified persons as certified by the
Civil Service Commissioner," throw us right back to the basic Civil Service Act. It
behooves us, specifically, to determine the scope and meaning of the provisions
of Section 23 which deal with the "Recruitment and Selection of Employees."
          The contending parties have thus thrust upon this Court the basic issue of
the proper application and scope of Section 23 of the Civil Service Act in relation
to the provisions of the Decentralization Act of 1967 and the Police Act of 1966.
          The petitioner states the issues as follows:
(1) Is it mandatory and ministerial upon the Mayor of Pasay City to
promote to the vacant position of Chief of Police, a competitive
position, petitioner Pineda, the incumbent Deputy Chief of Police,
who is the competent and qualified next-in-rank employee with the
appropriate civil service eligibility?
(2) Is respondent Mayor's appointment of respondent Villa to the
said classified position of Chief of Police null and void, considering
that he is an outsider, he is not next-in-rank employee and he has
not passed the Civil Service examination for Chief of Police?
          The respondents Claudio and Villa formulate the issues, thus:
(1) Is the appointment of the Chief of Police of Pasay City to be
regulated by Section 8 of the Police Act of 1966, or by Section 4 of
the Decentralization Act and the third paragraph of Section 23 of the
Civil Service Law?
(2) If the appointment of the Chief of Police of Pasay City is subject
to the provisions of section 4 of the Decentralization Act, is it
mandatory that respondent Mayor appoint Petitioner to the position?
          The respondent Subido, in his Answer, "submits the matter to the judicious
consideration of this Honorable Court," emphasizing the urgency of the resolution
of the legal issues presented, "considering that the questioned appointment of
respondent Francisco A. Villa would be the first appointment under the
Decentralization Act and any decision thereon would guide the future action of
7
the Civil Service Commission and other offices concerned in the application of
said law."
          The first two paragraphs of Section 23 of the Civil Service Act (the third
paragraph we have already reproduced above, supra), read together with
Section 1 of Article XII of the Philippine Constitution which directs that
"[A]ppointments in the Civil Service ... shall be made only according to merit and
fitness, to be determined as far as practicable by competitive examinations,"
provide the key for the proper application and interpretation of the "next-in-rank"
rule enunciated in the third paragraph of said Sec. 23. These first two paragraphs
set the guide norm that:
          SEC. 23. Recruitment and Selection of Employees. — Opportunity for
government employment shall be open to all qualified citizens and positive
efforts shall be exerted to attract the best qualified to enter the service.
          Employees shall be selected on the basis of their fitness to perform the
duties and assume the responsibilities of the positions whether in the competitive
or classified or in the non-competitive or unclassified service. (Emphasis
supplied)
          The granting of equal opportunity for government employment to all
qualified citizens and the exertion of positive efforts to attract the best qualified to
enter the service may be implemented effectively only through the judicious
exercise of the best judgment and discretion of the appointing authority.
          Resolving the issue squarely presented, we hold that it is neither
mandatory nor ministerial for the mayor of Pasay City to promote to the vacant
position of chief of police the incumbent deputy chief of police Pineda, and that
the appointment to said position of the respondent Villa, who has been certified
as qualified and eligible, although an "outsider" and not the next-in-rank
employee, is valid, in the same manner that the appointment of Pineda, although
an "outsider" and not the next-in-rank, to the position of deputy chief of police
was valid.
          The Civil Service Act does not peremptorily require the mayor to promote
the officer next in rank. Section 23 thereof does not require that vacancies must
be filled by promotion, transfer, reinstatement, reemployment or certification, in
that order. That would be to construe the provision not merely as a legislative
prescription of qualifications but as a legislative appointment, repugnant to the
Constitution. What it does purport to say is that as far as practicable the person
next in rank should be promoted, otherwise the vacancy may be filled by transfer,
reinstatement, reemployment or certification, as the appointing power sees fit,
provided the appointee is certified to be qualified and eligible — which is the
basic requirement of the Civil Service Act, as well as of the Police Act and the
Decentralization Law.
          To construe section 23 the way the petitioner urges it should be, would be
to unduly interfere with the power and prerogatives of the local executive as
reinforced by the Decentralization Act at the same time that it would frustrate the
policy of the Police Act "to achieve and attain a higher degree of efficiency in the
organization, administration, and operation of local police agencies" 2 and that of
the Civil Service Act "to attract the best qualified to enter the service." For it is not
enough that an aspirant is qualified and eligible or that he is next in rank or line
for promotion, albeit by passive prescription. It is just as necessary, in order for
public administration to be dynamic and responsive to the needs of the times,
that the local executive be local the choice of men of his confidence, provided
they are qualified and eligible, who in his best estimation are possessed of the
requisite reputation, integrity, knowledgeability, energy and judgment. After all, it
is the local executive, more than anyone else, who is primarily responsible for
efficient governmental administration in the locality and the effective maintenance
of peace and order therein, and is directly answerable to the people who elected
him. Nowhere is this more true than in the sensitive area of police administration.
          True it is that in Millares, 3 this Court, referring to section 23 of the Civil
Service Act, made the following statement:
          In other words, a vacant position (be it new or created by the cessation of
an incumbent in office) shall be filed by promotion of the ranking officer or
employee, who is competent and qualified to hold the same. And only where, for
special reason or reasons of which the affected officer or employee will be
notified, this mode of recruitment or selection cannot be observed, that the
position may be filled either by transfer, or reemployment, or by getting from the
certified list of appropriate eligibles, in that order.
          But that statement was not necessary, considering that, in the language of
the decision itself, "no evidence was presented that there were ranking
employees in the office of the City Mayor affected by the appointment of appellee
to the position involved herein." There was therefore no occasion for the
application of section 23 to that case.
          Here, the question is squarely presented, 4 and we now rule that the
principle of seniority and the next-in-rank rule embodied in section 23, with its
corollary requirement to set forth the "special reason or reasons" in case the
officer next in rank is not appointed to the vacant position, applies only to cases
of promotion. Hence, where the appointing power chooses to fill the vacancy not
by promotion but by transfer, reinstatement, reemployment or certification (not
necessarily in that order, as we have already said) he is under no duty
whatsoever to explain his action, for the law does not so require him. The reason
for this distinction is simple. When a person who is a junior jumps over his senior,
the ranking is disturbed and the person next in rank is actually bypassed, and so
it is reasonable to require the appointing power to give his "special reason or
reasons" for preferring his appointee to the officer next-in-rank. But where the
vacancy is filled not by promotion but by transfer, the person next-in-rank is not
really bypassed because the person appointed is one who holds a position of
equivalent rank as the vacant position. To the appointee, the new position is
hardly a higher one. As this Court correctly observed in Millares, in distinguishing
promotion from transfer, "whereas the first denotes a scalar ascent of a senior
officer or employee to another position, higher either in rank or salary, the second
refers to a lateral movement from one position to another of equivalent rank, level
or salary." 5
          The same reasoning applies when the person chosen to fill the vacancy is
merely being reinstated to, or reemployed in, the position which he formerly held.
For it is obvious that in this case such person is the senior of the one who at the
moment is next in rank. As for the person chosen by certification, it may be said
that he has never been rated before and so he can be said neither to be below
nor above the ranking employee in the hierarchy.
          It may be added that there is no valid or cogent reason to consider it
mandatory and ministerial that the filling of vacancies be by promotion, transfer,
reinstatement or re-employment, and certification, in that order. There is no legal
fiat that those next in rank for promotion are more fit and meritorious for
appointment than those moved by transfer from another unit or department, and
that those applying for transfer should have "preference" to those seeking
reinstatement, and the latter in turn to those who are duly certified eligibles. From
the perspective of practical experience, it cannot be doubted that some next-in-
rank officers or employees have risen to their seniority slots through mere
passivity. And as a matter of policy, those who have previously resigned to avoid
investigation of involvement in irregularities in office should certainly not be
allowed to invoke "preference" when they subsequently seek reinstatement or
reemployment. The only way to determine such fitness would be to hold a
competitive examination among all applicants every time a vacancy occurs,
which would be completely disruptive of the public service. Our Constitution
recognized this and hence provided that appointments be made according to
merit and fitness, to be determined only as far as practicable by competitive
examination. Hence, our system of qualification through periodic appropriate
examinations. Among those qualified and eligible, the appointing authority is
granted the discretion and prerogative of choice of the one he deems most fit for
appointment.
          This is not to say that seniority and rank are of no consequence. The Civil
Service Act does direct, as we construe it, that as far as practicable the next in
rank should be among the first considered for the vacancy, if qualified and
eligible, and requires that when the vacancy is filled by promotion, the appointing
authority must give the "special reason or reasons" for by passing the next-in-
rank. But such official cannot claim any preferential right to appointment to the
vacancy over others equally certified to be qualified and eligible for appointment
by transfer, reinstatement or reemployment, or by appropriate certification, just
as those applying for transfer cannot claim preference over those seeking
reinstatement, etc., nor subject the appointing authority's reasons for his choice
to final review and decision by the Civil Service Commissioner. To so hold as the
petitioner and the respondent Commissioner contend, would be to invalidly
substitute the judgment of the Commissioner of Civil Service for that of the
appointing authority, in whom the prerogative of free choice resides. More, in the
present case, Subido's action of questioning respondent Claudio's sincerity in not
appointing petitioner to the vacant position of chief of police when he had
appointed him (Pineda) as deputy chief of police just a few months before,
projects the pitfalls of such a theory which would in some cases permit
unauthorized interference by the Commissioner of Civil Service with the
appointing authority's free exercise of his judgment and prerogative of free
choice.
          Of course, where there is unequivocally demonstrated an arbitrary and
improvident exercise of the power of the appointing authority, as will constitute a
denial of due process of law, to paraphrase the Court's ruling in Morrero v. Bocar,
6
such as where the qualifications, merit, experience and competence of an
official next in rank for promotion are widely disparate over those of the actual
appointee, proper remedy through judicial review would be available. For due
process recognizes the free exercise by the executive of his prerogatives under
the Constitution and the laws but rules out arbitrariness and oppression. 7
          We do not of course lose sight of the fact that Section 4 of the
Decentralization Act of 1967 does provide that
8
          In cases of vacancies in the offices of heads and assistant heads of local
offices, the governor or mayor shall fill them by appointment from a list of the five
next ranking eligible and qualified persons as certified by the Civil Service
Commission. ...
          Reading this provision in the light of the Civil Service Act, the meaning
emerges that in each class the Commissioner must certify, whenever there are
available, five ranking, qualified and eligible persons. Thus, the Commissioner
whenever practicable and possible, must certify five qualified and eligible
persons for each area, i.e., five such persons for promotion, five such persons for
transfer, and so on. And this has been properly implemented by the respondent
Commissioner in his last Memorandum Circular No. 21, S. of 1968, dated
September 5, 1968, where he announced that his office would certify not more
than five eligibles and qualified persons in each list as follows: "(a) promotion list;
(b) transfer list; (c) reinstatement/reemployment list; and (d) list of appropriate
eligibles," 8 although he erroneously assigned priority thereto in that order,
whereas we have above ruled that there is no such order of priority amongst the
four said areas.
          We, therefore, hold that in the event of there occurring a vacancy, the
officer next in rank must, as far as practicable and as the appointing authority
sees fit in his best judgment and estimation, be promoted, otherwise the vacancy
may be filled either by transfer, reinstatement, reemployment or certification —
not necessarily in that order — and that it is only in cases of promotion, where an
employee other than the ranking one is appointed, is the appointing power under
duty to give "special reason or reasons" for his action to the Civil Service
Commissioner, as provided in Section 23, third paragraph, of the Civil Service
Act.
          As there is no question that the respondent Villa has been certified to be
qualified and eligible, it is well within the ambit of the power of the respondent
Claudio to appoint him chief of police of Pasay City. Consequently, the
respondent Claudio owes the petitioner no duty to extend to him a promotional
appointment, the performance of which may be compelled by mandamus.
          ACCORDINGLY, the petition for mandamus is denied, without
pronouncement as to costs.
National Service Corp. v. NLRC, 168 SCRA 125 (1988) -- The civil service does
not include Government owned or controlledcorporations (GOCC) which are
organized as subsidiaries of GOCC under the general corporation law.F: Eugenio
Credo was an employee of the National Service Corporation. She claims she
was illegally dismissed. NLRC ruled orderingher reinstatement. NASECO argues
that NLRC has no jurisdiction to order her reinstatement. NASECO as a
government corporation byvirtue of its being a subsidiary of the NIDC, which is
wholly owned by the Phil. National Bank which is in turn a GOCC, the terms
andconditions of employment of its em¬ployees are governed by the Civil
Service Law citing National Housing v Juco.ISSUE: W/N employees of NASECO,
a GOCC without original charter, are governed by the Civil Service Law.HELD:
NO. The holding in NHC v Juco should not be given retro¬active effect, that is to
cases that arose before its promulga¬tion of  Jan 17, 1985. To do otherwise
would be oppressive to Credo and other employees similarly situated because
under the 1973 Constibut prior to the ruling in NHC v Juco, this court recognized
the applicability of the Labor jurisdiction over disputes involving terms
andconditions of employment in GOCC's, among them NASECO.In the matter of
coverage by the civil service of GOCC, the 1987 Consti starkly differs from the
1973 consti where NHC v Juco wasbased. It provides that the "civil service
embraces all branches, subdivisions, instrumentalities, and agencies of the
Government,including government owned or controlled corporation with origi¬nal
charter." Therefore by clear implication, the civil service doesnot include GOCC
which are organized as subsidiaries of GOCC under the general corporation law.
For more case digests and lawschool notes visit lizajamarga.com.
Salvacion Monsanto vs Deputy Exec Sec Fulgencio Factoran  civil service are denominated as "government employees"] and that the SSS is
Pardon Does not Extinguish Civil Liabilities & It is Prospective
FACTS: Monsanto was the Asst Treasurer of Calbayug City. She was charged
for the crime of Estafa through Falsification of Public Documents. She was found
guilty and was sentenced to jail. She was however granted pardon by Marcos.
She then wrote a letter to the Minister of Finance for her to be reinstated to her
former position since it was still vacant. She was also requesting for back pays.
The Minister of Finance referred the issue to the Office of the President and
Factoran denied Monsanto’s request averring that Monsanto must first seek
appointment and that the pardon does not reinstate her former position. Also,
Monsanto avers that by reason of the pardon, she should no longer be compelled
to answer for the civil liabilities brought about by her acts.
ISSUE: Whether or not Monsanto should be reinstated to her former post.
HELD: 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.” This would explain why petitioner, though pardoned, cannot be entitled
to receive backpay for lost earnings and benefits. On the other hand, civil liability
arising from crime is governed by the RPC. 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.
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA),
DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN
ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN,
VIRGILIO MAGPAYO, petitioner, vs.THE COURT OF APPEALS, SOCIAL
SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98,
QUEZON CITY, respondents.
G.R. No. 85279
July 28, 1989
Facts: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon
City a complaint for damages with a prayer for a writ of preliminary injunction
against petitioners, alleging that on June 9, 1987, the officers and members of
SSSEA staged an illegal strike and baricaded the entrances to the SSS Building,
preventing non-striking employees from reporting for work and SSS members
from transacting business with the SSS; that the strike was reported to the Public
Sector Labor - Management Council, which ordered the strikers to return to work;
that the strikers refused to return to work; and that the SSS suffered damages as
a result of the strike. The complaint prayed that a writ of preliminary injunction be
issued to enjoin the strike and that the strikers be ordered to return to work; that
the defendants (petitioners herein) be ordered to pay damages; and that the
strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the
union's demands, which included: implementation of the provisions of the old
SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues;
payment of accrued overtime pay, night differential pay and holiday pay;
conversion of temporary or contractual employees with six (6) months or more of
service into regular and permanent employees and their entitlement to the same
salaries, allowances and benefits given to other regular employees of the SSS;
and payment of the children's allowance of P30.00, and after the SSS deducted
certain amounts from the salaries of the employees and allegedly committed acts
of discrimination and unfair labor practices.
Issue: Whether or not employees of the Social Security System (SSS) have the
right to strike.
Held: The 1987 Constitution, in the Article on Social Justice and Human Rights,
provides that the State "shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31].
Resort to the intent of the framers of the organic law becomes helpful in
understanding the meaning of these provisions. A reading of the proceedings of
the Constitutional Commission that drafted the 1987 Constitution would show
that in recognizing the right of government employees to organize, the
commissioners intended to limit the right to the formation of unions or
associations only, without including the right to strike.
Considering that under the 1987 Constitution "the civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters"
[Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the
one such government-controlled corporation with an original charter, having been
created under R.A. No. 1161, its employees are part of the civil service
[NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are
covered by the Civil Service Commission's memorandum prohibiting strikes. This
being the case, the strike staged by the employees of the SSS was illegal.
Trade Unions of the Philippines and Allied Services (TUPAS) VS. NHA, 173
SCRA 33
F: Respondent NHC is a corporation organized in 1959 under the Uniform
Charter of Government Corporations. Its shares of stock have been 100% owned
by the Government from its incorpora¬tion. Petitioner TUPAS is a legitimate labor
organization with a chapter in NHC. TUPAS filed a petition for certification
elec¬tion with DOLE. It was denied.
HELD: The civil service now covers only govt owned or controlled corporations
9
w/ original or legislative charters, that is those created by an act of Congress of
by special law, and not those incorporated under and pursuant to a general
legislation.
xxx
There is, therefore, no impediment to the holding of a certification election among
the workers of NHC for it is clear that they are covered by the Labor Code, the
NHC being a govt owned and/ or controlled corp. w/o an original charter. For
more case digests and law school notes visit lizajamarga.com.
Garcia v. Chairman, Commission on Audit, et al.
Facts: Vicente Garcia was a Supervising Lineman in the Region IV Station of the
Bureau of Telecommunications in Lucena City. On 1 April 1975, Garcia was
summarily dismissed from the service on the ground of dishonesty in accordance
with the decision of the then Ministry of Public Works, Transportation and
Communications in Administrative Case 975 for the loss of several telegraph
poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc,
Quezon, telecom lines. Garcia did not appeal from the decision. Based on the
same facts obtaining in the administrative action, a criminal case for qualified
theft was filed against Garcia with the then Court of First Instance (now Regional
Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision
acquitting Garcia of the offense charged. Consequently, Garcia sought
reinstatement to his former position in view of his acquittal in the criminal case. In
an indorsement dated 7 April 1980, Garcia's request to be reinstated was denied
by the Bureau of Telecommunications. Hence, Garcia pleaded to the President of
the Philippines for executive clemency. On 26 August 1981, acting on the
favorable indorsements of the then Ministry of Transportation and
Communications and the Civil Service Commission, Deputy Presidential
Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per
Resolution No. O.P. 1800, granted executive clemency to Garcia. Garcia
thereafter filed with the Commission on Audit (COA) a claim for payment of back
salaries effective 1 April 1975, the date of his dismissal from the service. This
was denied by the COA in its 5th Indorsement dated 12 October 1982 on the
ground that the executive clemency granted to him did not provide for the
payment of back salaries and that he has not been reinstated in the service. It
appears that Garcia was recalled to the service on 12 March 1984 but the
records do not show whether Garcia's reinstatement was to the same position of
Supervising Lineman. Garcia again filed a claim to recover his back salaries for
the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when
he was reinstated. In Decision 362 embodied in its 3rd Indorsement dated 23
July 1985, COA denied the claim stating that the executive clemency was silent
on the payment of back wages and that he had not rendered service during the
period of his claim. Aggrieved, Garcia appealed the COA decision of 23 July
1985 to the Office of the President. On 21 April 1986, Deputy Executive
Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the
appeal "due to legal and constitutional constraint," holding that the Supreme
Court is the proper forum to take cognizance of the appeal on certiorari from the
decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution
(now Art. IX-[A], Sec. 7, of the 1987 Constitution). Hence, Garcia filed the petition
for review on certiorari.
Issue: Whether Garcia is entitled to the payment of back wages after having
been reinstated pursuant to the grant of executive clemency.
Held: Yes. Every civilized country recognizes, and has therefore provided for, the
pardoning power to be exercised as an act of grace and humanity, in proper
cases. Without such a power of clemency, to be exercised by some department
or functionary of a government, a country would be most imperfect and deficient
in its political morality and in that attribute of Deity whose judgments are always
tempered with money. Our Constitution reposes in the President the power and
the exclusive prerogative to extend executive clemency under the following
circumstances, "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." From among the different acts of executive clemency spelled
out above, the clemency granted to Garcia in the instant case partakes of the
nature of an executive pardon. Time and again the Supreme Court has unfolded
the effects of a pardon upon the individual to whom it is granted. In Monsanto v.
Factoran, the Court has firmly established the general rule that while a pardon
has generally been regarded as blotting out the existence of guilt so that in the
eyes 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 and not forgetfulness . It does not erase the fact
of the commission of the crime and the conviction thereof. Pardon frees the
individual from all the penalties and legal disabilities and restores to him all his
civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender
regains his eligibility for appointment to public office which was forfeited by
reason of the conviction of the offense. But since pardon does not generally
result in automatic reinstatement because the offender has to apply for
reappointment, he is not entitled to back wages. But, stated otherwise, if the
pardon is based on the innocence of the individual, it affirms this innocence and
makes him a new man and as innocent; as if he had not been found guilty of the
offense charged. When a person is given pardon because he did not truly commit
the offense, the pardon relieves the party from all punitive consequences of his
criminal act, thereby restoring to him his clean name, good reputation and
unstained character prior to the finding of guilt. Herein, Garcia was found
administratively liable for dishonesty and consequently dismissed from the
service. However, he was later acquitted by the trial court of the charge of
qualified theft based on the very same acts for which he was dismissed. The
acquittal of Garcia by the trial court was founded not on lack of proof beyond
reasonable doubt but on the fact that Garcia did not commit the offense imputed
to him. Aside from finding him innocent of the charge, the trial court commended
Garcia for his concern and dedication as a public servant. Verily, Garcia's
innocence is the primary reason behind the grant of executive clemency to him,
bolstered by the favorable recommendations for his reinstatement by the Ministry
of Transportation and Communications and the Civil Service Commission. The
bestowal of executive clemency on Garcia in effect completely obliterated the
adverse effects of the administrative decision which found him guilty of
dishonesty and ordered his separation from the service. This can be inferred
from the executive clemency itself exculpating Garcia from the administrative
charge and thereby directing his reinstatement, which is rendered automatic by
the grant of the pardon. This signifies that Garcia need no longer apply to be
reinstated to his former employment; he is restored to his office ipso facto upon
the issuance of the clemency. Garcia's automatic reinstatement to the
government service entitles him to back wages. This is meant to afford relief to
Garcia who is innocent from the start and to make reparation for what he has
suffered as a result of his unjust dismissal from the service. To rule otherwise
would defeat the very intention of the executive clemency, i.e., to give justice to
Garcia. Moreover, the right to back wages is afforded to those with have been
illegally dismissed and were thus ordered reinstated or to those otherwise
acquitted of the charges against them. There is no doubt that Garcia's case falls
within the situations aforementioned to entitle him to back wages. Further, it is
worthy to note that the dismissal of Garcia was not the result of any criminal
conviction that carried with it forfeiture of the right to hold public office, but is the
direct consequence of an administrative decision of a branch of the Executive
Department over which the President, as its head, has the power of control. The
President's control has been defined to mean "the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to the judgment of the former for the latter." In
pardoning Garcia and ordering his reinstatement, the Chief Executive exercised
his power of control and set aside the decision of the Ministry of Transportation
and Communications. The clemency nullified the dismissal of Garcia and relieved
him from administrative liability. The separation of the Garcia from the service
being null and void, he is thus entitled to back wages. After having been declared
innocent of the crime of qualified theft, which also served as basis for the
administrative charge, Garcia should not be considered to have left his office for
all legal purposes, so that he is entitled to all the rights and privileges that
accrued to him by virtue of the office held, including back wages.
CARMEN FESTEJO vs. ISAIAS FERNANDO,
FACTS: The defendant, as Director of the Bureau of Public Works, without
authority obtained first from the Court of First Instance of Ilocos Sur, without
obtaining first a right of way, and without the consent and knowledge of the
plaintiff, and against her express objection unlawfully took possession of portions
of the three parcels of land and caused an irrigation canal to be constructed on
the portion of the three parcels of land on to the damage and prejudice of the
plaintiff.
ISSUE: Whether or not this is a suit against the state?
RULING:No, the evidence and conceded facts in finding that in the trespass on
plaintiff's land defendant committed acts outside the scope of his authority. When
he went outside the boundaries of the right of way upon plaintiff's land and
damaged it or destroyed its former condition and usefulness, he must be held to
have designedly departed from the duties imposed on him by law.
Ordinarily the officer or employee committing the tort is personally liable
therefore, and may be sued as any other citizen and held answerable for
whatever injury or damage results from his tortuous act.
It is a general rule that an officer-executive, administrative quasi-judicial,
ministerial, or otherwise who acts outside the scope of his jurisdiction and without
10
authorization of law may thereby render himself amenable to personal liability in
a civil suit. If he exceed the power conferred on him by law, he cannot shelter
himself by the plea that he is a public agent acting under the color of his office,
and not personally. In the eye of the law, his acts then are wholly without
authority.
ART. 32. Any public officer or emplyee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
(6) The right against deprivation of property without due process of law;
Separate Opinions CONCEPCION, J., dissenting:
To my mind, the allegations of the complaint lead to no other conclusion than that
appellee Isaias Fernando is a party in this case, not in his personal capacity, but
as an officer of the Government. According to said pleading the defendant is
"Isaias Fernando, Director, Bureau of Public Works." Moreover, in paragraphs 4
and 5 of the complaint, it is alleged:
4. That the defendant as Director of the Bureau of Public Works, is in charge of
irrigation projects and systems, and the official responsible for the construction of
irrigation system in the Philippines;
We take judicial notice of the fact that the irrigation projects and system reffered
to in the complaint — of which the defendant, Isaias Fernando, according to the
same pleading, is "in charge" and for which he is "responsible" as Director of the
Bureau of Public Works — are established and operated with public funds, which
pursuant to the Constitution, must be appropriated by law. Irrespective of the
manner in which the construction may have been undertaken by the Bureau of
Public Works, the system or canal is, therefore, a property of the Government.
American Tobacco Company et al vs Director of Patents
Due Process
ATC et al filed before the Philippine Patent Office concerning the use of trade
mark and trade name. ATC et al challenged the validity of Rule 168 of the
“Revised Rules of Practice before the Philippine Patent Office in Trademark
Cases” as amended, authorizing the Director of Patents to designate any ranking
official of said office to hear “inter partes” proceedings. Said Rule likewise
provides that “all judgments determining the merits of the case shall be
personally and directly prepared by the Director and signed by him.” These
proceedings refer to the hearing of opposition to the registration of a mark or
trade name, interference proceeding instituted for the purpose of determining the
question of priority of adoption and use of a trade-mark, trade name or service-
mark, and cancellation of registration of a trade-mark or trade name pending at
the Patent Office. Petitioners filed their objections to the authority of the hearing
officers to hear their cases, alleging that the amendment of the Rule is illegal and
void because under the law the Director must personally hear and decide inter
partes case. Said objections were overruled by the Director of Patents, hence,
the present petition for mandamus, to compel the Director of Patents to
personally hear the cases of petitioners, in lieu of the hearing officers.
ISSUE: Whether or not the hearing done by hearing officers are within due
process.
HELD: The SC ruled that the power to decide resides solely in the administrative
agency vested by law, this does not preclude a delegation of the power to hold a
hearing on the basis of which the decision of the administrative agency will be
made. The rule that requires an administrative officer to exercise his own
judgment and discretion does not preclude him from utilizing, as a matter of
practical administrative procedure, the aid of subordinates to investigate and
report to him the facts, on the basis of which the officer makes his decisions.   It
is sufficient that the judgment and discretion finally exercised are those of the
officer authorized by law. Neither does due process of law nor the requirements
of fair hearing require that the actual taking of testimony be before the same
officer who will make the decision in the case. As long as a party is not deprived
of his right to present his own case and submit evidence in support thereof, and
the decision is supported by the evidence in the record, there is no question that
the requirements of due process and fair trial are fully met.   In short, there is no
abnegation of responsibility on the part of the officer concerned as the actual
decision remains with and is made by said officer.   It is, however, required that
to “give the substance of a hearing, which is for the purpose of making
determinations upon evidence the officer who makes the determinations must
consider and appraise the evidence which justifies them.”
American Tobacco Co. vs. Director of Patents
[G.R. No. 139792. November 22, 2000]
ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF
APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN
MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE
COMMISSION, respondents.
In this petition for review on certiorari petitioner assails the decision of 19 August
1999 of the Court of Appealsi[1] in CA-G.R. SP No. 48301, which held that
petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited
to the number of years of his service in the Metropolitan Manila Authority (MMA)
only, excluding his years of service as judge of the Metropolitan Trial Court
(MeTC) of Quezon City for which he has already been given retirement gratuity
and pension.
The undisputed facts are as follows:
On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon
City, and he thereafter assumed office. After the military-backed EDSA revolt,
petitioner was reappointed to the same position.
On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No.
910,ii[2] as amended, and received his retirement gratuity under the law for his
entire years in the government service; and five years thereafter he has been
regularly receiving a monthly pension.
On 2 December 1993, petitioner re-entered the government service. He was
appointed Director III of the Traffic Operation Center of the MMA. His
appointment was approved by the Civil Service Commission (CSC).
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA
and renamed it as Metropolitan Manila Development Authority (MMDA). Section
11 thereof reads:
Section 11. Transitory Provisions. – To prevent disruption in the delivery of
basic urban services pending the full implementation of the MMDA’s
organizational structure and staffing pattern, all officials and employees of the
interim MMA shall continue to exercise their duties and functions and receive
their salaries and allowances until they shall have been given notice of change of
duties and functions, and of being transferred to another office or position.
...
The civil service laws, rules and regulations pertinent to the displacement of
personnel affected by this Act shall be strictly enforced. The national
government shall provide such amounts as may be necessary to pay the benefits
accruing to displaced employees at the rate of one and one-fourth (1¼) month’s
salary for every year of service: Provided, That, if qualified for retirement under
existing retirement laws, said employees may opt to receive the benefits
thereunder.
On 16 May 1996, the President of the Philippines issued Memorandum Order
No. 372 approving the Rules and Regulations Implementing R.A. No. 7924.
Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which,
inter alia, authorized the payment of separation benefits to the officials and
employees of the former MMA who would be separated as a result of the
implementation of R.A. No. 7924.
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing
him that in view of his “voluntary option to be separated from the service” his
services would automatically cease effective at the close of office hours on 15
September 1996, and that he would be entitled to “separation benefits equivalent
to one and one-fourth (1¼) monthly salary for every year of service as provided
under Section 11 of the MMDA Law.”
In view of some doubt or confusion as to the extent of his separation benefits,
petitioner submitted a Position Paper wherein he asserted that since the
retirement gratuity he received under R.A. No. 910, as amended, is not an
additional or double compensation, all the years of his government service,
including those years in the Judiciary, should be credited in the computation of
his separation benefits under R.A. No. 7924. The Assistant Manager for Finance
of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.
On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down
an opinion that the payment of petitioner’s separation pay must be in accordance
with Civil Service Resolution No. 92-063, pertinent portions of which read:
[T]he payment of separation/[retirement] benefits cannot be subject to the
prohibition against the [sic] double compensation in cases when officers and
employees who were previously granted said benefits are rehired or reemployed
in another government Agency or Office. Thus, there is no need for separated
employees to refund the separation/retirement benefits they received when
subsequently reemployed in another government agency or office.
… This being so, while an employee who was paid separation/retirement
benefits is not required to refund the same once reemployed in the government
service, as aforestated, for reasons of equity however, it would be proper and
logical that said separation/retirement benefits should nevertheless be deducted
11
from the retirement/[separation] pay to be received by the employee concerned.
Moreover, in this instance, the employee concerned has the option either to
refund his separation/retirement benefits and claim his gross
retirement/separation pay without any deduction corresponding to his separation
pay received, or not [to] refund his separation/retirement pay but suffer a
deduction of his retirement/separation gratuity for the total amount representing
his previous separation/retirement pay received.
His motion for reconsideration having been denied, petitioner elevated the
opinion of Director Acebedo to the CSC.
On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the
opinion of Director Acebedo and dismissing petitioner’s appeal. Citing Chaves v.
Mathay,iii[3] it held that petitioner cannot be paid retirement benefits twice – one
under R.A. No. 910, as amended, and another under R.A. No. 7924 – for the
same services he rendered as MeTC Judge. He can only exercise one of two
options in the computation of his separation pay under R.A. 7924. These options
are (1) to refund the gratuity he received under R.A. No. 910, as amended, after
he retired from the MeTC and get the full separation pay for his entire years in
the government, that is 9 years and 2 months with the MeTC plus two (2) years
and eight (8) months for his services as Director III in the defunct MMA, at the
rate of one and one-fourth salary for every year of service pursuant to MMDA
Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received
for his services as MeTC Judge but an equivalent amount shall be deducted from
the separation benefits due from the former MMA for his entire government
service.
On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying
petitioner’s motion for reconsideration. Accordingly, petitioner filed with the Court
of Appeals a petition to set aside these Resolutions.
On 19 August 1999, the Court of Appeals promulgated its decision, now
challenged in this case. It held that the CSC was “correct in dismissing
petitioner’s appeal from the opinion of Director Acebedo.” It ratiocinated as
follows:
There is no specific rule of law which applies to petitioner’s case. Nevertheless,
the Court finds it equitable to deny his claim for payment of separation pay at the
rate of one and one-fourth (1¼) month’s salary for every year of his service in
government, that is, inclusive of the number of years he served as Judge of the
Metropolitan Trial Court of Manila [sic].
Petitioner already received and is continually receiving gratuity for his years of
service as a Metropolitan Trial Court Judge. Equity dictates that he should no
longer be allowed to receive further gratuity for said years of service in the guise
of separation pay.
Suffice it to state that upon his retirement from his office as a Judge, petitioner
has already closed a chapter of his government service. The State has already
shown its gratitude for his services when he was paid retirement benefits under
Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards
[are] given to an employee who has given up the best years of his life to the
service of his country (Gov’t. Service Insurance System v. Civil Service
Commission, 245 SCRA 179, 188).
Now, the state again wishes to show its gratitude to petitioner by awarding him
separation pay for his services as a director of the Metro Manila Authority (MMA),
another chapter of petitioner’s government service which has come to a close by
the reorganization of the MMA into the Metropolitan Manila Development
Authority.
The Court, in limiting the computation of petitioner’s separation pay to the
number of years of his service at the MMA, merely is implementing the ruling in
“Chavez, Sr. vs. Mathay” (37 SCRA 776), which ruling, if not actually in point, is
nevertheless applicable owing to its “common-sense consideration.” Said ruling
reads:
“The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the
Court in Espejo, that if a retiree is being credited with his years of service under
his first retirement in computing his gratuity under his second retirement, it is but
just that the retirement gratuity received by him under his first retirement should
also be charged to his account, manifestly govern the case at bar. It is but in
accordance with the rule consistently enunciated by the Court as in Anciano v.
Otadoy, affirming Borromeo, that claims for double retirement or pension such as
petitioner’s, ‘would run roughshod over the well-settled rule that in the absence of
an express legal exception, pension and gratuity laws should be so construed as
to preclude any person from receiving double pension.’ (p. 780, underscoring
supplied)
The case at bench is not, strictly speaking, about ‘double pension.’ It is,
however, about the interpretation of a gratuity law, viz., Section 11 of Republic
Act No. 7924 which awards separation pay to those government employees who
were displaced by the reorganization of the MMA into the MMDA, which should
be construed to preclude a government employee from receiving double gratuity
for the same years of service.
We affirm the assailed judgment. We agree with the Court of Appeals and the
Civil Service Commission that for the purpose of computing or determining
petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of
service in the Judiciary should be excluded and that his separation pay should be
solely confined to his services in the MMA.
In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant
of separation pay at the rate of “one and one-fourth (1¼) months of salary for
every year of service” cannot by any stretch of logic or imagination be interpreted
to refer to the total length of service of an MMA employee in the government, i.e.,
to include such service in the government outside the MMA. Since it allows the
grant of separation pay to employees who were to be displaced thereby the
separation pay can be based only on the length of service in the MMA. The
displacement amounted to an abolition of the office or position of the displaced
employees, such as that of petitioner. The rule is settled that Congress may
abolish public offices. Such a power is a consequent prerogative of its power to
create public offices.iv[4] However, the power to abolish is subject to the condition
that it be exercised in good faith.v[5] The separation partook of the nature of a
disturbance of compensation; hence, the separation pay must relate only to the
employment thus affected.
Second, petitioner himself must have realized that Section 11 does not allow the
tacking in of his previous government service. If he were convinced that it does
he could have instead applied for retirement benefits, since by adding his years
of service in the MMA to his previous years of service in the Government he
could have retired under the third paragraph of Section 11, which pertinently
reads:
Provided, That, if qualified for retirement under existing retirement laws, said
employee may opt to receive the benefits thereunder.
Third, after the approval of his optional retirement on 1 April 1992, petitioner was
fully paid of his retirement gratuity under R.A. No. 910, as amended; and five
years thereafter he has been receiving a monthly pension.
The petitioner cannot take refuge under the second paragraph of Section 8 of
Article IX-B of the Constitution, which provides:
Pensions or gratuities shall not be considered as additional, double, or indirect
compensation.
This provision simply means that a retiree receiving pension or gratuity can
continue to receive such pension or gratuity even if he accepts another
government position to which another compensation is attached. vi[6]
Indeed, the retirement benefits which petitioner had received or has been
receiving under R.A. No. 910, as amended, do not constitute double
compensation. He could continue receiving the same even if after his retirement
he had been receiving salary from the defunct MMA as Director III thereof. This
is but just because said retirement benefits are rewards for his services as MeTC
Judge, while his salary was his compensation for his services as Director III of
the MMA.
However, to credit his years of service in the Judiciary in the computation of his
separation pay under R.A. No. 7924 notwithstanding the fact that he had
received or has been receiving the retirement benefits under R.A. No. 910, as
amended, would be to countenance double compensation for exactly the same
services, i.e., his services as MeTC Judge. Such would run counter to the policy
of this Court against double compensation for exactly the same services.vii[7]
More important, it would be in violation of the first paragraph of Section 8 of
Article IX-B of the Constitution, which proscribes additional, double, or indirect
compensation. Said provision reads:
No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law… .
Section 11 of R.A. No. 7924 does not specifically authorize payment of additional
compensation for years of government service outside of the MMA.
WHEREFORE, finding no reversible error in the judgment appealed from, the
petition in this case is DENIED for want of merit, and the decision of 19 August
1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Laurel V vs. CSC, 203 SCRA 195
FACTS: Petitioner, the duly elected Governor of the Province of Batangas,
appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the
Office of the Governor, a non-career service position which belongs to the
personal and confidential staff of an elective official. Upon the vacancy of the
position of Provincial Administrator of Batangas, petitioner designated his brother
as Acting Provincial Administrator. Then, he issued Benjamin Laurel a
promotional appointment as Civil Security Officer which is a position which the
12
Civil Service Commission classifies as "primarily confidential" pursuant to P.D.
No. 868.
ISSUE: Does nepotism apply to designation?
RULING: Yes. The court ruled that petitioner could not legally and validly appoint
his brother Benjamin Laurel to said position because of the prohibition on
nepotism under Section 49 of P.D. No. 807. They are related within the third
degree of consanguinity and the case does not fall within any of the exemptions
provided therein. The exemption in the said section covering confidential
positions cannot be considered since the said position is not primarily confidential
for it belongs to the career service.
Petitioner’s contention that the designation of his brother is not covered by the
prohibition cannot be accepted for by legal contemplation, the prohibitive mantle
on nepotism would include designation, because what cannot be done directly
cannot be done indirectly. His specious and tenuous distinction between
appointment and designation is nothing more than either a ploy ingeniously
conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to
cushion the impact of its violation. Section 49 of P.D. No. 807 does not suggest
that designation should be differentiated from appointment. Reading the section
with Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to
fill it up because it is vacant, is necessarily included in the term appointment, for
it precisely accomplishes
the same purpose.
CIVIL SERVICE COMMISSION V DACOYCOY
PARDO; April 29, 1999
FACTS - Respondent Pedro O. Dacoycoy was charged with habitual
drunkenness, misconduct and nepotism before the Civil Service Commission.
Accordingly, the Commission conducted a formal investigation, and thereafter,
promulgated its resolution finding no substantial evidence to support the charge
of habitual drunkenness and misconduct. However, the Commission found
respondent guilty of nepotism on two counts as a result of the appointment of his
two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and
their assignment under his immediate supervision and control as the Vocational
School Administrator Balicuatro College of Arts and Trades, and imposed on him
the penalty of dismissal from the service.
- The Commission denied respondent's motion for reconsideration.
- Respondent filed with the Court of Appeals a special civil action for certiorari
with preliminary injunction to set aside the Civil Service Commission’s
resolutions. The Court of Appeals then reversed and set aside the decision of the
Civil Service Commission, ruling that respondent did not appoint or recommend
his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court of
Appeals further held that it is "the person who recommends or appoints who
should be sanctioned, as it is he who performs the prohibited act." It likewise
declared null and void the Civil Service Commission’s resolution dismissing him
from the service.
- The Commission then filed an appeal via ceriorari before the Supreme Court.
ISSUES
1. WON respondent is guilty of nepotism
2. WON the Commission is the "party adversely affected by the decision" of the
Court of Appeals who may file an appeal therefrom
HELD1. YES- Under the definition of nepotism (Section 59 of Executive Order
292), one is guilty of nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
- the last two mentioned situations, it is immaterial who the appointing or
recommending authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the third civil
degree of consanguinity or affinity of the chief of the bureau or office, or the
person exercising immediate supervision over the appointee.
- Respondent is the Vocational School Administrator, Balicuatro College of Arts
and Trades, Allen, Northern Samar. He did not appoint or recommend his two
sons to the positions of driver and utility worker in the Balicuatro College of Arts
and Trades. It was Mr. Jaime Daclag, Head of the Vocational Department of the
BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to
recommend the appointment of first level positions such as watchmen, security
guards, drivers, utility workers, and casuals and emergency laborers for short
durations of three to six months was recommended by respondent Dacoycoy and
approved by DECS Regional Director Eladio C. Dioko, with the provision that
such positions shall be under Mr. Daclag’s immediate supervision. Atty. Victorino
B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito
Dacoycoy driver of the school. Mr. Daclag also appointed Ped Dacoycoy as
casual utility worker. However, it was respondent Dacoycoy who certified that
“funds are available for the proposed appointment of Rito Dacoycoy” and even
rated his performance as “very satisfactory”. On the other hand, his son Ped
stated in his position description form that his father was “his next higher
supervisor”. The circumvention of the ban on nepotism is quite obvious.
Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O.
Dacoycoy, who was the school administrator. He authorized Mr. Daclag to
recommend the appointment of first level employees under his immediate
supervision. Then Mr. Daclag recommended the appointment of respondent’s
two sons and placed them under respondent’s immediate supervision serving as
driver and utility worker of the school. Both positions are career positions.
- To our mind, the unseen but obvious hand of respondent Dacoycoy was behind
the appointing or recommending authority in the appointment of his two sons.
Clearly, he is guilty of nepotism.
- Nepotism is one pernicious evil impeding the civil service and the efficiency of
its personnel. The basic purpose or objective of the prohibition against nepotism
also strongly indicates that the prohibition was intended to be a comprehensive
one. The Court was unwilling to restrict and limit the scope of the prohibition
which is textually very broad and comprehensive. If not within the exceptions, it is
a form of corruption that must be nipped in the bud or bated whenever or
wherever it raises its ugly head. As we said in an earlier case "what we need now
is not only to punish the wrongdoers or reward the ‘outstanding’ civil servants,
but also to plug the hidden gaps and potholes of corruption as well as to insist on
strict compliance with existing legal procedures in order to abate any occasion for
graft or circumvention of the law."
2. YES- There is no question that respondent Dacoycoy may appeal to the Court
of Appeals from the decision of the Civil Service Commission adverse to him. He
was the respondent official meted out the penalty of dismissal from the service.
On appeal to the Court of Appeals, the court required the petitioner therein, here
respondent Dacoycoy, to implead the Civil Service Commission as public
respondent as the government agency tasked with the duty to enforce the
constitutional and statutory provisions on the civil service.
- Subsequently, the Court of Appeals reversed the decision of the Civil Service
Commission and held respondent not guilty of nepotism. Who now may appeal
the decision of the Court of Appeals to the Supreme Court? Certainly not the
respondent, who was declared not guilty of the charge. Nor the complainant
George P. Suan, who was merely a witness for the government. Consequently,
the Civil Service Commission has become the party adversely affected by such
ruling, which seriously prejudices the civil service system. Hence, as an
aggrieved party, it may appeal the decision of the Court of Appeals to the
Supreme Court. By this ruling, we now expressly abandon and overrule extant
jurisprudence that "the phrase ‘party adversely affected by the decision’ refers to
the government employee against whom the administrative case is filed for the
purpose of disciplinary action which may take the form of suspension, demotion
in rank or salary, transfer, removal or dismissal from office" and not included are
"cases where the penalty imposed is suspension for not more then thirty (30)
days or fine in an amount not exceeding thirty days salary" or "when the
respondent is exonerated of the charges, there is no occasion for appeal." In
other words, we overrule prior decisions holding that the Civil Service Law "does
not contemplate a review of decisions exonerating officers or employees from
administrative charges."
- The Court of Appeals’ reliance on Debulgado vs. Civil Service Commission, to
support its ruling is misplaced. The issues in Debulgado are whether a
promotional appointment is covered by the prohibition against nepotism or the
prohibition applies only to original appointments to the civil service, and whether
the Commission had gravely abused its discretion in recalling and disapproving
the promotional appointment given to petitioner after the Commission had earlier
approved that appointment. Debulgado never even impliedly limited the coverage
of the ban on nepotism to only the appointing or recommending authority for
appointing a relative. Precisely, in Debulgado, the Court emphasized that Section
59 "means exactly what it says in plain and ordinary language: x x x The public
policy embodied in Section 59 is clearly fundamental in importance, and the
Court had neither authority nor inclination to dilute that important public policy by
introducing a qualification here or a distinction there."
Decision Petition granted. The Court of Appeals' decision is reversed and the
resolutions of the Civil Service Commission are revived and affirmed.
SEPARATE OPINION
MELO [dissent and concur]
- Although I completely agree with the result and likewise with the wisdom in
which the issues relating to nepotism are threshed out in the majority opinion, I
do not agree with the majority opinion stating that the Civil Service Commission
may appeal a judgment of exoneration in an administrative case involving
nepotism. And Mr. Justice Puno would go further by allowing even a private
complainant – and by implication, a complainant office, to appeal a decision
13
exonerating or absolving a civil service employee of charges against, or even
imposing a penalty upon him. This totally contravenes our well-settled ruling in
several cases.
- The Court of Appeals exonerated respondent Dacoycoy of the charge of
nepotism. From such “adverse decision”, the Civil Service Commission, through
its Office for Legal Affairs, interposed the present appeal by way of a petition for
review on certiorari under Rule 45 of the Rules of Court. Under existing laws and
jurisprudence this is not allowed, so this Court ruled in the above-cited cases. If
this point is not stressed by the Court, the present decision might be
misconstrued as a watering down of the settled doctrine.
- It is axiomatic that the right to appeal is merely a statutory privilege and may be
exercised only in the manner and in accordance with the provision of law.
- A cursory reading of P.D. 807, otherwise known as “The Philippine Civil Service
Law” shows that said law does not contemplate a review of decisions
exonerating officers or employees from administrative charges.
- Section 37 paragraph (a) thereof, provides:
- "The Commission shall decide upon appeal all administrative disciplinary cases
involving the imposition of a penalty of suspension for more that thirty days, or
fine in an amount exceeding thirty days’ salary, demotion in rank or salary or
transfer, removal or dismissal from office."
- Said provision must be read together with Section 39 paragraph (a) of P.D. 805
(should be 807) which contemplates:
"Appeals, where allowable, shall be made by the party adversely affected by the
decision."
- The phrase "party adversely affected by the decision" refers to the government
employee against whom the administrative case is filed for the purpose of
disciplinary action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office. The remedy of appeal may be
availed of only in a case where the respondent is found guilty of the charges
against him. But when the respondent is exonerated of said charges, as in the
case, there is no occasion for appeal.
- Based on the above provision of law, appeal to the Civil Service Commission in
an administrative case is extended to the party adversely affected by the
decision, that is, the person or the respondent employee who has been meted
out the penalty of suspension for more than thirty days; or fine in an amount
exceeding thirty days salary, demotion in rank or salary or transfer, removal or
dismissal from office. The decision of the disciplining authority is even final and
not appealable to the Civil Service Commission in cases where the penalty
imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days’ salary. Appeal in cases allowed by law must be filed within
fifteen days from receipt of the decision.
- It is my submission that the prerogative to now determine whether this practice
of disallowing appeals in cases of exoneration should still continue or not,
exclusively belongs to Legislature. The Court cannot and should not arrogate this
policy-making power of Congress unto itself, not even in the guise of the exercise
of its expanded power of judicial review under the 1987 Constitution. Only
Congress has authority to remedy inadequacies in the wisdom of a law, should it
find any, especially when the definite intention of the existing law was to disallow
the State to appeal from judgments of exoneration. Any attempt by the Court to
transgress this most basic principle in the separation of powers between these
two branches of government would to my mind, result in the abhorrent act of
judicial legislation.
- Effective June 1, 1995, Revised Administrative Circular No. 1-95 ordained that,
appeals from awards, judgments or final orders or resolutions of or authorized by
any quasi-judicial agency (which includes the Civil Service Commission) in the
exercise of its quasi-judicial functions shall be taken by filing a verified petition for
review with the Court of Appeals. Although in general, appeal by certiorari from a
judgment or final order or resolution of the Court of Appeals may be filed via a
verified petition for review on certiorari with this Court (where pure questions of
law, distinctly set forth therein, may be duly raised), an appeal involving a
judgment or final order of the Court of Appeals exonerating a government
employee in an administrative case, in particular, falls within the ambit of the
provisions of Section 39, paragraph (a) of Presidential Decree No. 807. It is
elementary that a special law such as Presidential Decree No. 807 takes
precedence over general rules of procedure such as Rule 45 of the Rules of
Court. No appeal may, therefore, be taken under Rule 45.
- Moreover, it is recognized in our jurisdiction that an administrative case which
could result in the revocation of license, or similar sanctions like dismissal from
office, constitutes a proceeding which partakes of a criminal nature. Being such,
provisions of law pertaining thereto must perforce be construed strictly against
the State, just as penal laws are strictly construed strictly against the State. Any
ambiguity, should there be any, must be resolved in favor of the respondent in
the administrative case. The term "party adversely affected" should not be
construed as to include the State in administrative charges involving nepotism.
- To allow appeals from decisions, be they exonerative or otherwise, against civil
service employees would, to my mind, be stocking the stakes too much against
our civil servants. It should be noted in this regard that the greater bulk of our
government workers are ordinary people, working under supervision and, more
often than not, exposed to political pressure and the influence of peddlers of
power. Their simple status notwithstanding, they are not easily cowed and
intimidated. Many, though, are threatened with complaints, transfer of station, or
demotion, if they refuse to do the bidding of some unscrupulous superiors or
politicians. I can, therefore, understand why the law and our jurisprudence
disallow appeal by the complainant from decisions in administrative cases, be
they exonerative or otherwise. Verily, an employee may be hounded into
spending up to his last resources and losing his self-respect and honor by
successive appeals.
- What will happen, if for instance, the respondent government employee is
initially exonerated or given a light penalty, and the complainant may appeal,
insisting that the employee is guilty or that he deserves a heavier penalty? And, if
the Civil Service Commission thereafter metes out a penalty not to the liking of
the complainant, the matter may still be elevated to the Court of Appeals or even
this Court? Where else will all this end, if not in the physical and financial
exhaustion of the respondent civil servant? Again, I wish to stress that I speak
here of the ordinary employees. The big shots in government who commit
wrongs may somehow hereby benefit, but then we shall be content in concluding
that we decided in favor of the many, that the good of the majority prevailed.
- A judgment of exoneration by the Court of Appeals, as in the case of a
judgment of exoneration by the Civil Service Commission or the now defunct
Merit System Protection Board, may indeed prove to be truly adverse to the
government agency concerned and eventually to the State as a whole. This is
especially so when there had been lapses in the interpretation and/or application
of the law as in the present case. This notwithstanding, the right to appeal, which
is merely statutory may not be invoked, much less exercised, when the law does
not provide any. Again, until and unless Congress exercises its prerogative to
amend such law, this Court is bound by it and has no other recourse except to
apply the same. Fortunately for petitioner but not so for respondent, the latter
failed to invoke the foregoing general rule. In a similar case, we held that the
party favored by such law who fails to interpose any objection to an appeal may
be deemed to have waived this right.
- Premises considered and with the above observations, I vote to grant the
petition as stated in the dispositive thereof.
PUNO [concur]
- Appeal to the Civil Service Commission in an administrative case is extended to
the party adversely affected by the decision, that is, the person of the respondent
employee who has been meted out the penalty of suspension for more than thirty
days, or fine in an amount exceeding thirty days salary, demotion in rank or
salary or transfer, removal or dismissal from office. The decision of the
disciplining authority is even final and not appealable to the Civil Service
Commission in cases where the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days salary. Appeal in cases
allowed by law must be filed within fifteen days from receipt of the decision.
- It is axiomatic that the right to appeal is merely a statutory privilege and may be
exercised only in the manner and in accordance with the provision of law.
- By inference or implication, the remedy of appeal may be availed of only in a
case where the respondent is found guilty of the charges filed against him. But
when the respondent is exonerated of said charges, as in this case, there is no
occasion for appeal.
- The phrase ‘party adversely affected by the decision’ refers to the government
employee against whom the administrative case is filed for the purpose of
disciplinary action which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office.
- With humility, I make the submission that is time to strike down the doctrine
disallowing appeals to the Civil Service Commission when the decision
exonerates a government official or employee from an administrative charge. The
doctrine is principally based on a constricted interpretation of Section 39 of P.D.
No. 807 (Civil Service Law) which states:
“Sec. 39. (a) Appeals, where allowable, shall be made by the party adversely
affected by the decision within fifteen days from receipt of the decision unless a
petition for reconsideration is seasonably filed, which petition shall be decided
within fifteen days. x x x”
- According to Paredes, Mendez and Magpale, the phrase “party adversely
affected by the decision” refers alone to the respondent government official or
employee against whom the administrative case is filed. They excluded from its
compass the party complainant whose charge is dismissed. Hence, when the
respondent government official or employee is exonerated, the decision is
deemed final as the party complainant is precluded from appealing.
14
- I find it difficult to agree with the above interpretation which is not only too
narrow but is subversive of the essence of our civil service law. In the case at
bar, private respondent is the Vocational Administrator of the Balicuatro College
of Arts and Trades. His charged with the offense of nepotism for the appointment
of two sons as driver and utility worker under his immediate control and
supervision. It is beyond argument that nepotism is prohibited by our civil service
law for it breeds inefficiency, if not corruption, in government service. The critical
question, therefore, is: who has the standing to prevent the violation of this law
and protect public interest? I submit that a taxpayer has the standing to bring suit
to void nepotic acts for he has an interest that “appointments in the civil service
shall be made only according to merit and fitness x x x.” A taxpayer has a right to
good government and good government cannot result from appointments
determined by bloodlines. The Civil Service Law itself recognizes that there are
offenses which can be the subject of a complaint by any private citizen. Thus,
Section 37 of the law allows any private citizen to file a complaint against a
government official or employee directly with the Commission. Section 38 also
recognizes that “administrative proceedings may be commenced against a
subordinate officer or employee by the head of the department or office of
equivalent rank, or head of local government or chiefs of agencies, or regional
directors or upon sworn written complaint of any other persons.” The general rule
is that one who has a right to be heard has standing to seek review of any ruling
adverse to him. Hence, if a private citizen has the right to file an administrative
complaint, he must also have the right to appeal a dismissal of his complaint,
unless the law clearly precludes his right of appeal for indubitable policy reasons.
A contrary rule will diminish the value of the right to complain. The cases of
Paredes, Mendez and Magpale do not give any policy reasons why the dismissal
of a charge of nepotism cannot be appealed. They merely resort to doubtful
inferences in justifying the bar to appeals. Such an approach goes against the
rule that “preclusions of judicial review of administrative action . . . is not lightly to
be inferred.
- In truth, the doctrine barring appeal is not categorically sanctioned by the Civil
Service Law. For what the law declares as "final" are decisions of heads of
agencies involving suspension for not more than 30 days or fine in an amount not
exceeding 30 days salary. But there is a clear policy reasons for declaring these
decisions final. These decisions involve minor offenses. They are numerous for
they are the usual offenses committed by government officials and employees.
To allow their multiple level appeal will doubtless overburden the quasi-judicial
machinery of our administrative system and defeat the expectation of fast and
efficient action from these administrative agencies. Nepotism, however, is not a
petty offense. Its deleterious effect on government cannot be over-emphasized.
And it is a stubborn evil. The objective should be to eliminate nepotic acts,
hence, erroneous decisions allowing nepotism cannot be given immunity from
review, especially judicial review. It is thus non sequitur to contend that since
some decisions exonerating public officials from minor offenses can not be
appealed, ergo, even a decision acquitting a government official from a major
offense like nepotism cannot also be appealed.
- Similarly, the doctrine barring appeal cannot be justified by the provision limiting
the jurisdiction of the Civil Service Commission to review decisions involving: (1)
suspension for more than thirty (30) days; (2) fine in an amount exceeding thirty
(30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or
dismissal from office. Again, there is nothing in this provision indicating legislative
intent to bar appeal from decisions exonerating a government official or
employee from nepotism. Statutory preclusion of appeals is the exception rather
than the rule, for as stressed by Mr. Justice Douglas, "tolerance of judicial review
has been more and more the rule against the claim of administrative finality." Yet
the cases of Paredes, Mendez and Magpale precisely barred all appeals despite
lack of an explicit, positive provision in the Civil Service Law.
- Moreover, the case at bar involves the right of a party adversely affected to
resort to judicial review. This case does not involve the appellate jurisdiction of
the Civil Service Commission, i.e., whether or not it has the power to review a
decision exonerating a government official from a charge of nepotism. The facts
show that it was the Civil Service Commission that at the first instance found
Dacoycoy guilty of nepotism. It was Dacoycoy who appealed the decision of the
Civil Service Commission to our regular court, more exactly, the Court of Appeals
pursuant to the Rules of Court. As Dacoycoy only impleaded Suan as
respondent, the Court of Appeals ordered that the Civil Service Commission
should also be impleaded as party respondent. The Court of Appeals then
reversed the Commission as it cleared Dacoycoy from the charge of nepotism.
The question therefore is whether or not this Court is precluded from reviewing
the decision of the Court of Appeals on a petition for certiorari under Rule 45.
Again, I submit that this Court has jurisdiction to entertain this review. Indeed,
under the Constitution, the jurisdiction of this Court has even been expanded "to
determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of
government." The question is not our lack of jurisdiction but the prudential
exercise of power. In certiorari cases alleging grave abuse of discretion, our
given task is to determine how much is too much of an abuse.
- To my mind, it is also of de minimis importance that the petition of thus Court
was filed by the Civil Service Commission. The records will reveal that Suan, the
original complainant, wrote to the Civil Service Commission urging it to make the
appeal ostensibly for lack of means. But even without Suan, I submit that the
nature of the issue in the case at bar and its impact on the effectiveness of
government give the Civil Service Commission the standing to pursue this
appeal. The issue in the case at bar is basically a legal one, i.e., the proper
interpretation of who can be convicted of nepotism, and undoubtedly, this Court
has the authoritative say on how to interpret laws. Administrative agencies have
always conceded that the final interpretation of laws belongs to regular courts.
And the issue has broad implications on the merit and fitness philosophy of our
civil service system. Under Sec. 3, Article IX (B) of our Constitution, it is the Civil
Service Commission that has oversight of our civil service system. It is thus the
party better equipped to argue the diverse dimensions of the issue. It is also the
most affected, for it has the duty not to stand still when nepotic practices threaten
the principle of meritrocacy in our government. It seems to me self evident that
this type of injury to public interest can best be vindicated by the Commission
and not by a private person.
- There are other disturbing implication if we do not junk the doctrine of non-
reviewability of decisions exonerating government officials from charges of
nepotism. For one, the doctrine unduly favors officials charged with nepotism, for
while we allow further review of their conviction, we disallow review of their
exoneration, regardless of the errors. This distorted rule contravenes our distaste
against nepotism, a practice whose continuance can fatally erode faith in
government. For another, perpetuating a nepotic act, an evil that should be
extirpated wherever found, can never be the intent of our legislators who crafted
our Civil Service Law. For still another, completely cutting off access to judicial
review goes against the spirit of the 1987 Constitution expanding the jurisdiction
of this Court. Putting up borders of non-reviewability weakens the judiciary’s
checking power. Indeed, shielding abusive administrative actions and decisions
from judicial oversight will ultimately erode the rule of law. As Justice Brandeis
opined, "supremacy of law demands that there shall be an opportunity to have
some court decide whether an erroneous rule of law was applied and whether
the proceeding in which facts were adjudicated was conducted regularly."
- I join the majority opinion.
ROMERO [dissent]
- Does the Civil Service Commission have the legal personality to appeal a
decision of the Court of Appeals exonerating an employee charged in an
administrative case, which decision, in effect, reversed and nullified the
Commission’s finding that the respondent employee is guilty as charged?
- After an exhaustive and careful scrutiny of P.D. No. 807 (otherwise known as
the Civil Service Law), Executive Order No. 292 (otherwise known as the
Revised Administrative Code of 1987) as well as the Omnibus Rules
Implementing Book V of Executive Order No. 292, I find no legal basis to support
the contention of the majority that the Commission has that legal personality.
- The Civil Service Commission is the central personnel agency of the
government. Corollarily, it is equipped with the power and function to hear and
decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments and to review decisions and actions of
its offices and the agencies attached to it. This is in consonance with its authority
to pass upon the removal, separation and suspension of all officers and
employees in the civil service and upon all matters relating to the conduct,
discipline and efficiency of such officers and employees except as otherwise
provided by the Constitution or by law. It is thus clear that the Civil Service
Commission has been constituted as a disciplining authority.
- Section 34, Rule XIV of the Omnibus Rules Implementing Book V of Executive
Order No. 292 provides the answer as to who may appear before the
Commission, thus:
"Administrative proceedings may be commenced against a subordinate officer or
employee by the following officials and employees:
(a) Secretary of department;
(b) Head of Office of Equivalent rank;
(c) Head of Local Government Unit;
(d) Chief of Agency;
(e) Regional Director; or
(f) Upon Sworn, Written complaint of Any other Person."
- Consequently, the complaint can either be the Secretary of department, head of
office of equivalent rank, head of a local government unit, chief of agency,
regional director or any other person or party. The phrase ‘any other party’ has
been understood to be a complainant other than the head of department or office
15
of equivalent rank or head of local government or chiefs of agencies or regional
directors.
- The respondent, on the other hand, is any subordinate officer or employee.
Nowhere can be found, expressly or impliedly, in Section 34 of Rule XIV of
Omnibus Rules Implementing Book V of E.O. No. 292, the Commission as one of
the parties, either as complainant or respondent in an administrative case.
Logically and by necessary implication, it cannot considered either a complaint or
a respondent. Expressio unius est exclusio alterius. The express mention of one
person, thing or consequence implies the exclusion of all others. Based on the
foregoing, there is no other conclusion but that the Civil Service Commission is
not a party to an administrative proceeding brought before it. As provided by
Supreme Court Administrative Circular 1-95, decisions, orders or rulings of the
Commission may be brought to the Supreme Court, now to the Court of Appeals,
on certiorari by the aggrieved party. By inference, an aggrieved party is either the
one who initiated the complaint before the Commission or the respondent, the
person subject of the complaint. In fact, the question as to who is an “aggrieved
party” has long been settled in a litany of cases. An aggrieved party in an
administrative case is the government employee against whom an administrative
complaint is filed. The Civil Service Commission is definitely not a government
employee. Neither is it an agency against whom an administrative charge is filed.
While it may be argued that, in a sense, the government is an "aggrieved party"
in administrative proceedings before the Commission, it nevertheless is not the
"aggrieved party" contemplated under P.D. No. 807 or the Civil Service Law.
- Having established that the Civil Service Commission is not a party, much less
an aggrieved party, then indubitably, it has no legal personality to elevate the
case to the appellate authority. The Commission, therefore, has no legal standing
to file the instant petition.
- While admittedly, the Civil Service Commission is considered a nominal party
when its decision is brought before the Court of Appeals, such is only a
procedural formality. As with appellate processes, a nominal party is not the
aggrieved party. Its inclusion as a party is based primarily on the fact that the
decision, order or ruling it issued is being contested or assailed and secondarily,
for purposes of enforcement. By analogy, the Commission in the performance of
its quasi-judicial functions is just like a judge who should "detach himself from
cases where his decision is appealed to a higher court for review. The raison
d’etre for such doctrine is that a judge is not an active combatant in such
proceeding and must leave the opposing parties to contend their individual
positions and for the appellate court to decide the issues without his active
participation. By filing this case, petitioner in a way ceased to be judicial and has
become adversarial instead."
- I dissent from the ponencia’s conclusion that the Commission may appeal a
judgement of exoneration in an administrative case involving nepotism in light of
the foregoing disquisition.
CASE DIGEST ON TABUENA v. SANDIGANBAYAN [121 SCRA 389 (1983)]
Facts:
?          In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6,
1986, President Marcos allegedly commanded petitioner Tabuena, in his
capacity as General Manager of the Manila International Airport Authority (MIAA),
“to pay immediately the Philippine National Construction Corporation, thru this
Office (Office of the President), the sum P55M in cash as partial payment of
MIAA’s account with said company mentioned in a Memorandum of (Trade and
Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985…” Tabuena
withdrew the sum of 55M on three separate occasions (25M, 25M, 5M – with
Adolfo Peralta) and delivered them to Gimenez, Marcos’s private secretary.
?          It is without dispute that Tabuena did not follow the normal procedures in
withdrawal and delivery of the money (no disbursement slips and paid in cold
cash).
?          Tabuena was only issued a receipt after the third delivery and it did not
mention anything about the purpose of the receipt or the money being used to
pay PNCC, but merely acknowledged that Gimenez had received the sum of
55M from Tabuena on three occasions. Furthermore, there was no receipt from
the PNCC recognizing payment of debt.
?          Prosecution: there were no standing obligations in favor of the PNCC at
the time of disbursement of 55M. PNCC said themselves that they didn’t receive
the P55M.
?          Tabuena claimed that he was only complying with the direct order of
Marcos (plus the Marcos memorandum which contained same order) to
immediately forward to the office of the President, 55M in cash, as partial
payment of MIAA’s obligations to PNCC and that he believed that MIAA indeed
had those liabilities to PNCC. In short, that Tabuena acted in good faith.
?          Sandiganbayan rejected Tabuena’s claim of good faith and found him
guilty of malversation by negligence, hence this case.
Issue: WON Tabuena, in following the orders of his superior, was guilty of
malversation (or if because of the justifying circumstance of following the orders
of his superior, in good faith, he would not be criminally liable, but merely civilly
liable)?
Held: Tabuena is merely civilly liable. The very fact that he was merely following
the orders of his superior is a justifying circumstance.
Ratio:
1.         On the point raised by Tabuena that he cannot be charged with
intentional malversation and be convicted by malversation by negligence, the
Court ruled that the dolo and culpa of the offense is only a modality in the
perpetration of the felony. The same felony is still there and conviction thereof is
proper.
2.         On the defense of good faith: it is a valid defense against malversation
because it would negate criminal intent. To constitute a crime, the act must,
except in certain crimes…be accompanied by criminal intent or such negligence
or indifference to duty or to consequences as is equivalent to criminal intent The
maxim actus non facit reum, nisi mens sit rea – a crime is not commited if the
mind of the person performing the act complained of is innocent (malversation
cases: US v. Catolico, US v. Elvina).
3.         The Court, based on the evidence presented, found that Tabuena had no
other choice but to actually follow the order stated in the Marcos Memorandum,
because, as president of the Philippines, indubitably the head of governmental
agencies such as the MIAA and PNCC, Marcos is undeniably the superior of
Tabuena.
4.         Tabuena entitled to the justifying circumstance of “any person who acts in
obedience to an order issued by a superior for some lawful purpose” because he
is only acting in good faith, faithfully and efficiently carrying out orders from the
highest official in the land. Moreover, there was nothing in the Marcos
Memorandum that may invite suspicion – there was no question about the
lawfulness of the order contained in such a memorandum. Tabuena had reason
to believe that the 55M was indeed part of a due and demandable debt, a portion
of a bigger liability to PNCC (existence of such debts determined from
testimonies). So even if the order was illegal and Tabuena was not aware of the
illegality, he would not be liable because there would only be a mistake of fact
committed in good faith.
5.         Tabuena followed the memorandum to the letter, paying immediately the
PNCC, through this office (office of the president) the sum of 55M. Tabuena had
reasonable ground to believe that the President was entitled to receive the
money because as Chief Executive, Marcos exercised supervision and control
over governmental agencies (good faith in the payment of public funds relieves a
public officer from the crime of malversation).
6.         While even Tabuena admitted that procedures were ignored and that the
disbursement was unusual, he is found to be excused from such because the
Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other
hand, while this allows for the negation of criminal intent, as Tabuena acted in
good faith, he would still be civilly liable (but he’s not criminally liable anymore,
escaping the harsher penalties) (see page 362).
7.         There is no showing that Tabuena had anything to do with the creation of
the Marcos Memorandum – that even if the real purpose behind the
memorandum was to get 55M from public funds, it is clear that he did and would
not profit from such and that he did not have anything to do with the creation of
the memorandum.
8.         Tabuena case is a case concerning obedience in good faith of a duly
executed order. The order/memorandum came from the Office of the President
and bears the signature of the president himself, in effect allowing for the
presumption that such order was regularly issued and patently legal.
Furthermore, the wording of the memorandum expressed a certain urgency to its
execution—Obedienta est legis essential (act swiftly without question).
9.         Main Ratio: Furthermore, the Court itself raises the contention that the
case involves a violation of the accused’s right to due process in the sense that it
was obvious that the Sandiganbayan was overzealous in its attempt to convict
parties involved – as seen in the volume of questions asked, and the manner the
same were posed (cross examinations characteristic of confrontation, probing
and insinuation). To quote Justice Cruz, “Respect for the Constitution is more
important that securing a conviction based on a violation of the rights of the
accused.” Sandiganbayan was obviously biased, denying Tabuena and parties
involves the requirement of the cold neutrality of an impartial judge. As a
consequence of such violation of due process, the order of Sandiganbayan was
found void. Note that this defense was not raised by Tabuena.
Voting:
?          Four concurred (Narvasa, Vitug, Kapunan, Mendoza)
?          Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban)
?          Justice Hermosisima took no part as he was a signatory to the SB
decision
16
?          Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the
majority opinion but they reserve their right to change their vote should a similar
case with the same facts arise.)
Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the
proposition that any public official who blindly follows orders of their superior.
Thus, this case is not authoritative on Art. 11(6).
Decision: Tabuena and Peralta acquitted.
Davide, dissenting: Davide disagrees with majority that all the requisites of the
sixth justifying circumstance in art 11 of the RPC were present The sixth
circumstance of the said article implies 3 things: a) that the order was issued by a
superior; b) such order must be for some lawful purpose and; c) means used by
subordinate to carry out said order must be lawful. According to Davide, facts
show that the debt was only 34.5M so order of Marcos had excess of 20.5M –
said order then had no factual or legal basis and unlawful.
Romero, dissenting: He also believes that not all requisites were present to
warrant a justifying circumstance as Tabuena, by his own admission, did not
follow standard operating procedures (no vouchers, no approval by Commission
on Audit, non-issuance of a receipt in 1st 2 deliveries, non-issuance of receipt by
PNCC, delivery to office of Gimenez [not office in Malacanang], a stranger to
contract between PNCC and MIAA). The entire process, done with haste and
with a total disregard of appropriate auditing requirements was not based on
normal procedure. Tabuena’s rank does not excuse him from ignoring such.
Puno, dissenting: He concentrates on the case involving a mistake in fact, citing
the Ah CHong case among others, and discussing article 3 in some detail -saying
that mistake in fact should not excuse the accused from incurring liability. It was
also clear from the facts that it took one month for Tabuena to comply with order
(starting from the time Marcos called him up by phone – to which the
memorandum containing the same orders followed a week later), which is more
than enough time to comply with procedure. He also adds that if there was not
enough time, Tabuena should have asked for more time or at least
communicated such problems to the president. Moreover, to acquit the
petitioners imply that people believe that the president is always right, that he or
she can do no wrong – that the president is above and beyond the law.
Panganiban, dissenting: He is of the same view as Romero, Davide and Puno
but also raises some points: the defense of obedience to a superior’s order is
already obsolete, as determined by the Tribunal in Nuremberg, in its judgment
against Nazi war criminals who put up the defense that they were merely
following orders. The tribunal said that the true test did not lie with the existence
of an order but whether a moral choice was in fact, possible. To allow this
defense to hold in the Tabuena case sets a dangerous precedent in the country
because it would deprive the Courts the moral authority to convict any
subordinate because he or she was “merely following the orders of the his or her
superior (allowing the same doctrine to be invoked in similar criminal cases
before the SC and even in the inferior courts who have no choice but to follow
the doctrines set by the SC).

17
iC a s e :
C O R R E A v s . C F I o f B U L A C A N 9 2 S C R A 3 1 2 – M u n i c i p a l corporation is responsible only for acts of its officers only
whent h e y h a v e a c t e d b y a u t h o r i t y o f l a w a n d i n c o n f o r m i t y w i t h requirements. A public officer who commits a tort or wrongful act,done in excess
or beyond the scope of his duty, is not protectedb y h i s o f f i c e a n d i s p e r s o n a l l y l i a b l e t h e r e f o r l i k e a n y p r i v a t e individual

Case Digest on Ocampo v. Office of the Ombudsman 322 SCRA 17

November 10, 2010
FACTS:  A criminal complaint was filed against petitioner for estafa and falsification.  The Ombudsman issued several orders to petitioner to file his counter-affidavit and
controverting evidence.  Petitioner failed.  The Ombudsman issued the assailed resolution dismissing petitioner from service.  Petitioner claimed that he was denied due
process because he was not given any notice of the order declaring him to have waived his right to file his counter-affidavit.
HELD:  The orders of the Ombudsman requiring petitioner to submit his counter-affidavit contained a warning that if no counter-affidavit is filed within the given period, a
waiver would be considered.  Also, petitioner was given the opportunity to be heard.  A party who chooses not to avail of the opportunity cannot complain of denial of due
process
OCAMPO vs. OFFICE OF THE OMBUDSMAN
G.R. No. 114683 January 18, 2000
FACTS: Petitioner is the Training Coordinator of NIACONSULT, INC., a subsidiary of the National Irrigation Administration. K.N. Paudel of the Agricultural Development
Bank of Nepal (ADBN) wrote a letter to NIACONSULT requesting a training proposal on small-scale community irrigation development.
Petitioner as the training coordinator of the NIACONSULT, sent a letter-proposal requested by ABDN. Another letter was sent by petitioner on  to Dr. Peiter Roeloffs of
ADBN confirming the availability of NIACONSULT to conduct the training program and formally requesting advance payment of thirty (30%) percent of the training fee in the
amount of US $9,600.00 or P204,960.00.
NIACONSULT conducted the training program for six Nepalese Junior Engineers from February 6 to March 7, 1989. ADBN, thru its representative, Deutsche Gesselschaft
Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal Republic of Germany paid to the petitioner the agreed training fee in two installments of
P61,488.00 and P143, 472.00.7
NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a letter to petitioner demanding the turn-over of the total training fee paid by ADBN which petitioner
personally received.
Despite receipt of the letter, petitioner failed to remit the said amount prompting NIACONSULT through its president, Maximino Eclipse, to file an administrative case before
respondent OMBUDSMAN for serious misconduct and/or fraud or willful breach of trust.
The respondent OMBUDSMAN,  issued an order requiring petitioner to file his counter-affidavit within ten (10) days from receipt with a caveat that failure to file the same
would be deemed a waiver of his right to present evidence. Despite notice, petitioner failed to comply with the said order.
A year later, respondent OMBUDSMAN issued another order giving petitioner another chance to file his counter-affidavit and controverting evidence. Again, petitioner
failed. Thus, private respondent was required to appear before the OMBUDSMAN to present evidence to support its complaint.
Respondent OMBUDSMAN issued the assailed Resolution WHICH recommended that respondent Jesus C. Ocampo be discharged from the service, with forfeiture of
benefits and special perpetual disqualification to hold office in the government or any government-owned or controlled corporation; without prejudice to any civil action
NIACONSULT, Inc., may institute to recover the amount so retained by the respondent.
Petitioner moved for reconsideration and to re-open the case claiming that he was denied due process in that the administrative case was resolved on the basis of the
complainant's evidences, without affording him the opportunity to file a counter-affidavit and to present his evidence.
Petitioner likewise contends that he was not given access to the records of the subject transaction vital to his defense and in the preparation of his counter-affidavit despite
his verbal requests to the graft investigator.
The respondent OMBUDSMAN denied the motion. Aggrieved, petitioner filed the instant petition basically reiterating his arguments in his motion for reconsideration.
While the case is pending, petitioner filed a Manifestation stating that the criminal complaint for estafa and falsification filed against him based on the same facts or
incidents which gave rise to the administrative case, was dismissed by the Regional Trial Court.
RULING: With the dismissal of the criminal case, petitioner manifests that the administrative case can no longer stand on its own and therefore should be dismissed. Such
manifestation is not well taken.
The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health in all respects. The Regional Trial Court, in
dismissing the criminal complaint, was simply saying that the prosecution was unable to prove the guilt of petitioner beyond reasonable doubt, a condition sine qua non for
conviction.
The lack or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though
insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence.
Then too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Thus, considering the difference in the quantum of evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the
findings and conclusions in one should not necessarily be binding on the other.
Going now to the CRUX OF THE CONTROVERSY, petitioner asserts that he was denied the opportunity to be heard.
The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably
and practicable than oral argument, through pleadings.
In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due
process in its strict judicial sense.
Petitioner has been amply accorded the opportunity to be heard. He was required to answer the complaint against him. In fact, petitioner was given considerable length of
time to submit his counter-affidavit.
It took more than one year before petitioner was considered to have waived his right to file his counter-affidavit and the formal presentation of the complainant's evidence
was set. The order was issued to give the petitioner a last chance to present his defense, despite the private respondent's objections. But petitioner failed to comply with the
second order.
Thus, petitioner's failure to present evidence is solely of his own making and cannot escape his own remissness by passing the blame on the graft investigator. While the
respondent OMBUDSMAN has shown forbearance, petitioner has not displayed corresponding vigilance.
He therefore cannot validly claim that his right to due process was violated. We need only to reiterate that a party who chooses not to avail of the opportunity to answer the
charges cannot complain of a denial of due process.
Petitioner's claim that he was not given any notice of the order declaring him to have waived his right to file his counter-affidavit and of allowing the private respondent to
present evidence ex-parte is unmeritorious.
The orders of respondent OMBUDSMAN requiring petitioner to submit his counter-affidavit and which was admittedly received by the latter explicitly contain a warning that
if no counter-affidavit was filed within the given period, a waiver would be considered and the administrative proceedings shall continue according to the rules.
Thus, respondent OMBUDSMAN need not issue another order notifying petitioner that he has waived his right to file a counter-affidavit. In the same way, petitioner need
not be notified of the ex-parte hearing for the reception of private respondent's evidence. As such, he could not have been expected to appear at the ex-parte hearing.
With regard to the petitioner's claim that he made requests for the production of the documents alleged to be material to his defense, the record is bereft of any proof of
such requests. If it were true that the graft investigator did not act on such requests, petitioner should have filed the proper motion before the respondent OMBUDSMAN for
the production of the documents or to compel the respondent complainant to produce whatever record necessary for his defense.
Petitioner did not. It was only after the respondent OMBUDSMAN issued the assailed resolution of that he bewailed the alleged failure of respondent's graft investigator to
require the production of the records of the subject transaction.
The record of this case indisputably shows that petitioner is guilty of dishonesty and conduct prejudicial to the government when he failed to remit the payment of the
training program conducted by NIACONSULT.
The evidence presented sufficiently established that petitioner received the payments of ADBN through its representative, GTZ, Philippines the amount of US $9,600.00
and that he failed to account this and remit the same to the corporation. All these acts constitute dishonesty and untrustworthiness.
WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Resolutions of the respondent OMBUDSMAN are hereby AFFIRMED
OCA vs ENRIQUEZ

  Chavez vs. Sandiganbayan

Facts:Civil case was filed against Enrile in the Sandiganbayan for alleged illegal activities made byEnrile during the Marcos era. Enrirle
filed a motion to dismiss and compulsory counter- claim. In thecounter- claim Enrile moved to implead Chavez and other PCGG officials on
the basis that the casefield agaisnt him was a “harassment suit”. The motion to implead Chavez and others was granted by the
Sandiganbayan.Chavez and the PCGG officials raised the defense that they are immune from suit by virtue of  Sec. 4 of Executive Order NO. 1. It
was found in the records of the PCGG, declared by Jovito Salonga,the there are no proof linking Enrile with the illegal activities performed by Marcos.
It was further  averred that the case filed against Enrile was instigated by Sol. Gen. Chavez.Sol. Gen. Chavez defended himself by saying that he was
acting as a counsel and cannot by made a defendant in a counter-claim. Issue:W h e t h e r o r n o t S o l . G e n . C h a v e z c a n b e m a d e l i a b l e f o r
d a m a g e s i n f i l i n g t h e s u i t a g a i n s t Enrile.Held:The court held that the grounds for allowing the compulsory counter-claim of Enrile was basedon the malice or
bad faith of Chavez in filing the suit.It was further stated by the court that immunity from suit is granted only because of the fact thatthe Commission has a multitude of task.
Immunity for suit on members of the PCGG and other publicofficers is available only if such officers are acting in good faith and in the performance of their duty.If the acts
done are tainted with bad faith or in excess of authority they can be held liable personally for damages.In the case at bar the Sol. Gen. exceeded his authority
and his act is tainted with bad faith by filing baseless suit against Enrile. His office does not give him the license to prosecute recklessly to theinjury of another.
Thus he is made liable fro his actions in the opinion of the court
FRANCISCO M. LECAROZ and LENLIE LECAROZ v. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES
DOCTRINE: The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is
usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and
qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but
the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law.
NATURE: Review of Sandiganbayan Decision
FACTS: Red filed with the Office of the Ombudsman several criminal complaints against Lecaroz father and son arising from the refusal of the two officials to let him
assume the position of KB sectoral representative.
Lecaroz father and son, were convicted by the Sandiganbayan of 13 counts of estafa through falsification of public documents. They now seek a review of their conviction
as they insist on their innocence.
ISSUES: 1) WON Red had validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assemblywoman Reyes; 2) WON
the tenure of accused Lenlie as president of the KB and his coterminous term of office as KB representative to the SB had accordingly expired; If yes - WON Lenlie could
no longer occupy the office despite the vacancy therein, in a holdover capacity; 3) WON under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the
pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie was legally entitled and even mandated to continue in office in a
holdover capacity; if not – WON accused Lenlie acted in good faith and committed merely an error of judgment, without malice and criminal intent; 4) WON the accused had
committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been
convicted required criminal intent and malice as essential elements
HELD: Petition is meritorious. 1) NO. Red had not validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then
Assemblywoman Reyes on 27 September 1985. Under the provisions of the Administrative Code then in force, members of the then Batasang Pambansa were not
authorized to administer oaths. It was only after the effectivity of RA No. 6733 that members of both Houses of Congress were vested for the first time with the general
authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Red before a member of the Batasang Pambansa who had no authority to
administer oaths, was invalid and amounted to no oath at all.
2) The tenure of accused Lenlie as president of the KB and his coterminous term of office as KB representative to the SB had expired. However, Lenlie could occupy the
office as president of the KB and his coterminous term of office as KB representative to the SB in a holdover capacity. The concept of holdover when applied to a public
officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a
fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become
vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and
qualified, even though it be beyond the term fixed by law. It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie remained KB
representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a de facto officer entitled to receive the salaries and
all the emoluments appertaining to the position.
3) The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars confirmed the right of incumbent KB Federation Presidents to hold and
maintain their positions until duly replaced either by the President herself or by the Interior Ministry.
4) Prudence and good faith impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.
Joseph Estrada vs Macapagal & Desierto
De Jure vs De Facto President
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the president. From the beginning of Erap’s term, he was
plagued by problems that slowly but surely eroded his popularity.  His sharp descent from power started on October 4, 2000.  Singson, a longtime friend of the Estrada,
went on air and accused the Estrada, his family and friends of receiving millions of pesos from jueteng lords. The exposé immediately ignited reactions of rage. On January
19, the fall from power of the petitioner appeared inevitable.  At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. January 20 turned to be the day of surrender. On January 22, the Monday after taking her oath, respondent
Arroyo immediately discharged the powers and duties of the Presidency.  After his fall from the pedestal of power, the Erap’s legal problems appeared in clusters.  Several
cases previously filed against him in the Office of the Ombudsman were set in motion.
ISSUE: Whether or not Arroyo is a legitimate (de jure) president.
HELD: The SC holds that the resignation of Estrada cannot be doubted.  It was confirmed by his leaving Malacañang.  In the press release containing his final statement,
(1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the
Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation.  He did not say he was leaving the Palace due to any kind
of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve
them.  Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that
may come ahead in the same service of our country.  Estrada’s reference is to a future challenge after occupying the office of the president which he has given up; and (5)
he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.  Certainly, the national spirit of reconciliation and
solidarity could not be attained if he did not give up the presidency.  The press release was petitioner’s valedictory, his final act of farewell.  His presidency is now in the
past tense. Even if Erap can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern
temporarily.  That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government
cannot be reviewed by this Court.
Collantes vs. CA

GEN. MANAGER, PPA V. MONSERATE | Salvador-Guttierez, 2002

FACTS
 PPA underwent reorganization. Monserate applied for a permanent position of Manager II of Resource Management Division and she was appointed such among 6
other contestants. However, upon the protest of the 2nd placer (Anino), Julia’s appointment was rendered ineffective without any explanation. She was not even
notified of any hearing for the said replacement. She was reappointed to a lower position (Administrative Officer) with lower salary grade (SG 15) than what she was
already receiving.
 Respondent filed a motion for reconsideration but the same was denied by the CSC
 respondent filed with the Court of Appeals a petition for review
 the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC.
 It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a
demotion violative of her constitutional right to security of tenure and due process.
 Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition
ISSUE(1) WON there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted
as Administrative Officer
(2) WON respondent is entitled to backpay differentials.
HELD/RATIO
(1) NO. The grounds for respondent’s demotion are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her
demotion. The PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent.
 Her demotion, tantamount to a revocation of her appointment as Manager II, is a patent violation of her constitutional rights to security of tenure and due process.
Once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely
equitable, right to the position which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the
appointment, or by removal, except for cause, and with previous notice and hearing.
 when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to
the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was
void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio.
(2) YES. Backwages are in favor of respondent. While petitioner Anino’s appointment to the contested position is void, as earlier discussed, he is nonetheless considered a
de facto officer during the period of his incumbency. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an
appointment or election, even though such appointment or election may be irregular.
 In Monroy vs. Court of Appeals, Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the
time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title,
takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure. In the later
 case of Civil Liberties Union vs. Executive Secretary Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de
jure officer.
 In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even
if he occupied the office in good faith.
 This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. While her assumption to said lower position and her
acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full
backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as
Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference
between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he
wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.
 SANGGUNIANG BAYAN OF SAN ANDRES VS. CA
 284 SCRA 270
 Petitioner: Sangguniang Bayan of San Andres, Catanduanes
 Respondents: Court of Appeals and Augusto Antonio
 Ponente: J. Panganiban
 FACTS:
 Respondent Antonio was elected barangay captain and was later elected president of the Association of Barangay Councils (ABC) for the Municipality of San
Andres, Catanduanes.
 Meanwhile, the then Secretaryof the DILG declared the election for the president of the FABC void for lack of a quorum. Then, the DILG secretary designated
private respondent as a temporary member of the SangguniangPanlalawigan.
 In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He tendered his resignation to the Mayor, with copies
furnished to the governor, the DILG and the municipal treasurer.
 However, the ruling of DILG Secretary was reversed by the SC, consequently making the office of the respondent deemed as void.
 Antonio wrote to the members of the Sangguniang Bayan advising them of his re-assumption of his original position, duties and responsibilities as sectoral
representative therein, but the Sanggunianrefused.
 The respondent sought from the DILG a definite ruling relative to his right to resume his office as member of the Sangguniang Bayan.The DILG clarified that his
designation was an exercise of his ex-officio capacity and therefore holding a position of such does not abandon or vacate current office. Hence, designation
implies temporariness.
 However, the Sangguniang Bayan refused to acknowledge.
 ISSUES:
 Whether or not respondent’s resignation as ex-officio member of Petitioner Sangguniang Bayan of San Andres, Catanduanes is deemed complete and valid so
as to terminate his official relation thereto?
 HELD:
 No. Resignation is the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete
resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper
authority.
 Private respondent, therefore, should have submitted his letter of resignation to the President or to his alter ego, the DILG secretary. Although he supposedly
furnished the latter a copy of his letter, there is no showing that it was duly received, much less that it was acted upon.The third requisite being absent, there
was therefore no valid and complete resignation.

Civil Liberties Union v Exec. Secretary, 194 Scra 317

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