2. CSC v.

Darangina

Facts: Engr. Ali P. Darangina was a development management

officer V in the Office of Muslim Affairs. On September 25, 2000, he
was extended a temporary promotional appointment as director III,
Plans and Policy Services, in the same office. On October 11, 2000,
the Civil Service Commission approved this temporary
appointment effective for 1 year from the date of its issuance
unless sooner terminated. On October 31, 2000, newly appointed
OMA Executive Director Acmad Tomawis terminated Daranginas
temporary appointment on the ground that he is not a career
executive service eligible. Tomawis then appointed Alongan Sani
as director III. But he is not also a career executive service eligible.
Thus, the CSC disapproved his appointment, stating that
respondent could only be replaced by an eligible. On appeal, the
CSC 2001 sustained the termination of Daranginas temporary
appointment but ordering the payment of his salaries from the
time he was appointed on September 25, 2000 until his separation
on October 31, 2000. Darangina filed a motion for reconsideration.
CSC granted the same with modification in the sense that
Darangina should be paid his backwages from the time his
employment was terminated on October 11, 2000 until
September 24, 2001, the expiration of his one year
temporary appointment. On April 3, 2002, Darangina filed a
motion for partial reconsideration, praying for his reinstatement as
director III and payment of backwages up to the time he shall be
reinstated but the CSC denied the same for being a second motion
for reconsideration which is prohibited. Darangina then filed a
petition for review with the Court of Appeals but it was dismissed
for his failure to implead the OMA Executive Director and the
incumbent of the disputed position. Darangina filed a motion for
reconsideration. CA reconsidered its previous ruling and ordered
his reinstatement as well as payment of backwages. CSCs MR was
denied.

Issue: Whether Darangina should be reinstated

Held: No. a permanent appointment can issue only to a person

who possesses all the requirements for the position to which he is
being appointed, including the appropriate eligibility. Differently
stated, as a rule, no person may be appointed to a public office
unless he or she possesses the requisite qualifications. The
exception to the rule is where, in the absence of appropriate
eligibles, he or she may be appointed to it merely in a temporary
capacity. Such a temporary appointment is not made for the
benefit of the appointee. Rather, an acting or temporary
appointment seeks to prevent a hiatus in the discharge of official
functions by authorizing a person to discharge the same pending
the selection of a permanent appointee. In Cuadra v. Cordova, the
Supreme Court defined a temporary appointment as "one made in
an acting capacity, the essence of which lies in its temporary
character and its terminability at pleasure by the appointing
power." Thus, the temporary appointee accepts the position with
the condition that he shall surrender the office when called upon to
do so by the appointing authority. Under Section 27 (2), Chapter 5,
Subtitle A, Title I, Book V of the same Code, the term of a
temporary appointment shall be 12 months, unless sooner
terminated by the appointing authority. Such pre-termination of a
temporary appointment may be with or without cause as the
appointee serves merely at the pleasure of the appointing power.
Under the Revised Qualifications Standards prescribed by
the CSC, career executive service eligibility is a necessary
qualification for the position of director III in Plans and Policy
Services, OMA. It is not disputed that on September 25, 2000,
when respondent was extended an appointment, he was not
eligible to the position, not being a holder of such eligibility. Hence,
his appointment was properly designated as "temporary." Then on
October 31, 2000, newly-appointed OMA Executive Director
Tomawis recalled respondents temporary appointment and
replaced him by appointing Alongan Sani. It turned out, however,
that Sani is not likewise qualified for the post. A game of musical

chairs then followed. Sani was subsequently replaced by Tapa

Umal, who in turn, was succeeded by Camad Edres, and later, was
replaced by Ismael Amod. All these appointees were also
disqualified for lack of the required eligibility. CA ruled that such
replacements are not valid as the persons who replaced
respondent are not also eligible. Also, since he was replaced
without just cause, he is entitled to serve the remaining term of his
12-month term with salaries. The SC has ruled that where a noneligible holds a temporary appointment, his replacement by
another non-eligible is not prohibited. Moreover, in Achacoso the
Court held that when a temporary appointee is required to
relinquish his office, he is being separated precisely because his
term has expired. Thus, reinstatement will not lie in favor of
respondent. Starkly put, with the expiration of his term upon
his replacement, there is no longer any remaining term to
be served. Consequently, he can no longer be reinstated.
As to whether respondent is entitled to back salaries, it is
not disputed that he was paid his salary during the entire twelvemonth period in spite of the fact that he served only from
September 25, 2000 to October 31, 2000, or for only one month
and six days. Clearly, he was overpaid.

LEAH Y. APURILLO, petitioner,

vs.
CIVIL SERVICE COMMISSION and VIRGINIA L.
TALDE, respondents.
Vic Tan for petitioner.
The Solicitor General for respondents.

BELLOSILLO, J.:
This is a petition to annul and set aside Resolution No-92-555 of
the Civil Service Commission 1 dated 10 April 1992 which affirmed
the decision of the Secretary of Public Works and Highways dated
25 September 1990 sustaining the protest of private respondent
Virginia L. Talde against the promotional appointment of petitioner
Leah Y. Apurillo and reverting the latter to her previous position of
Public Relations Officer.
On 1 July 1990, Engr. Isidro Mariano, as Officer-in-Charge (OIC) of
Region VIII, Department of Public Works and Highways (DPWH),
appointed petitioner to the position of Administrative Officer III of
the Region. Upon learning of the appointment, private respondent
filed a letter-protest with the DPWH Complaints Committee.
On 25 September 1990, the Committee submitted a memorandum
for then DPWH Secretary Fiorello R. Estuar recommending that, the
protest of private respondent be upheld and that petitioner be
reverted to her former position of Public Relations Officer.
Secretary Estuar approved this recommendation.

3. Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 105112 October 13, 1993

On 21 November 1990, petitioner filed a motion for

reconsideration of the Secretary's decision. On 5 March 1991,
Undersecretary Teodoro T. Encarnacion, Officer-in-Charge of DPWH,
denied the motion. 2
On 19 June 1991, petitioner appealed to the Merit Systems
Protection Board (MSPB). On 27 November 1991, MSPB dismissed
the appeal for lack of merit. 3 It likewise denied petitioner's motion

for reconsideration. Forthwith, petitioner went to the Civil Service

Commission (CSC) for relief.
On 10 April 1992, CSC issued Resolution No. 92-555 dismissing the
appeal. It ruled that protestant Virginia L. Talde was fully qualified
for the contested position; that petitioners appointment was
voidable because the OIC DPWH Regional Director had no power to
appoint her without authority of the DPWH Secretary; and, that
pursuant to the Administrative Code of 1987, the Secretary had
the power to nullify the appointment issued by the OIC Regional
Director. Hence, the present, recourse of petitioner.
Petitioner imputes several errors to CSC, namely: (1) in rating
private respondent higher than she; (2) in holding that an
appointment validly extended to one possessing all the required
qualifications and eligibility can be nullified on the ground that
someone else allegedly better qualifiedshould be preferred; and,
(3) in holding that petitioner's appointment is voidable. 4
Considering that this is a petition for certiorari, the only issue to
resolve is whether CSC a committed grave abuse of discretion,
amounting to excess or lack of jurisdiction in issuing its disputed
resolution.
The contested position is Administrative Officer III, Region VIII,
DPWH, a second level position in the career service. 5 Under Sec. 7,
par. (6), of the Administrative Code of 1987, 6 the Department
Secretary has the power to appoint employees to positions in the
second level in the regional offices of the Department. The CSC
therefore did not commit any grave abuse of discretion in holding
that the DPWH Secretary, not the OIC Regional Director, is the
appointing authority.
Petitioner argues that on 5 January 1990 the DPWH Secretary
issued Department Order No. 10 delegating the power to appoint
personnel to the second level positions to the then OIC, Regional
Director, DPWH Region VIII. 7She vigorously insists that the real
appointing authority is the OIC Regional Director otherwise the
said delegation would be meaningless.
Her arguments are without basis. Department Order No. 10 reads:

DESIGNATION
OF
ENGR.
ISIDRO
OFFICER-IN-CHARGE
REGIONAL
OF REGION VIII, TACLOBAN CITY

MARIANO
AS
DIRECTOR

In the interest of the service, you are hereby designated as Officerin-Charge Regional Director of Region VIII, Tacloban City, vice Dir.
Abdulbarri Ramos.
By virtue of this Order, you are hereby authorized to perform the
duties and assume the responsibilities appurtenant to the position
of Regional Director thereat.
This Order supersedes previous issuances to the contrary and shall
take effect February 1, 1990.
FIORELLO
Secretary

R.

ESTUAR

Nowhere in the aforequoted Order can we find any support for

petitioners allegations. While the law grants to the Regional
Director the authority to appoint personnel in the Regional Office,
such power only covers positions in the first level and casual and
seasonal employees. 8
Even granting arguendo that a delegated authority to appoint
personnel to positions in the first level was given, such authority is
not absolute. Any promotional appointment made pursuant to this
authority is still subject to review by the DPWH Secretary. Section
28 of the Administrative Code of 1987 provides
Sec. 28. Review of Acts of Regional Director. Nothing in the
preceding Section shall be construed as a limitation on the power
of the Secretary to review and modify, alter or reverse any action
of the Regional Director, or to initiate promotions and transfers of
personnel from one region to another.
The aforequoted provision underscores the Secretary's power of
supervision and control of his department. The term "control"
implies the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done and to substitute the
judgment of the former for that of the latter. 9 This power is derived
not only from the Administrative Code of 1987 but also mainly

from a provision in the Constitution explicitly ordaining that the

President shall have control of all the executive departments,
bureaus and offices. 10 As alter egos of the President, the
Department Secretaries exercise direct control and supervision
over all bureaus and offices under their jurisdiction. 11
It appears from the records that the DPWH Secretary treated the
appointment issued by the OIC Regional Director as a
recommendatory indorsement of petitioner for the contested
position. In view of the protest of private respondent, the
Secretary, through the DPWH Complaints Committee made a
meticulous review of the qualifications of the parties involved as
they were the next-in-rank employees to the position of
Administrative Officer III.
In its Memorandum to then Secretary Estuar dated 25 September
1990, 12 the Committee reported.
The within papers show that Ms. Talde was first appointed as a
permanent Training Officer on April 1, 1980, in the then MPW,
Region VIII. She was reappointed to the same position during the
MPW and MPH merger in 1982, and again retained the same after
the 1987 reorganization effective July 1, 1988. On July 1, 1989, her
position was retitled as Human Resource Management Officer I
under the Standardization Law. Her services in other government
agencies include: Social Worker (Permanent) 2-1-78 to 3-31-80,
MSSD, Region VIII; and Census Enumerator (Contractual), NCSO,
May 2 to October 1975, Tacloban.
Talde holds the degrees in BSSW, LLB, and a graduate in BSE.
Likewise, she has earned 6 units in Master Management. In
addition, Ms. Talde is credited with 12 government trainings
attended. Aside from her Career Subprofessional and Professional
CSC examinations, Ms. Talde passed the Social Work Licensure,
and Professional Board Examinations for Teachers. Her
performance rating under MORE for the period concerned is Very
Satisfactory.
Protestee Apurillo, on the other hand, joined the service on August
1, 1973 as a Secondary School Teacher (permanent) at the Leyte
National High School. She transferred to the MPW, Region VIII, and

was extended to the regular position of Public Relations Officer I,

effective April 1, 1980. She retained the same position in the past
two DPWH reorganizations, and was promoted to Administrative
Officer III on July 1, 1990.
A BSE graduate, Ms. Apurillo has earned as well, 30 units in MA in
Literature; 33 units in English; and 12 units in Public
Administration. Moreover, aside from her ten (10) relevant
seminars attended, Ms. Apurillo is credited with 432 hours of
training in Executive Development (DAP), and 648 hours in the
Future Leaders' Program (NDC-CSC). Protestee Apurillo is a
Teachers' Board Examination eligible and has been rated Very
Satisfactory on her performance for the period concerned.
xxx xxx xxx
As HRMO I, protestant Talde belongs to the Training Section under
the Administrative Division. Whereas protestee Apurillo as a former
PRO, is identified with and under the direct supervision of the
Regional Director. Both positions though being on the same grade
level (11) may be considered next-in-rank to the contested
position for purposes of selection on an agency-wide basis as
required by the Civil Service Law and Rules.
Hence, under the circumstances, both contestants being qualified
and competent next-in-rank rank employees, the following
provision of Rule V, Section 9, of the CSC Rules on Personnel
Actions and Policies is hereby quoted, "Whenever there are two or
more employees who are next-in-rank, preference shall be given to
the employee who is most competent and qualified and has the
appropriate civil service eligibility. In cases where all meet the
requisites for the position, preference shall be given to the
employee in the organizational unit where the vacant position is or
in the Department or agency where the vacancy is, in the case of
second level positions." Hence, protestant Talde being the
employee next-in-rank, qualified and competent, in the
Administrative Division where the contested position belongs, has
the better claim of preference for appointment to the position in
question, pursuant to said provision.

It is then recommended that the protest of private respondent, be

sustained and petitioner reverted to her former position as Public
Relations Officer.
Further,
the
Committee,
upon
petitioner's
motion
for
reconsideration, went as far as conducting another system of
rating the contenders. However, the same result adverse to
petitioner surfaced
On the issue of the alleged erroneous ratings given by the Regional
Promotion Board, the Committee in fairness to protestee/appellant
Apurillo re-rated the contestants with the use of the Personnel
Evaluation and Rating System under Department Order No. 30, s.
1987. Under the rating system, Talde got 67.93%, and Apurillo
obtained 67.78%.
Moreover, a review of the system of ranking positions in this
Department shows the following positions as next in rank to
Administrative III in DPWH Regional Office No. VIII:

HRMO
I
HRMO II District Office/RES

Regional

Office

Hence, Ms. Talde being the employee considered next-in-rank to

the contested position, may claim preference for appointment
thereto pursuant to the CS Law and Rules. 13
Acting upon all these findings, the DPWH Secretary approved the
above recommendations.
We find no evidence of irregularity or arbitrariness in the action
taken by the then DPWH Secretary. The head of an agency who is
the appointing power is the one most knowledgeable to decide
who can best perform the functions of the office. 14 The Secretary's
decision therefore must be respected.
Petitioner however contends that she is better qualified than
private respondent because she readily meets the minimum
qualification requirements without resorting to the process of
substitution. She adds that the process of offsetting deficiencies
has been disallowed by no less than the CSC in its Memorandum
Circular No. 42, Series of 1991, which states that "Effective January

1, 1993: a. No substitution shall be allowed for the education and

experience requirements of specific positions in government. If
graduation from a college course is necessary for appointment to
positions in the second level (Professional), deficiencies in college
education may no longer be substituted with experience or viceversa." 15
We note that the effectivity date of Memorandum Circular No. 42,
Series of 1991, is 1 January 1993. This case came up in 1990 yet.
Consequently, the rule on substitution could still be availed of by
the DPWH Secretary. He alone has the discretion to decide when to
resort to the necessity of interchanging education with experience
and vice versa since he is in the best position to determine the
needs his department and how to satisfy those needs.16
Finally, petitioner submits that her appointment was already
approved by the CSC and that, in view thereof, she already
assumed office and discharged the duties and responsibilities of
the position. She then concludes that the CSC could no longer
disturb her appointment since to do so would violate the security
of tenure provision in theConstitution. 17
While petitioner asserts that her appointment was already
approved by CSC, and by virtue of which she had already assumed
the contested position, she has not presented any copy of such
appointment to support the meat of her contention. We have
searched the records and not even a machine copy thereof can be
found. Under the circumstances, we cannot help being drawn to
the conclusion that if presented it would negate her cause. As
adverted to earlier, petitioner's appointment was irregular and
inefficacious as the same was not issued or approved by the DPWH
Secretary. As a result, she cannot claim the right to a security of
tenure for want of a legal basis.
In fine, we find no valid reason to reverse the CSC resolution dated
10 April 1992, it being shown that the same is in full accord with
our
ruling
enunciated
in Luego
v. Civil
Service
Commission, 18 penned by Senior Associate Justice Isagani SA.
Cruz, that appointment is an essentially discretionary power and
must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should

possess the qualifications required by law. If he does, then the

appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. Indeed, this is a
prerogative of the appointing authority which he alone can decide,
absent any grave abuse in the exercise thereof.
WHEREFORE, finding no grave abuse of discretion, the petition is
DISMISSED.
SO ORDERED.

4. LIBAN ET. AL. vs. GORDON ET. AL

GR. 175352 JULY 15, 2009 | LEONARDO-DE CASTRO, J.:
[FACTS]
1. Petitioners Liban, et al., officers of the Board of Directors of
the QC Red Cross Chapter, filed with the SCPetition to
Declare Richard J. Gordon as Having Forfeited His
Seat in the Senate who was elected Chairman of the
Philippine National Red Cross (PNRC) Board of Governors
during his incumbency as Senator.
2. When Gordon accepted the chairmanship of the PNRC
Board of Governors, he ceased to be a member of the
Senate pursuant to Sec. 13, Article VI of the
Constitution, which provides that [n]o Senator . . .
may hold any other office or employment in the
Government, or any subdivision, agency, or
instrumentality thereof, including
governmentowned
or
controlled
corporations
or
their
subsidiaries, during his term without forfeiting his
seat.
3. Petitioners cited the case of Camporedondo vs. NLRC,
G.R. No. 129049, decided August 6, 1999, which held
that the PNRC is a GOCC.
4. SC voted 7-5 held that the office of the PNRC Chairman
is NOT a government office or an office in a GOCC for
purposes of the prohibition in Sec. 13, Article VI of the 1987
Constitution.

5. The PNRC Chairman is elected by the PNRC Board of

Governors; he is not appointed by the President or by any
subordinate government official.
6. PNRC is NOT a GOCC because it is a privately-owned,
privately-funded, and privately-run charitable organization
and because it is controlled by a Board of Governors fourfifths of which are private sector individuals.
7. Therefore, respondent Gordon did not forfeit his legislative
seat when he was elected as PNRC Chairman during his
incumbency as Senator.
8. The Court however held further that the PNRC Charter, R.A.
95, as amended by PD 1264 and 1643, is void insofar as it
creates the PNRC as a private corporation
since Section 7, Article XIV of the 1935 Constitution
states that [t]he Congress shall not, except by
general law, provide for the formation, organization,
or regulation of private corporations, unless such
corporations are owned or controlled by the
Government or any subdivision or instrumentality
thereof.
9. The Court directed the PNRC to incorporate under the
Corporation Code and register with the SEC if it wants to be
a private corporation.
10. Decision read: we declare that the office of the Chairman of
the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution.
11. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10,
11, 12, and 13 of the Charter of the Philippine National Red
Cross, or Republic Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID because they
create the PNRC as a private corporation or grant it
corporate powers.
12. Respondent Gordon filed a Motion for Clarification
and/or for Reconsideration of the Decision. The PNRC
likewise moved to intervene and filed its own Motion for
Partial Reconsideration. They basically questioned the
second part of the Decision with regard to the

pronouncement on the nature of the PNRC and

the constitutionality of some provisions of the PNRC
Charter.
[ISSUE] W/N it is correct for the Court to have passed upon and
decided on the issue of the constitutionality of the PNRC charter?
[RULING] [ANSWER] NO!
[LAW/JURIS] According
Resources, Inc,

to

Jurisprudence:

Alvarez

v.

PICOP

This Court will not touch the issue of unconstitutionality

unless it is the very lis mota. It is a well-established rule that a
court should not pass upon a constitutional question and decide a
law to be unconstitutional or invalid, unless such question is raised
by the parties and that when it is raised, if the record also presents
some other ground upon which the court may [rest] its judgment,
that course will be adopted and the constitutional question will be
left for consideration until such question will be unavoidable.
[APPLICATION]
1. It was not correct for the Court to have decided on
the constitutional issue because it was not the very
lis mota [cause of the suit or action] of the case.
2. The PNRC is sui generis [unique] in nature; it is
neither strictly a GOCC nor a private corporation.
3. The Court should have exercised judicial restraint on this
matter, especially since there was some other ground upon
which the Court could have based its judgment.
4. As a consequence of the Decision, to suddenly reorganize
and incorporate under the Corporation Code, after more
than sixty (60) years of existence in this country.
[CONCLUSION]
R.A. No. 95 remains valid and constitutional in its entirety.
The Court MODIFIED the dispositive portion of the Decision by
deleting the second sentence, to now read as follows:
WHEREFORE, we declare that the office of the Chairman
of the Philippine National Red Cross is not a government office or
an office in a government-owned or controlled corporation for

purposes of the prohibition in Section 13, Article VI of the 1987

Constitution.]
5. Light Rail Transit Authority vs. Venus, Jr.
March 24, 2006
485 SCRA 361
Puno, J.
Facts: LRTA (Light Rail Transit Authority) entered into a 10-year
agreement with METRO which states that METRO shall manage
and operate the rail way transit system in Metro Manila. Pursuant
to this agreement, METRO hired employees which included the
private respondents.
Metro, then, entered into a collective
bargaining agreement with PIGLAS-METRO. METRO also executed a
Deed of Sale for the shares of stocks in favor of LRTA. However,
despite the execution of such Deed of Sale, METRO and LRTA still
proceeded with their original agreement- METRO acting as a
manager and operator of LRTA.
The Union, due to a deadlock, then filed a Notice of Strike where
the employees picketed in various substations which caused the
operations of the rail way transit to be paralyzed. Despite the
assumption of jurisdiction of the Secretary of the Department of
Labor and the various notices posted and published, the
employees still failed to report and return to their work. Hence,
they were considered dismissed from employment.
The respondents then filed a complaint for illegal dismissal against
petitioner LRTA and METRO. The Labor Arbiter rendered a decision
in favor of the respondent adjudging that the said respondents are
entitled to money claims against both LRTA and METRO and was
also illegally dismissed. The NLRC reversed and set aside the
decision of the labor arbiter. The Court of Appeals, however,
reinstated the decision of the Labor Arbiter. Hence the current
petition.
The petitioner LRTA contends that there exists no employeremployee relationship between it and the respondents for it is
METRO that hired them pursuant to the 10-year agreement METRO
and LRTA entered into. It also argues that since it is a governmentowned and controlled corporation with an original charter, the
provisions of the Labor Code is not applicable upon them and that
by being a GOCC, it is the Civil Service Commission that has
jurisdiction over them not DOLE.

On the other hand, respondents contend that although METRO is

not fully-owned by LRTA, the fact that METRO is a mere conduit of
LRTA is sufficient enough to warrant the piercing of the veil of
corporate personality of LRTA.
Issue: Whether or not LRTA is subject to the jurisdiction of the
Department of Labor and the provisions of the Labor Code thereby
allowing the respondents to collect money claims from the
petitioner.
Ruling: The Supreme Court ruled that LRTA is a governmentowned and controlled corporation which means that it is not to be
subjected under the jurisdiction of the DOLE and the provisions of
the Labor Code. It is the Civil Service Commission that has
jurisdiction over LRTA. As expressly stated in Section 2 (1) of
Article 9-B of the 1987 Constitution, civil service embraces all
branches, subdivisions, instrumentalities and agencies of the
government,
including
government-owned
and
controlled
corporations with original charters. It is submitted that a GOCC
with an original charter is a GOCC that is created by a special law
and not by the general corporation law. And, as a rule, GOCCs with
an original charter (created by a special law) is under the
jurisdiction of the Civil Service Commission and GOCCs created
under the general corporation law is under the jurisdiction of the
Department of Labor. Since LRTA is a government-owned and
controlled corporation created by a special law, EO 603,
jurisdiction falls with the Civil Service Commission.
However, in the case of METRO, it is a government-owned and
controlled corporation without an original charter and which is
created under the general corporation law and is therefore, subject
to the jurisdiction of the Department of Labor and the provisions of
the Labor Code.
The Supreme Court deemed the respondents as employees of
METRO and therefore they are subject to the rights and privileges
granted by the Labor Code. This is because despite the acquisition
of the shares of stock of METRO by LRTA, the respondents
remained to be employees of METRO for there was never an
intention to make them employees of LRTA.
LRTA vs. Venus
Gr. 163782 24 march 2006
Facts:

This is a consolidated petitions of Light Rail Transit

Authority (LRTA) and Metro Transit Organization, Inc. (METRO),
seeking the reversal of the Decision of the Court of Appeals
directing them to reinstate private respondent workers to their
former positions without loss of seniority and other rights and
privileges, and ordering them to jointly and severally pay the latter
their full back wages, benefits, and moral damages.
Petitioner LRTA is a government-owned and controlled
corporation, on the other hand is Petitioner METRO, formerly
Meralco Transit Organization, Inc., was a qualified transportation
corporation duly organized in accordance with the provisions of the
Corporation Code, registered with the Securities and Exchange
Commission, and existing under Philippine laws.
Petitioner LRTA constructed a light rail transit system from
Monumento in Kalookan City to Baclaran in Paraaque, Metro
Manila. To provide the commuting public with an efficient and
dependable light rail transit system, petitioner LRTA, after a
bidding process, entered into a ten (10)-year Agreement for the
Management and Operation of the Metro Manila Light Rail Transit
System from June 8, 1984 until June 8, 1994 with petitioner METRO
Pursuant to the Agreement, petitioner METRO hired its own
employees, including herein private respondents. Petitioner METRO
thereafter entered into a collective bargaining agreement
with Pinag-isang Lakas ng Manggagawa sa METRO, Inc. National
Federation of Labor, otherwise known as PIGLAS-METRO, INC.
NFL KMU (Union), the certified exclusive collective bargaining
representative of the rank-and-file employees of petitioner METRO.
On June 9, 1989 LRTA and METRO executed a Deed of Sale
where petitioner LRTA purchased the shares of stocks in petitioner
METRO. However, petitioners LRTA and METRO continued with their
distinct and separate juridical personalities. Hence, when the
above ten (10)-year Agreement expired on June 8, 1994, they
renewed the same, initially on a yearly basis, and subsequently on
a monthly basis.
July 25, 2000, the Union filed a Notice of Strike with the
National Conciliation and Mediation Board National Capital
Region against METRO on account of a deadlock in the collective
bargaining negotiation. On the same day, the Union struck. The
power supply switches in the different light rail transit substations
were turned off. The members of the Union picketed the various
substations. They completely paralyzed the operations of the
entire light rail transit system. As the strike adversely affected the
mobility of the commuting public, then Secretary of Labor
Bienvenido E. Laguesma issued on that same day an assumption
of jurisdiction order directing all the striking employees "to return
to work immediately upon receipt of this Order and for the

Company to accept them back under the same terms and

conditions of employment prevailing prior to the strike.
Despite the issuance, posting, and publication of the
assumption of jurisdiction and return to work order, the Union
officers and members, including herein private respondent
workers, failed to return to work. private respondents, Perfecto
Venus, Jr., Bienvenido P. Santos, Jr., Rafael C. Roy, Nancy C. Ramos,
Salvador A. Alfon, Noel R. Santos, Manuel A. Ferrer, Salvador G.
Alinas, Ramon D. Lofranco, Amador H. Policarpio, Reynaldo B.
Gener, and Bienvenido G. Arpilleda, were considered dismissed
from employment. Meanwhile the agreement between LRTA and
METRO expired and was not renewed and the LRTA management
instead took over the operations the private respondents filed a
complaint for illegal dismissal before the NLRC
Labor Arbiter Luis D. Flores rendered a consolidated
judgment in favor of the private respondent workers declaring that
the complainants were illegally dismissed from employment and
ordering their reinstatement to their former positions without loss
of seniority and other rights and privileges.
On appeal, the NLRC found that the striking workers failed to heed
the return to work order and reversed and set aside the decision of
the labor arbiter. The suit against LRTA was dismissed since "LRTA
is a government-owned and controlled corporation created by
virtue of Executive Order No. 603 with an original charter" 10and "it
ha[d] no participation whatsoever with the termination of
complainants employment."11In fine, the cases against the LRTA
and METRO were dismissed, respectively, for lack of jurisdiction
and for lack of merit. Hence, twin petitions for review
on certiorari of the decision of public respondent appellate court
filed by LRTA and METRO which this Court eventually consolidated.
Petitioner LRTA argues that it has no employer-employee
relationship with private respondent workers as they were hired by
petitioner METRO alone pursuant to its ten (10)-year Agreement
for the Management and Operation of the Metro Manila Light Rail
Transit System with petitioner METRO. Private respondent workers
recognized that their employer was not petitioner LRTA when their
certified exclusive collective bargaining representative, the Pinagisang Lakas ng Manggagawa sa METRO, Inc. National Federation
of Labor, otherwise known as PIGLAS-METRO, INC. NFL KMU,
entered into a collective bargaining agreement with petitioner
METRO. Piercing the corporate veil of METRO was unwarranted, as
there was no competent and convincing evidence of any wrongful,
fraudulent or unlawful act on the part of METRO, and, more so, on
the part of LRTA. LRTA further contends that it is a governmentowned and controlled corporation with an original charter,

Executive Order No. 603, Series of 1980, as amended, and thus

under the exclusive jurisdiction only of the Civil Service
Commission, not the NLRC.
On the other hand Private respondent workers, however,
submit that petitioner METRO was not only fully-owned by
petitioner LRTA, but all aspects of its operations and administration
were also strictly controlled, conducted and directed by petitioner
LRTA. And since petitioner METRO is a mere adjunct, business
conduit, and alter ego of petitioner LRTA, their respective
corporate veils must be pierced to satisfy the money claims of the
illegally dismissed private respondent employees.
Issue:

Whether or not the NLRC has jurisdiction over LRTAs

employees or is it the CSC?
Whether or not private respondents were illegally
dismissed?
Held:
The SC agrees with petitioner LRTA. Section 2 (1), Article IX
B, 1987 Constitution, expressly provides that "[t]he civil service
embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or
controlled corporations with original charters." Corporations with
original charters are those which have been created by special law
and not through the general corporation law. In contrast, petitioner
METRO is covered by the Labor Code despite its later acquisition
by petitioner LRTA, SC holds that the employees of petitioner
METRO cannot be considered as employees of petitioner LRTA. The
employees hired by METRO are covered by the Labor Code and are
under the jurisdiction of the Department of Labor and
Employment, whereas the employees of petitioner LRTA, a
government-owned and controlled corporation with original
charter, are covered by civil service rules. Herein private
respondent workers cannot have the best of two worlds, e.g., be
considered government employees of petitioner LRTA, yet allowed
to strike as private employees under our labor laws. Petitioner
LRTA cannot be held liable to the employees of petitioner METRO.
With regard the issue of illegal dismissal, petitioner METRO
maintains that private respondent workers were not illegally
dismissed but should be deemed to have abandoned their jobs
after defying the assumption of jurisdiction and return-to-work
order issued by the Labor Secretary. Private respondent workers,
on the other hand, submit that they could not immediately return

to work as the light rail transit system had ceased its operations.
The contention of the petitioner that the private respondents
abandoned their position is also not acceptable. An employee who
forthwith takes steps to protest his lay-off cannot by any logic be
said to have abandoned his work.
For abandonment to constitute a valid cause for
termination of employment there must be a deliberate, unjustified
refusal of the employee to resume his employment. This refusal
must be clearly established. As we stressed in a recent case, mere
absence is not sufficient; it must be accompanied by overt acts
unerringly pointing to the fact that the employee simply does not
want to work anymore.

6. FUNA v. MECO
G.R. No. 193462/February 4, 2014/ PEREZ, J./ JBMORETO
NATURE
Petition for MANDAMUS
PETITIONERS
DENNIS A.B. FUNA
RESPONDENTS
MANILA ECONOMIC AND CULTURAL OFFICE
and the COMMISSION ON AUDIT

SUMMARY. Because the Philippines subscribes to the One China

Policy of the Peoples Republic of China, it ended its diplomatic
relations with Taiwan. However it continued to maintain an
unofficial relationship with Taiwan through the MECO. Funa asked
COA to furnish him with financial and audit reports of COAs audit of
MECO. COA initially said that MECO was not under its audit
jurisdiction. This prompted Funa to file this petition for mandamus.
COA subsequently sent auditors to Taiwan. Funa argues that MECO
is a GOCC or at least a governmental entity subject to the audit
jurisdiction of COA. MECO argues that it is not a GOCC nor is it a
governmental instrumentality and to categorize it as such would
violate the one china policy of PROC. COA concedes that MECO is
under its audit jurisdiction because of certain fees that MECO
handles which are receivables of DOLE but insists that the case is
moot because it already sent a team to audit MECO. SC ruled that
the case was not moot since it falls under the exceptions. That
MECO is not a GOCC nor is it a governmental entity. MECO is in fact
a sui generis entity. However certain transactions of MECO are
subject to the audit jurisdiction of COA particularly its collection of
Verification fees and Consular fees.
DOCTRINE. The MECO is not a GOCC or government
instrumentality. It is a sui generis private entity especially entrusted
by the government with the facilitation of unofficial relations with
the people in Taiwan without jeopardizing the countrys faithful
commitment to the One China policy of the PROC. However,
despite its non-governmental character, the MECO handles
government funds in the form of the "verification fees" it collects
on behalf of the DOLE and the "consular fees" it collects under
Section 2(6) of EO No. 15, s. 2001. Hence, under existing laws, the
accounts of the MECO pertaining to its collection of such
"verification fees" and "consular fees" should be audited by the
COA
FACTS.
- The Philippines subscribes to the One China Policy of the
Communist Peoples Republic of China (PROC) under the
Joint Communique between RP and PROC.
- The Philippines ended its diplomatic relations with the
government of Taiwan (nationalist Republic of China ) on
June 9 1975.
- Despite this the Philippines and Taiwan maintained an
unofficial relationship facilitated by the Taipei Economic and
Cultural Office for Taiwan and the MANILA ECONOMIC AND
CULTURAL OFFICE(MECO) for the Philippines
- MECO was organized on Dec 16 1997 as a non-stock nonprofit corporation. from then on MECO became the

corporate entity entrusted by the Philipine Government

with maintaining the friendly and unofficial relations with
the People of Taiwan.
In order to carry out its functions, MECO was authorized by
the Government to perform certain consular and other
functions that relate to the promotion, protection and
facilitation of Philippine interests in Taiwan
o At present, MEco oversees the rights and interests of
OFWs in Taiwan, promotes the Philippines as a
tourist and investment destination for the Taiwanese
and facilitates travel of Filipinos and Taiwanese from
Taiwan to the Philippines and vice versa.
Dennis AB Funa wrote to COA requesting for the latest
financial and audit report of MECO. HE invoked his
constitutional right to information on matters of public
concern. He believed that MECO was under the supervision
of DTI and is a GOCC thus subject to the audit jurisdiction of
COA.
COA asst. Commissioner Naranjo issued a memorandum
which stated that MECO is not among the agencies audited
by any of the three clusters of the Corporate Government
Sector.
This prompted Funa to file this mandamus petition in his
capacity as "taxpayer, concerned citizen, a member of the
Philippine Bar and law book author he alleged that COA
neglected its duty under Sec. 2(1) Art IX-D of the
Constitution. He claimed that MECO was a GOCC or at least
a government instrumentality whose funds partake the
nature of public funds.
To support his argument he presented the following points
o It is a non-stock corporation vested with
governmental functions relating to public needs
o It is controlled by the government thru a board of
directors appointed by the Philippine President
o It is under the operational and policy supervision of
DTI
He also compared MECO with the American Institute in
Taiwan. AIT is supposedly audited by the US Comptroller
General.
MECO: prayed for the dismissal of the mandamus petition
on procedural and substantial grounds.
o Procedural: prematurely filed. Funa never demanded
for COA to make an audit. The only action he took
was to request for a copy of the financial and audit
report of MECO. This request was not finally
disposed of by the time the petition was filed

Substantial: MECO is not a GOCC. The desire letter

of the President sends to MECO is merely
recommendatory and not binding on the corporation
(in relation to the election of the Board of MECO). In
the end the members are the ones who elect the
directors and these directors are private individuals
and not government officials. MECO also argued that
the government merely has a policy supervision
over it. The government merely sees to it that the
activities of MECO are in tune with the One China
Policy under the PROC. The day-to-day operations of
MECO are still under the control of the Board.
o It also argued that for MECO to be considered a
GOCC would be a violation of the One China Policy of
the PROC
COA: wanted the petition to be dismissed on procedural
grounds and that the issue is already moot
o Procedural: lacks locus standi Funa wasnt shown to
have been aggrieved or prejudiced by COAs failure
to Audit MECO. Also, that the case violated the
doctrine of hierarchy of Courts. Funa failed to justify
a direct petition to SC
o Moot: COA Chair already sent a team to Taiwan to
audit MECO and other government agencies based
there.
o Although the COA concedes that MECO is within its
jurisdiction, it maintains that MECO is not a GOCC
nor is it a Government instrumentality, instead
MECO is a non-governmental entity.
MECO may still be audited with respect to
Verification Fees. These fees are what MECO
collects from Taiwanese employers. A portion
of these fees are remitted to DOLE. Under
Sec 26 of PD 1445 or the STATE AUDIT CODE
OF THE PHILIPPINES, MECO is a nongovernmental
entity
required
to
pay
government share and is subject to partial
audit
o

ISSUES & RATIO.

Whether MECO is a Governmental entity and is subject to
the audit jurisdiction of COA.
MECO is not a GOCC nor is it a Governmental entity,
however, certain transactions of MECO are subject to the
audit jurisdiction of COA (verification fees and consular
fees)

Procedural issues:
Mootness: the issue is not moot. Despite the existence of
supervening events( the eventual auditing done by COA in Taiwan),
the issue is within the exceptions of rule on dismissal of moot
cases.
-The issue deals with a supposed grave violation of the constitution
( Funa alleged that COA neglected to audit MECO),
-that the issue is of paramount public interest (the failure of COA
to audit MECO if it was supposed to audit MECO shows that COA
failed to fulfill its duties as guardian of the public treasury AND the
status of MECO has a direct bearing on the countrys commitment
to the One China Policy)
-and that it is susceptible to repetition (COA suddenly decided to
audit MECO, unless the issue is decided, the successor of the
current COA chair might decide to not auditing MECO)
Standing: the instant petition raises issues of transcendental
importance
Principle of Hierarchy of Courts: transcendental importance of the
issues raised in the mandamus petition, hence the court waives
this procedural issue
MAIN ISSUE
Jurisdiction of COA
Under SEC 2(1) ART IX-D of the constitution, COA was vested with
the power, authority and duty to examine, audit and settle the
accounts(revenue," "receipts," "expenditures" and "uses of funds
and property") of the following entitites:
- Government , or any of its subdivisions, agencies and
instrumentalities
- GOCCs with original charters
- GOCCs without original charters
- Constitutional bodies, commissions and offices that have
been granted fiscal autonomy under the Constitution and
- Non-governmental entities receiving subsidy or equity,
directly or indirectly from or through the government, which
are required by law or the granting institution to submit to
the COA for audit as a condition of subsidy or equity.
Complementing the constitutional power of the COA to audit
accounts of "non-governmental entities receiving subsidy or equity
xxx from or through the government" is Section 29(1)80 of the

Audit Code, which grants the COA visitorial authority over the
following non-governmental entities:
1. Non-governmental entities "subsidized by the government";
2. Non-governmental entities "required to pay levy or government
share";
3. Non-governmental entities that have "received counterpart
funds from the government"; and
4. Non-governmental entities "partly funded by donations through
the government."
The Administrative Code also empowers the COA to examine and
audit "the books, records and accounts" of public utilities "in
connection with the fixing of rates of every nature, or in relation to
the proceedings of the proper regulatory agencies, for purposes of
determining franchise tax."
SC: MECO is not a GOCC or Governmental Instrumentality
Government instrumentalities are agencies of the national
government that, by reason of some "special function or
jurisdiction" they perform or exercise, are allotted "operational
autonomy" and are "not integrated within the department
framework. They include:
1.regulatory agencies; 2.chartered institutions; 3.government
corporate entities or government instrumentalities with corporate
powers (GCE/GICP); and 4. GOCCs
GOCCs: "stock or non-stock" corporations "vested with functions
relating to public needs" that are "owned by the Government
directly or through its instrumentalities."
By definition, three attributes thus make an entity a GOCC:
first, its organization as stock or non-stock corporation;
second, the public character of its function; and third,
government ownership over the same. Possession of all three
attributes is necessary to deem an entity a GOCC
MECO is a non-stock corporation based on the records and
based on the fact that its earnings are not distributed as dividends
to its members
MECO performs functions with a Public Aspect. MECO was
"authorized" by the Philippine government to perform certain
"consular and other functions" relating to the promotion,
protection and facilitation of Philippine interests in Taiwan. The
functions of the MECO are of the kind that would otherwise be

performed by the Philippines own diplomatic and consular organs,

if not only for the governments acquiescence that they instead be
exercised by the MECO.
The MECO Is Not Owned or Controlled by the Government.
The "desire letters" that the President transmits are merely
recommendatory and not binding on it. Under its by-laws, the
election of its directors are done by the members themselves, its
officers are elected by the directors and members are admitted
through a unanimous board resolution. None of the incorporators
of MECO were government officials and up to this day, none of the
members, directors or officers are government appointees or
public officers designated by reason of their office.
SC: it is a sui generis entity
Since MECO is not a GOCC, it cannot also be either of the other
government
instrumentalities
primarily
because
these
instrumentalities are creatures of law (meaning an actual law was
passed for their creation) while MECO was incorporated under the
Corporation code.

As to the consular fees: The authority behind consular fees is

Section 2(6) of EO No. 15, s. 2001. The said section authorizes the
MECO to collect reasonable fees for its performance of consular
functions. Evidently, and just like the peculiarity that attends the
DOLE verification fees, there is no consular office for the
collection of the consular fees. Thus, the authority for the MECO
to collect the reasonable fees, vested unto it by the executive
order (EO No. 15, s. 2001)
NOTES.
Just in case sIr asks who Dennis AB FUNA is, Funa is the chair of
the Civil Service Commission appointed by then president GMA.
But this fact wasnt mentioned in this case. His request with COA
was not done in his capacity as the CSC chair. He just appeared
out of nowhere asking for the records.

The reason behind it being under the supervision of the DTI is

because its functions may result in it engaged in dealings or
activities that can directly contradict the Philippines commitment
to the One China Policy. This scenario can be avoided if
theExecutive exercises some sort of supervision over it. But this
aspect was not questioned by the petitioner, so this was deemed
irrelevant to the issue by the SC.
Certain accounts may be audited by the COA
MECO should be subjected to the auditing of COA as regards its
collection of verification and consular fees.
Pertinent is the provision of the Administrative Code, Section
14(1), Book V thereof, which authorizes the COA to audit accounts
of nongovernmental entities required to pay xxx or have
government share but only with respect to funds xxx coming
from or through the government. The said fees collected by MECO
are receivables of DOLE.
As to the verification fees("service fee for the verification of
overseas employment contracts, recruitment agreement or special
powers of attorney"): Under Section 7 of EO No. 1022, DOLE has
the authority to collect verification fees. But it entered into a series
of MoA with MECO authorizing the latter to collect such fees since
the PH does not have an official post in Taiwan.

7. Abila v. CSC
Facts:
On 1 September 1987, Amado Villafuerte retired from his position
as Administrative Officer IV in the Health Department of the City
Government of Quezon City. Then Quezon City Officer-in-Charge
Brigido Simon, Jr. appointed Alex Abila as Villafuerte's successor.
Abila who had theretofore been the Acting Assistant Civil Security
Officer, Civil Intelligence and Security Department of the Quezon
City Government, assumed the Administrative Officer IV position
on 2 December 1987.
Florentina Eleria, Administrative Officer III of the Health
Department, Quezon City Government, filed a protest with the
Merit System Protection Board in respect of Abila's appointment.

The Board indorsed the protest to the new Quezon City Officer-inCharge, Reynaldo Bernardo, who rendered a decision dismissing
the protest.
Eleria appealed to the MSPB. MSPB revoked Abila's appointment
and directed the Quezon City Officer-in-Charge or Mayor to appoint
Eleria in lieu of Abila. It found that both Abila and Eleria met the
minimum eligibility and education requirements for Administrative
Officer IV, but ruled that Eleria had the edge in terms of rank and
experience as an Administrative Officer. It also held that Eleria was
holding a position next in rank to that of the vacancy, which
circumstance, according to the MSPB, under Section 4 of the Civil
Service Commission Resolution No. 83-343, gave her "promotional
priority" over Abila. Abila appealed to the CSC. The CSC affirmed
in toto. MR denied. Hence, this petition.
Issue:

Whether the CSC has authority to substitute its own

judgment for that of the official authorized by law to make an
appointment to the government service, in the matter of weighing
an appointee's qualifications and fitness for a position, after it has
been shown that the appointee possesses the minimum
qualifications prescribed for the position
Held:
No. The power of appointment, which is essentially discretionary,
is vested by law in the head of the office concerned. The head of
the office is the person on the spot. He occupies the ideal vantage
point from which to identify and designate the individual who can
best fill the post and discharge its functions in the government
agency he heads. The choice of an appointee from among those
who possess the required qualifications is a political and
administrative decision calling for considerations of wisdom,
convenience, utility and the interests of service which can best be
made by the head of the office concerned, the person most
familiar with the organizational structure and environmental
circumstances within which the appointee must function.
The Court notes that a vacant position in the Civil Service may be
filed by promotion, transfer of present employees, reinstatement
and re-employment or appointment of outsiders who have the
necessary eligibility. The next-in-rank rule invoked by respondent
Commission to justify its choice of respondent Eleria over
petitioner Abila, applies only where a vacancy is filled by
promotion, a process which denotes a scalar ascent of an officer to
another position higher either in rank or salary. A promotion
involves a situation quite different from the situation in the case at
bar where the appointment of petitioner Abila was effected

through lateral transfer from a position in one department of the

city government to a position of greater responsibility in another
department of the same government.
The Court further notes that even if the vacancy here had been
filled by promotion rather than by lateral transfer, the concept of
"next in rank" does not import any mandatory or peremptory
requirement that the person next in rank must be appointed to the
vacancy. What Section 19 (3) of P.D. No. 807, the Civil Service Law,
provides is that if a vacancy is filled by a promotion, the person
holding the position next in rank thereto "shall be considered for
promotion.

8. Pollo vs David
FACTS:
[This case involves a search of office computer assigned to a
government employee who was then charged administratively and
was eventually dismissed from the service. The employees
personal files stored in the computer were used by the
government employer as evidence of his misconduct.]
On January 3, 2007, an anonymous letter-complaint was received
by the respondent Civil Service Commission (CSC) Chairperson
alleging that the chief of the Mamamayan muna hindi mamaya na
division of Civil Service Commission Regional Office No. IV (CSCROIV) has been lawyering for public officials with pending cases in
the CSC. Chairperson David immediately formed a team with
background in information technology and issued a memorandum
directing them to back up all the files in the computers found in
the [CSC-ROIV] Mamamayan Muna (PALD) and Legal divisions.
The team proceeded at once to the CSC-ROIV office and backed
up all files in the hard disk of computers at the Public Assistance
and Liaison Division (PALD) and the Legal Services Division. This
was witnessed by several employees. At around 10:00 p.m. of the
same day, the investigating team finished their task. The next
day, all the computers in the PALD were sealed and secured. The
diskettes containing the back-up files sourced from the hard disk of
PALD and LSD computers were then turned over to Chairperson
David. It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being
used by the petitioner, numbering about 40 to 42 documents, were
draft pleadings or letters in connection with administrative cases in

the CSC and other tribunals. Chairperson David thus issued a

Show-Cause Order requiring the petitioner to submit his
explanation or counter-affidavit within five days from notice.
Petitioner filed his Comment, denying that he is the person
referred to in the anonymous letter-complaint. He asserted that he
had protested the unlawful taking of his computer done while he
was on leave, citing the letter dated January 8, 2007 in which he
informed Director Castillo of CSC-ROIV that the files in his
computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their
sealing, copying, duplicating and printing as these would violate
his constitutional right to privacy and protection against selfincrimination and warrantless search and seizure. He pointed out
that though government property, the temporary use and
ownership of the computer issued under a Memorandum of
Receipt is ceded to the employee who may exercise all attributes
of ownership, including its use for personal purposes. In view of
the illegal search, the files/documents copied from his computer
without his consent [are] thus inadmissible as evidence, being
fruits of a poisonous tree.
The CSC found prima facie case against the petitioner and charged
him with Dishonesty, Grave Misconduct, Conduct Prejudicial
to the Best Interest of the Service and Violation of R.A. No.
6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees). Petitioner then filed an Omnibus Motion (For
Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search,
which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. The CSC denied this omnibus
motion.
On March 14, 2007, petitioner filed an Urgent Petition before the
Court of Appeals (CA) assailing both the January 11, 2007 ShowCause Order and February 26, 2007 Resolution as having been
issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. On July 24, 2007, the CSC issued a
Resolution
finding
petitioner GUILTY of Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the
Service and Violation of Republic Act 6713. He is meted
the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties. This Resolution was also brought to the CA by
herein petitioner.

By a Decision dated October 11, 2007, the CA dismissed the

petitioners petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. His motion for
reconsideration having been denied by the CA, petitioner brought
this appeal before the Supreme Court.

ISSUE:
Was the search conducted on petitioners office computer and the
copying of his personal files without his knowledge and consent
alleged as a transgression on his constitutional right to privacy
lawful?
HELD:
[The Supreme Court DENIED the petition and AFFIRMED the CA,
which in turn upheld the CSC resolution dismissing the petitioner
from service. The High Tribunal held that the search on petitioners
office computer and the copying of his personal files were
both LAWFUL and DID NOT VIOLATE his constitutional right to
privacy.]
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee
against unreasonable search and seizure under Section 2, Article III
of the 1987 Constitution. The constitutional guarantee is not a
prohibition of all searches and seizures but only of unreasonable
searches and seizures.
Pollo vs David
Facts
Respondent CSC Chair Constantino-David received an anonymous
letter complaint alleging of an anomaly taking place in the
Regional Office of the CSC. The respondent then formed a team
and issued a memo directing the team to back up all the files in
the computers found in the Mamamayan Muna (PALD) and Legal
divisions.
Several diskettes containing the back-up files sourced from the
hard disk of PALD and LSD computers were turned over to
Chairperson David. The contents of the diskettes were examined
by the CSCs Office for Legal Affairs (OLA). It was found that most
of the files in the 17 diskettes containing files copied from the

computer assigned to and being used by the petitioner, numbering

about 40 to 42 documents, were draft pleadings or lettersin
connection with administrative cases in the CSC and other
tribunals. On the basis of this finding, Chairperson David issued
the Show-Cause Order, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit
within five days from notice.
In his Comment, petitioner denied the accusations against him and
accused the CSC Officials of fishing expedition when they
unlawfully copied and printed personal files in his computer.
He was charged of violating R.A. No. 6713 (Code of Conduct and
Ethical Standards for Public Officials and Employees). He assailed
the formal charge and filed an Omnibus Motion ((For
Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search
which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court.
The CSC denied the omnibus motion and treated the motion as the
petitioners answer to the charge. In view of the absence of
petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the
formal investigation which then proceeded ex parte.
The petitioner was dismissed from service. He filed a petition to
the CA which was dismissed by the latter on the ground that it
found no grave abuse of discretion on the part of the respondents.
He filed a motion for reconsideration which was further denied by
the appellate court. Hence, this petition.
Issue
WON the search conducted by the CSC on the computer of the
petitioner constituted an illegal search and was a violation of his
constitutional right to privacy
Ruling
The search conducted on his office computer and the copying of
his personal files was lawful and did not violate his constitutional
right.
Ratio Decidendi

In this case, the Court had the chance to present the cases
illustrative of the issue raised by the petitioner.
Katz v. United States 389 U.S. 437 (1967), the US Supreme Court
held that the act of FBI agents in electronically recording a
conversation made by petitioner in an enclosed public telephone
booth violated his right to privacy and constituted a search and
seizure. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone
call, the protection of the Fourth Amendment extends to such area.
Moreso, the concurring opinion of Mr. Justice Harlan noted that the
existence of privacy right under prior decisions involved a two-fold
requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as
reasonable (objective).
Mancusi v. DeForte 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154
(1968),thus recognized that employees may have a reasonable
expectation of privacy against intrusions by police.
OConnor v. Ortega 480 U.S. 709 (1987), the Court categorically
declared that [i]ndividuals do not lose Fourth Amendment rights
merely because they work for the government instead of a private
employer. In OConnor the Court recognized that special needs
authorize warrantless searches involving public employees for
work-related reasons. The Court thus laid down a balancing test
under which government interests are weighed against the
employees reasonable expectation of privacy. This reasonableness
test implicates neither probable cause nor the warrant
requirement, which are related to law enforcement.
Social Justice Society (SJS) v. Dangerous Drugs Board G.R. Nos.
157870, 158633 and 161658, November 3, 2008, 570 SCRA 410,
427, (citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293
SCRA 141, 169), recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The Court ruled that the petitioner did not have a reasonable
expectation of privacy in his office and computer files.
As to the second point of inquiry, the Court answered in the
affirmative. The search authorized by the CSC Chair, the copying
of the contents of the hard drive on petitioners computer
reasonable in its inception and scope.
The Court noted that unlike in the case of Anonymous LetterComplaint against Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila A.M. Nos. P-08-2519 and P-082520, November 19, 2008, 571 SCRA 361, the case at bar involves
the computer from which the personal files of the petitioner were

retrieved is a government-issued computer, hence government

property the use of which the CSC has absolute right to regulate
and monitor.
9. Gloria v. CA
FACTS:
Private respondent Bienvenido Icasiano was appointed
Schools Division Superintendent of Quezon City
Icasiano was reassigned as Superintendent of Marikina
Institute of Science and Technology (MIST) to fill up the
vacuum created by the retirement of its Superintendent.
Icasiano requested to reconsider his re assignment but it
was denied. He then filed a petition for preliminary
injunction
enjoining
the
implementation
of
his
reassignment.
The CA ruled that the reassignment of Icasiano is declared
to be violative of his rights to security of tenure, and Gloria
was prohibited from implementing the reassignment of
Icasiano.
Petitioners seek relief from the decision of the appellate
court arguing that the filing of the case violated the
immunity of the President from suit.
ISSUE:
Whether or not the filing of the case violates the presidential
immunity from suit.
HELD:
Petition is DENIED. Decision of CA is AFFRIMED.
RATIO:
Petitioners contention is untenable for the simple reason
that the petition is directed against petitioners and not
against the President. The questioned acts are those of
petitioners and not of the President. Furthermore,
presidential decisions may be questioned before the courts
where there is grave abuse of discretion or that the
President acted without or in excess of jurisdiction.
Title
Citation

Ponente

HON. R. GLORIA VS COURT OF APPEALS

:
G.R. No. 131012
April 21, 1999
MENDOZA, J

Facts

:
Dr. Bienvenido Icasiano was appointed Schools Division
Superintendent of Quezon City in 1989. Upon recommendation of
DECS Secretary Ricardo T. Gloria, Icasiano was reassigned as
Superintendent of the Marikina Institute of Science and Technology
(MIST) to fill up the vacuum created by the retirement of its
Superintendent in 1994.
Icasiano filed a TRO and preliminary mandatory injuction
enjoining the implementation of his reassignment. The Court of
Appeals granted the petition holding that the indefinite
reassignment is violative of Icasianos right to security of tenure.
The DECS Secretary argued that the filing of the case is
improper because the same attacks an act of the President, in
violation of the doctrine of presidential immunity from suit.
Issues
:
1. Whether or not the filing of the case violates the presidential
immunity from suit.
2. Whether or not private respondent's reassignment is violative of
his security of tenure.
Held

:
1. Petitioners contention is untenable for the simple reason
that the petition is directed against petitioners and not against the
President. The questioned acts are those of petitioners and not of
the President. Furthermore, presidential decisions may be
questioned before the courts where there is grave abuse of
discretion or that the President acted without or in excess of
jurisdiction.
2. After a careful study, the Court upholds the finding of the
respondent court that the reassignment of petitioner to MIST
"appears to be indefinite". The same can be inferred from the
Memorandum of Secretary Gloria for President Fidel V. Ramos to
the effect that the reassignment of private respondent will "best fit
his qualifications and experience" being "an expert in vocational
and technical education." It can thus be gleaned that subject
reassignment is more than temporary as the private respondent
has been described as fit for the (reassigned) job, being an expert
in the field. Besides, there is nothing in the said Memorandum to
show that the reassignment of private respondent is temporary or
would only last until a permanent replacement is found as no
period is specified or fixed; which fact evinces an intention on the
part of petitioners to reassign private respondent with no definite
period or duration. Such feature of the reassignment in question is
definitely violative of the security of tenure of the private

respondent. As held in Bentain vs. Court of Appeals (209 SCRA

644):
"Security of tenure is a fundamental and constitutionally
guaranteed feature of our civil service. The mantle of its protection
extends not only to employees removed without cause but also to
cases of unconsented transfers which are tantamount to illegal
removals (Department of Education, Culture and Sports vs. Court
of Appeals, 183 SCRA 555; Ibanez vs. COMELEC, 19 SCRA 1002;
Brillantes vs. Guevarra, 27 SCRA 138).
While a temporary transfer or assignment of personnel is
permissible even without the employees prior consent, it cannot
be done when the transfer is a preliminary step toward his
removal, or is a scheme to lure him away from his permanent
position, or designed to indirectly terminate his service, or force
his resignation. Such a transfer would in effect circumvent the
provision which safeguards the tenure of office of those who are in
the Civil Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs.
Lejano, 109 Phil. 116)."
Having found the reassignment of private respondent to the
MIST to be violative of his security of tenure, the order for his
reassignment to the MIST cannot be countenanced.

respectively,
of
the
CIVIL
SERVICE
COMMISSION,petitioners,
vs. ZENAIDA
D.
PANGANDAMAN-GANIA, respondent.
DECISION
BELLOSILLO, J.:
A system of procedure is perverted from its proper function
when it multiplies impediments to justice without the warrant of
clear necessity, so says Cardozo - an observation especially apt in
the instant case involving the payment of back wages and other
benefits resulting from the illegal dismissal of an employee due to
improper personnel and non-disciplinary action. The disquieting
procedural steps risked by respondent before the Court of Appeals,
the tendency of the appellate court to overlook most of them, the
doggedness of the Solicitor General to venture others, when
neither the court a quo nor the parties to the case appear
perturbed that elementary rules of procedure were either
indulgently brushed aside or subtly exploited one after the other,
do not leave us ensnared in borderline technical maneuvers, or so
it is said, being too impotent to address the pith of this
controversy.
Respondent Zenaida D. Pangandaman-Gania is a Director II
and Manila Information and Liaisoning Officer of the Mindanao
State University (MSU). She has been holding this position after
the confirmation of her appointment by the MSU Board of Regents
on 1 June 1995.

10. EN BANC
[G.R. No. 156039. August 14, 2003]
HON.

KARINA
CONSTANTINO-DAVID,
HON.
JOSE
F.
ERESTAIN, JR., and HON. WALDEMAR V. VALMORES,
in their capacities as Chairman and Commissioners,

On 2 October 1998 respondent received a copy of Special

Order No. 477-P dated 28 September 1998 designating a certain
Agnes Mangondato as Acting Director in her place in view of the
alleged expiration of her term and was no longer allowed to report
for work. She verified the status of her appointment and found out
that her appointment was not submitted to the Civil Service
Commission for attestation.
Respondent immediately brought the matter to the CSC for a
ruling on the validity of the termination of her employment.

[1]

In Resolution No. 00-1265 dated 24 May 2000 the CSC upheld

her dismissal for lack of attestation and prolonged absence without
official leave from the time she was removed from her post in
September 1998 as a result of Special Order No. 477-P.
Respondent moved for reconsideration. In Resolution No. 010558 dated 8 March 2001 the CSC found merit in her motion,
declared her removal from office as illegal, exonerated her from
the charge of being on absence without official leave and ordered
her reinstatement as Director II and Manila Information and
Liaisoning Officer of MSU but disallowed the payment of back
salaries for the period she was not working as a result of the illegal
dismissal. The CSC explained the non-payment of her back wages Be that as it may, the incumbency of Dr. Gania is governed by the
principle of quantum meruit (as you work so shall you earn). In
other words, her entitlement to compensation depends on her
actual performance of work. Short of approval by the Commission,
the appointment while already effective, by itself is not a basis for
payment of salary but the assumption of duties of her office x x x x
Such being the case, Dr. Gania is not entitled to compensation for
the period that she was not reporting to work.[2]
MSU moved for reconsideration of CSC Resolution No. 01-0558
dated 8 March 2001, while respondent moved for its early
execution. In Resolution No. 01-1225 dated 19 July 2001, the CSC
denied MSUs motion for reconsideration and ordered its President
to allow respondent to assume and exercise the functions of Manila
Information and Liaisoning Officer.
MSU appealed from the denial of its motion for reconsideration
under Rule 43 of the 1997 Rules of Civil Procedure, docketed as
CA-G.R. No. SP-66188, to the Court of Appeals, but the appellate
court did not issue any restraining order or injunction to prevent
the execution of the resolution on appeal.
Respondent did not seek a review of any of the resolutions of
the CSC including the order denying back salaries and other
benefits for the period she was out of work. She instead pursued
her prayer for reinstatement but MSU refused to employ her

back. Hence, she was compelled to file a second motion for the
execution of CSC Resolution No. 01-0558 dated 8 March
2001, citing Sec. 82 of the Revised Uniform Rules on
Administrative Cases in the Civil Service, which states that [t]he
filing and pendency of petition for review with the Court of Appeals
or certiorari with the Supreme Court shall not stop the execution of
the final decision of the Commission unless the Court issues a
restraining order or an injunction.
In Resolution No. 01-1616 dated 4 October 2001 the CSC
granted respondents motion and held that CSC Resolution No. 010558 dated 8 March 2001 has attained finality and must be
immediately implemented, as it again ordered the MSU President
to reinstate respondent.
On 8 October 2001 respondent for the first time questioned
the portion of CSC Resolution No. 01-0558 dated 8 March
2001 prohibiting the payment of back wages and other benefits to
her for the period that her employment was terminated, and
moved for the modification of the resolution by granting her the
relief prayed for.
On 29 October 2001 the Court of Appeals dismissed MSUs
petition for review on the ground that the certificate of non-forum
shopping was not personally signed by pertinent officers of the
university but by its counsel of record. [3] MSU moved for
reconsideration of the dismissal.
On 12 December 2001, there being still no action on her
request to be paid her back salaries and other benefits,
respondent moved for an immediate ruling thereon.
On 21 February 2002 the Court of Appeals denied MSUs
motion for reconsideration of the dismissal of its petition for review
for lack of merit.
On 28 February 2002 the
0321 denied respondents motion -

CSC

in Resolution

No.

02-

Since nowhere in the records does it show that [respondent Gania]

actually assumed and performed the duties of her position, it
logically follows that there can be no basis for the grant of back
salaries in her favor.[4]
Without the aid of an attorney, respondent appealed CSC
Resolution No. 02-0321 dated 28 February 2002 to the Court of
Appeals under Rule 43 of the 1997 Rules of Civil Procedure,
docketed as CA-G.R. SP No. 69668. In her petition for review, she
did not mention that she did not seek a review of CSC Resolution
No. 01-0558 dated 8 March 2001 which was the real object of her
appeal.[5] In addition, she impleaded only the petitioners herein,
Chairperson Karina Constantino-David and Commissioners Jose F.
Erestain Jr. and Waldemar V. Valmores of the CSC, but did not
name as party-respondent the Mindanao State University or any of
its officers.
In its Comment before the Court of Appeals, the CSC through
the Office of the Solicitor General (OSG) rebuffed respondents
claim for back wages since she allegedly failed to actually assume
the position of Director II and Manila Information and Liaisoning
Officer of MSU. But the CSC did not assail the procedural infirmities
of respondents petition and appeared contented to refute just the
substantial arguments thereof.
On 28 October 2002 the Court of Appeals partially found merit
in respondents petition for review. [6] Apparently failing to note that
respondent did not appeal from the denial of her claim for
payment of back salaries in CSC Resolution No. 01-0558 dated 8
March 2001, which she found objectionable, the Court of Appeals
concluded that x x x petitioner had assumed and had been exercising the
functions [at MSU] as early as June 1995, after the MSU Board of
Regents approved her permanent appointment which was issued
earlier x x x on April 10, 1995. It was only in September 1998,
when she was terminated from service on the alleged ground of
expiration of term, that she was prevented from performing the
functions of her position.[7]

The Court of Appeals ruled that back wages should be paid to

respondent from the time of her illegal dismissal until she was
ordered reinstated by the CSC as Director II of MSU on 8 March
2001, but excluded the period after the CSC had ordered MSU to
admit respondent back to work since the damages she suffered for
that period were chargeable in the proper forum against the MSU
President who in bad faith refused to abide by the relevant CSC
resolutions.
On 3 January 2003 the OSG filed the instant petition for review
under Rule 45, 1997 Rules of Civil Procedure, allegedly in behalf of
the petitioners named herein, and also signed for them the
verification and certification of non-forum shopping. The OSG
asserted as grounds for review the principle recognizing finality to
factual findings of quasi-judicial agencies as well as its puzzling
statement that [w]hile the dismissal of herein respondent was
declared illegal, she was, however, not exonerated from the
charges. Hence, respondent is not entitled to back wages. [8] Once
again the OSG did not call attention to procedural defects in the
petition of respondent before the Court of Appeals.
Respondent filed in her own behalf a Comment claiming that
the CSC cannot be a party-petitioner in a case where its decision is
the subject of review, citing Civil Service Commission v. Court of
Appeals.[9] As to whether respondent actually assumed the duties
of Director II, she referred not only to the finding of the Court of
Appeals that she had assumed office and worked for MSU as early
as June 1995 but also to the voluminous records of MSU showing
that she reported for work until her illegal dismissal in September
1998.[10] She also manifested that she was reinstated to her job on
18 September 2002 while the proceedings before the Court of
Appeals were ongoing although she was not paid her salary and
other benefits. In another Manifestation before this Court, she
affirmed that her salary as well as RATA and other benefits for the
month of September 2002 were paid on 23 April 2003.
We deny the instant petition for review. It is true that
respondent had lost the right to ask for the modification of CSC
Resolution No. 01-0558 dated 8 March 2001 and to demand
compensation for her back salaries and other benefits. She did not

move for the reconsideration of this resolution within fifteen (15)

days from receipt thereof[11] nor did she file a petition for its review
within the same period under Rule 43 of the 1997 Rules of Civil
Procedure.[12] To be sure, both the CSC and respondent herself
admitted the finality of the Resolution and acted upon it when she
was granted an order for its execution.
Meanwhile, MSU filed its petition for review with the Court of
Appeals (CA-G.R. No. SP-66188) assailing CSC Resolution No. 010558 dated 8 March 2001 and CSC Resolution No. 01-1225 dated
19 July 2001 denying MSUs motion for reconsideration.
Ordinarily, under the foregoing circumstances, neither the Civil
Service Commission nor the Court of Appeals has jurisdiction to
direct the substantial amendment of CSCs relevant resolutions
upon the behest of respondent.[13] The principle governing ordinary
appeal from the Regional Trial Court to the Court of Appeals
applies suppletorily[14] mutatis mutandis x x x where all the parties have either thus perfected their appeals
by filing their notices of appeal in due time and the period to file
such notice of appeal has lapsed for those who did not do so, then
the trial court loses jurisdiction over the case as of the filing of the
last notice of appeal or the expiration of the period to do so for all
the parties.[15]
This rule is also articulated in Associated Bank v.
Gonong[16] where we held that only after all the parties respective
periods to appeal shall have lapsed that the court loses its
jurisdiction over the case. What is left as residual jurisdiction of the
Civil Service Commission pertains only to matters for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal or the immediate
execution of its resolutions under the Revised Uniform Rules on
Administrative Cases in the Civil Service. This is to ensure the
orderly disposition of the case at both the levels of the CSC and
the appellate court.[17]
Nonetheless, we cannot inflexibly dwell on the defect of a
belated appeal and coldly thwart a review of the instant case. For

it cannot be denied that even after acknowledging the finality

of Resolution No. 01-0558 dated 8 March 2001, the CSC still
entertained the twin motions of respondent on 8 October 2001 and
12 December 2001 to modify the same resolution and insert
therein an order for the payment of back wages. The CSC in fact
promulgated Resolution No. 02-0321 dated 28 February
2002 denying respondents importunate motions for the reason
that she allegedly did not report for work but not because they
were already time-barred.
No doubt, the Civil Service Commission was in the legitimate
exercise of its mandate under Sec. 3, Rule I, of the Revised
Uniform Rules on Administrative Cases in the Civil Service that
[a]dministrative investigations shall be conducted without
necessarily adhering strictly to the technical rules of procedure
and evidence applicable to judicial proceedings. This authority is
consistent with its powers and functions to [p]rescribe, amend and
enforce rules and regulations for carrying into effect the provisions
of the Civil Service Law and other pertinent laws being the central
personnel agency of the Government.[18]
Furthermore, there are special circumstances in accordance
with the tenets of justice and fair play that warrant such liberal
attitude on the part of the CSC and a compassionate like-minded
discernment by this Court.[19] To begin with, respondent was
consistently denied reinstatement by the responsible officers of
MSU and vehemently barred from resuming her previous
position. The first order for her return to work was issued on 8
March 2001 which was followed by repeated personal appeals for
the immediate execution of the CSC resolution. [20] Thereafter, when
respondent was still forced out of work, the CSC issued its second
and third orders on 19 July 2001 and 4 October 2001, respectively,
for the President of MSU to restore her to the item from which she
was illegally dismissed.As these private requests and official
directives were cruelly rejected by her employer and the period of
her unemployment was unduly prolonged, respondent had no
choice and was compelled to ask for back salaries and other
benefits to offset the callous repudiation of what was due her.

To prevent respondent from claiming back wages would leave

incomplete the redress of the illegal dismissal that had been done
to her and amount to endorsing the wrongful refusal of her
employer or whoever was accountable to reinstate her. A too-rigid
application of the pertinent provisions of the Revised Uniform
Rules on Administrative Cases in the Civil Service as well
as the Rules of Court will not be given premium where it would
obstruct rather than serve the broader interests of justice in the
light of the prevailing circumstances in the case under
consideration.
As commented in Obut v. Court of Appeals,[21] we cannot look
with favor on a course of action which would place the
administration of justice in a straightjacket for then the result
would be a poor kind of justice, if there would be justice at
all. Verily, judicial orders x x x are issued to be obeyed,
nonetheless a non-compliance is to be dealt with as the
circumstances attending the case may warrant. What should guide
judicial action is the principle that a party-litigant is to be given the
fullest opportunity to establish the merits of his complaint or
defense rather than for him to lose life, liberty, honor or property
on technicalities.
The same principle of liberality may also be drawn upon to
gloss over the failure of respondent to implead MSU as partyrespondent in the petition before the Court of Appeals while joining
only herein petitioners as Chairman and Commissioners of the CSC
to answer her petition. While as a rule it would have been
necessary to adhere to this practice, [22] in the instant case no one
among the Court of Appeals, the CSC and the Office of the Solicitor
General saw it fit to name or cause to be included MSU as partyrespondent.Indeed, the Comment of the OSG argued on the merits
as if it was acting in unison with respondents employer, stressing
all possible claims that may be alleged to defeat respondents
petition. Ultimately, what is crucial is that both CSC and MSU are
part of the same bureaucracy that manages and supervises
government personnel, and as such, represent a common interest
on the question raised in the petition to be defended by the same
core of lawyers from the OSG or the Office of the Government
Corporate Counsel (OGCC).[23]

Justifiably, where no injury has been done as probably all lines

of reasoning to oppose the petition have been asserted by parties
of the same principal and brought to the fore in the proceedings a
quo, and considering further that the underlying principle in the
administration of justice and application of the rules is substance
rather than form, reasonableness and fair play in place of
formalities, we deem it apposite to except this particular case from
the rigid operation of the procedure for the joinder of parties.
In any event, none of these procedural defects were raised as
an issue on appeal and are now deemed waived. Of course we are
not surprised that the OSG did not touch on these procedural
issues and would seemingly prefer a ruling squarely on the issue of
respondents entitlement to back wages. As its services are paid for
by taxpayers money, the OSG ought to be the foremost officers of
the court who in suitable cases must delve into the real concerns.
Unfortunately, the OSG also treaded upon technically
precarious grounds when it filed the petition in the name of the
CSC and signed the verification and certificate of non-forum
shopping in behalf of its client. Sure enough, respondent
vigorously objects to the standing of the CSC as party-petitioner in
the instant petition, citing our ruling in Civil Service Commission v.
Court of Appeals.[24]
That the CSC may appeal from an adverse decision of the
Court of Appeals reversing or modifying its resolutions which may
seriously prejudice the civil service system is beyond
doubt. In Civil Service Commission v. Dacoycoy[25] this Court held
that the CSC may become the party adversely affected by such
ruling and the aggrieved party who may appeal the decision to this
Court.
The situation where the CSCs participation is beneficial and
indispensable often involves complaints for administrative
offenses, such as neglect of duty, being notoriously undesirable,
inefficiency and incompetence in the performance of official
duties, and the like, where the complainant is more often than not
acting merely as a witness for the government which is the real
party injured by the illicit act. In cases of this nature, a ruling of

the Court of Appeals favorable to the respondent employee is

understandably adverse to the government, and unavoidably the
CSC as representative of the government may appeal the decision
to this Court to protect the integrity of the civil service system.
The CSC may also seek a review of the decisions of the Court
of Appeals that are detrimental to its constitutional mandate as
the central personnel agency of the government tasked to
establish a career service, adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness and courtesy
in the civil service, strengthen the merit and rewards system,
integrate all human resources development programs for all levels
and ranks, and institutionalize a management climate conducive
to public accountability. Nonetheless, the right of the CSC to
appeal the adverse decision does not preclude the private
complainant in appropriate cases from similarly elevating the
decision for review.[26]
The ruling in Civil Service Commission v. Dacoycoy was further
explained in Civil Service Commission v. Court of Appeals[27] where
we held that the real party-in-interest in a case involving the nonrenewal of the appointments of contractual employees would be
the person who was allegedly dismissed from work and not the
CSC, for it is he who would be benefited or injured by his
reinstatement or non-reinstatement and who is present, available
and competent to bring the matter on appeal. Like a judge whose
order or decision is being assailed, the CSC should not be joined in
the petition as it is not a combatant in a proceeding where
opposing parties may contend their respective positions without
the active participation of the CSC.[28]
In the instant case, the CSC is not the real party-in-interest as
this suit confronts the Decision of the Court of Appeals to award
back wages for respondent arising from an illegitimate personnel
and non-disciplinary action of MSU, which is different from an
administrative disciplinary proceeding where the injured party is
the government. We fail to see how the assailed Decision can
impair the effectiveness of government, damage the civil service
system or weaken the constitutional authority of the CSC so as to
authorize the latter to prosecute this case. As a rule, the material

interest for this purpose belongs to MSU since it instigated the

illegal dismissal and the execution of the Decision devolves upon
it.[29]
Regrettably, however, respondent cannot insist that MSU be
the indispensable party in the instant petition since the latter was
not designated as respondent in the petition before the Court of
Appeals. It would truly be a case of having her cake and eating it
too for respondent to require MSU to undertake the present appeal
from the assailed Decision when it was deprived of standing in the
appellate court proceedings and unilaterally booted out as a
prospective litigant herein. Hence, by force of circumstances, the
CSC has the standing to initiate the instant petition for review.
Moreover, the OSG executed the verification and certificate of
non-forum shopping in behalf of the CSC, citing as bases
therefor City Warden of the Manila City Jail v. Estrella,
[30]
and Commissioner of Internal Revenue v. S.C. Johnson and Son,
Inc.[31] Some clarification is in order to avoid perpetuating a
misconception.
City Warden of the Manila City Jail v. Estrella is not an
authority for the OSG to execute verification and certification of
non-forum shopping on its own as legal representative of client
agencies. The reason is that the OSG was in that case acting as a
Peoples Tribune regardless of the official opinion of the relevant
government agencies therein That the City Warden appears to have acquiesced in the release
order of the trial court by his compliance therewith does not
preclude the Solicitor General from taking a contrary position and
appealing the same. The Solicitor General's duty is to present what
he considers would legally uphold the best interest of the
Government[32] (underscoring added).
Hence, there was no necessity for the verification and
certificate of non-forum shopping to be executed by the City
Warden himself. To be sure, it would have been awkward and
irregular for the City Warden to do so given that his position was
not the same as those reflected in the petition of the OSG. No

doubt, the real party-in-interest is the OSG itself as representative

of the State.[33] In Pimentel v. Commission on Elections[34] we held
x x x the Solicitor General may, as it has in instances take a
position adverse and contrary to that of the Government on the
reasoning that it is incumbent upon him to present to the court
what he considers would legally uphold the best interest of the
government although it may run counter to a client's position x x x
x As we commented on the role of the Solicitor General in cases
pending before this Court, This Court does not expect the Solicitor
General to waver in the performance of his duty. As a matter of
fact, the Court appreciates the participation of the Solicitor
General in many proceedings and his continued fealty to his
assigned task. He should not therefore desist from appearing
before this Court even in those cases he finds his opinion
inconsistent with the Government or any of its agents he is
expected to represent. The Court must be advised of his position
just as well.[35]
But the rule is different where the OSG is acting as counsel of
record for a government agency. For in such a case it becomes
necessary to determine whether the petitioning government body
has authorized the filing of the petition and is espousing the same
stand propounded by the OSG. Verily, it is not improbable for
government agencies to adopt a stand different from the position
of the OSG since they weigh not just legal considerations but
policy repercussions as well. They have their respective mandates
for which they are to be held accountable, and the prerogative to
determine whether further resort to a higher court is desirable and
indispensable under the circumstances.
The verification of a pleading, if signed by the proper officials
of the client agency itself, would fittingly serve the purpose of
attesting that the allegations in the pleading are true and correct
and not the product of the imagination or a matter of speculation,
and that the pleading is filed in good faith. Of course, the OSG may
opt to file its own petition as a Peoples Tribune but the
representation would not be for a client office but for its own
perceived best interest of the State.

The case of Commissioner of Internal Revenue v. S.C. Johnson

and Son, Inc., is not also a precedent that may be invoked at all
times to allow the OSG to sign the certificate of non-forum
shopping in place of the real party-in-interest. The ruling therein
mentions merely that the certification of non-forum shopping
executed by the OSG constitutes substantial compliance with
the rule since the OSG is the only lawyer for the petitioner, which
is a government agency mandated under Section 35, Chapter 12,
Title III, Book IV, of the 1987 Administrative Code (Reiterated under
Memorandum Circular No. 152 dated May 17, 1992) to be
represented only by the Solicitor General.[36]
By its very nature, substantial compliance is actually
inadequate observance of the requirements of a rule or regulation
which are waived under equitable circumstances[37] to facilitate
the administration of justice[38] there being no damage or injury
caused by such flawed compliance.[39] This concept is
expressed in the statement the rigidity of a previous doctrine was
thus subjected to an inroad under the concept of substantial
compliance.[40] In every inquiry on whether to accept substantial
compliance, the focus is always on the presence of equitable
conditions to administer justice effectively and efficiently without
damage or injury to the spirit of the legal obligation.
We have ruled previously[41] that substantial compliance with
the certificate of non-forum shopping is sufficient. The equitable
circumstances pleaded to show substantial compliance include the
proximity of the filing of the complaint to the date of the effectivity
of the circular requiring the certificate and the belated filing
thereof, but the mere submission thereof after the filing of a
motion to dismiss does not ipso facto operate as a substantial
compliance.[42] As summarized in Bank of the Philippine Islands v.
Court of Appeals,[43][w]hen a strict and literal application of the
rules on non-forum shopping and verification will result in a patent
denial of substantial justice, they may be liberally construed. This
guideline is especially true when the petitioner has satisfactorily
explained the lapse and fulfilled the requirements in its motion for
reconsideration.

The fact that the OSG under the 1987 Administrative Code is
the only lawyer for a government agency wanting to file a petition,
or complaint for that matter, does not operate per se to vest the
OSG with the authority to execute in its name the certificate of
non-forum shopping for a client office. For, in many instances,
client agencies of the OSG have legal departments which at times
inadvertently take legal matters requiring court representation into
their own hands without the intervention of the OSG.
[44]
Consequently, the OSG would have no personal knowledge of
the history of a particular case so as to adequately execute the
certificate of non-forum shopping; and even if the OSG does have
the relevant information, the courts on the other hand would have
no way of ascertaining the accuracy of the OSGs assertion without
precise references in the record of the case. Thus, unless
equitable circumstances which are manifest from the
record of a case prevail, it becomes necessary for the
concerned government agency or its authorized representatives to
certify for non-forum shopping if only to be sure that no other
similar case or incident is pending before any other court.
We recognize the occasions when the OSG has difficulty in
securing the attention and signatures of officials in charge of
government offices for the verification and certificate of non-forum
shopping of an initiatory pleading. This predicament is especially
true where the period for filing such pleading is non-extendible or
can no longer be further extended for reasons of public interest
such as in applications for the writ of habeas corpus, in election
cases or where sensitive issues are involved. This quandary is
more pronounced where public officials have stations outside
Metro Manila.
But this difficult fact of life within the OSG, equitable as it may
seem, does not excuse it from wantonly executing by itself the
verification and certificate of non-forum shopping. If the OSG is
compelled by circumstances to verify and certify the pleading in
behalf of a client agency, the OSG should at least endeavor to
inform the courts of its reasons for doing so, beyond
instinctively citing City Warden of the Manila City Jail v.
Estrella and Commissioner of Internal Revenue v. S.C. Johnson and
Son, Inc.

Henceforth, to be able to verify and certify an initiatory

pleading for non-forum shopping when acting as counsel of record
for a client agency, the OSG must (a) allege under oath the
circumstances that make signatures of the concerned officials
impossible to obtain within the period for filing the initiatory
pleading; (b) append to the petition or complaint such authentic
document to prove that the party-petitioner or complainant
authorized the filing of the petition or complaint and understood
and adopted the allegations set forth therein, and an affirmation
that no action or claim involving the same issues has been filed or
commenced in any court, tribunal or quasi-judicial agency; and, (c)
undertake to inform the court promptly and reasonably of any
change in the stance of the client agency.
Anent the document that may be annexed to a petition or
complaint under letter (b) hereof, the letter-endorsement of the
client agency to the OSG, or other correspondence to prove that
the subject-matter of the initiatory pleading had been previously
discussed between the OSG and its client, is satisfactory evidence
of the facts under letter (b) above. In this exceptional situation
where the OSG signs the verification and certificate of non-forum
shopping, the court reserves the authority to determine the
sufficiency of the OSGs action as measured by the equitable
considerations discussed herein.
Finally, after our lengthy discourse on the technical
imperfections afflicting the instant case, we resolve the
substantive issue of whether respondent is entitled to receive back
salaries and other benefits for the period that she was illegally
dismissed. Obviously, the answer is in the affirmative.
There is more than substantial evidence in the record
consisting of the general payroll and attendance sheets to prove
that petitioner assumed and exercised the functions of Director II
and Manila Information and Liaisoning Officer at MSU as early as
June 1995 after the MSU Board of Regents approved her
permanent appointment which was issued earlier on 10 April 1995.
[45]
It cannot be refuted that in September 1998 she was
terminated from the service on the alleged ground of expiration of
her term and stopped from performing the functions of her

position, and subsequently reinstated to her job upon the

declaration of the CSC that her dismissal from the service was
illegal. Clearly, the CSC gravely erred when thereafter it ruled that
respondent did not actually assume and perform the duties of her
position so as to deprive her of back wages and other benefits.
In Gabriel v. Domingo[46] this Court held that an illegally
dismissed government employee who is later ordered reinstated is
entitled to back wages and other monetary benefits from the time
of his illegal dismissal up to his reinstatement. This is only fair and
sensible because an employee who is reinstated after having been
illegally dismissed is considered as not having left his office and
should be given a comparable compensation at the time of his
reinstatement.
Respondent cannot be faulted for her inability to work or to
render any service from the time she was illegally dismissed up to
the time of her reinstatement. The policy of no work, no pay
cannot be applied to her, for such distressing state of affairs was
not of her own making or liking even as her family suffered
tremendously as a consequence of her removal and while she was
jobless. Verily, to withhold her back salaries and other benefits
during her illegal dismissal would put to naught the constitutional
guarantee of security of tenure for those in the civil service.
We also agree with the Court of Appeals that MSU cannot be
made to pay all accruing back salaries and other benefits in favor
of respondent. There are allegations to the effect that officials of
MSU disobeyed in bad faith the writ of execution issued by the
CSC.In Gabriel v. Domingo[47] we held that if the illegal dismissal,
including the refusal to reinstate an employee after a finding of
unlawful termination, is found to have been made in bad faith or
due to personal malice of the superior officers then they will be
held personally accountable for the employees back salaries;
otherwise, the government disburses funds to answer for such
arbitrary dismissal.[48] This rule is also enunciated in Secs.
38[49] and 39[50] of Book I, E.O. 292, and in Secs. 53,[51] 55,
[52]
56[53] and 58[54] of Rule XIV of theOmnibus Civil Service Rules
and Regulations.

Accordingly, MSU as a government institution must

compensate
respondent
with
back
salaries
and
other
benefits only from the time of her illegal dismissal, which
according to the case record began sometime in October 1998,
until the motion for reconsideration of the MSU was denied and a
writ of execution for respondents reinstatement as Director II and
Manila Information and Liaisoning Officer was issued. The
reckoning period is not 8 March 2001 as determined by the
appellate court but 19 July 2001 when CSC Resolution No. 011225 was promulgated wherein the motion for reconsideration of
the MSU was denied with finality and the latter was explicitly
commanded to allow respondent to assume and exercise the
functions of Director II and Manila Information and Liaisoning
Officer. For, a final decision of the CSC is immediately
executory unless a motion for reconsideration is filed in the
meantime.[55]
The back wages and other benefits accruing after 19 July 2001
are to be treated separately since they must be collected in the
proper forum wherein the assertions of malice and ill will in the
failure to reinstate respondent to her post are threshed out and the
concerned parties given the full opportunity to be heard. Until such
separate proceeding has been instituted and decided, it is
premature to fix the liability for this portion of respondents back
wages and other benefits upon either the government as
represented by MSU or the accountable officers thereof.
WHEREFORE,
the
instant Petition
for
Review is
DENIED. The Decision of the Court of Appeals dated 28 October
2002 is AFFIRMED except that the cut-off date for the payment of
back salaries to respondent should be adjusted from the date of
her illegal dismissal to 19 July 2001, instead of 8 March 2001, since
it was only on 19 July 2001 that MSUs motion for reconsideration
was denied and the order of execution finally issued by the Civil
Service Commission specifically directing MSU to reinstate
respondent Pangandaman-Gania and exercise the functions of her
position with the promulgation of CSC Resolution No. 01-1225.
This is without prejudice to respondents claim for back salaries
and other benefits in the appropriate forum corresponding to the

period after 19 July 2001 until she is actually reinstated as Director

II and Manila Information and Liaisoning Officer.
SO ORDERED.

11.