34. Paloma v.
Mora
GR No. 157783
September 23, 2005
TOPIC: Mandamus
Doctrine:
Mandamus lies to compel the performance, when
refused, of a ministerial duty, but not to compel the
performance of a discretionary duty.
Mandamus will not issue to control or review the
exercise of discretion of a public officer where the
law imposes upon said public officer the right and
duty to exercise his judgment in reference to any
matter in which he is required to act. It is his
judgment that is to be exercised and not that of the
court.
Issue:
Whether or not mandamus will lie to compel the
members of the Board to reinstate Paloma as GM;
Facts:
Petitioner Nilo Paloma was appointed General Manager
of Polompon, Leyte Water District in 1993. He was
subsequently dismissed; there was no complaint nor
was he notified by the Board of Directors of his
termination. His services were terminated by virtue of
Resolution No. 8-95dated 29 December 1995, which
was passed by respondents as Chairman and members
of the Board of the Palompon, Leyte Water District,
namely: Danilo Mora, Hilario Festejo, Bryn Bongbong
and Maxima Salvino, respectively. The Board, in the
same Resolution, designated respondent Valentino
Sevilla as Officer-in-Charge.
In pain, he filed a Petition for Mandamus with the RTC,
asking for his restoration as GM. He further alleged that
the Resolution terminating his was passed by the Board
as a result of capricious and arbitrary act, constituting a
travesty of justice and a fatal denial of his constitutional
right to due process. Basic rule in Civil Service that no
officer or employee shall be terminated except for cause
and after due process.
The RTC DISMISSED the petition for being premature.
MR was denied. Paloma appealed to the CA.
Meanwhile, Paloma also filed a Complaint before the
Civil Service Commission, raising the same issues. The
CSC exonerated the respondent members of the Board.
CA AFFIRMED RTC decision.
In this petition for review on certiorari, petitioner is in
quest of the reversal of the CA decision. Paloma argues
that: (1) mandamus will lie to compel the performance
of a discretionary duty in case of non-observance of due
process; (2) CA overlooked the fact that since his due
process was violated, he need not exhaust
administrative remedies.
Respondent argues that: (1) Paloma is guilty of forum
shopping; (2) the case is moot due to the dissolution of
the Palompon, Leyte Water District (absorbed by the
municipal government of Palompon); (3) Sec. 23 of PD
128 clearly states that the GM shall serve at the pleasure
of the Board.
Held: NO
Mandamus does not lie to compel the members of the
Board to reinstate Paloma as GM because the Board has
the discretionary power to remove him as clearly stated
in Sec. 23 of PD 128 which categorically provides that
the GM shall serve at the pleasure of the board of
directors.
As earlier ruled by the Court in de Tavera vs. Philippine
Tuberculosis Society Inc., An appointment held at the
pleasure of the appointing power is in essence
temporary in nature. Hence, when the Board opts to
replace the incumbent, technically there is no removal
but only an expiration of the term and in an expiration
of a term, there is no need of prior notice, due hearing
or sufficient grounds before the incumbent can be
separated from office.
In this case, the appointment of Paloma as his
subsequent termination are clearly within the wide area
of discretion which the legislature has bestowed the
appointing power. He is thus at the mercy of the
appointing powers since his appointment can be
terminated at any time for any cause. Paloma is treading
on shaky grounds with his argument that he was
removed without cause and due process.
As regards the exhaustion of administrative remedies,
the Court applied in this case the doctrine of primary
jurisdiction; i.e., courts cannot and will not resolve a
controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially
where the question demands the exercise of sound
experience and services of the administrative tribunal
to determine technical and intricate matters of fact. All
water districts in the country come under the coverage
of the civil service law, rules and regulations.
Thus, the quasi-judicial body Civil Service Commission,
is better equipped in handling cases involving the
employment status of employees as those in the Civil
Service since it is within the field of their expertise.
Other Issues:
Paloma raised the recent passage of a new law, RA
9286, which amended Sec. 23 of PD 128. The new law
states that the GM shall not be removed from office,
except for cause and after due process. However, the
effectivity of the new law took effect only upon its
approval.

There is nothing in the law which provides for its

retroactivity; neither is retroactivity implied;
application of the new law will rob the members of the
Board of their vested rights by PD 128 to terminate
Paloma at their pleasure.

It should be stressed that the Interim Rules was enacted

to provide for a summary and non-adversarial
rehabilitation proceedings. This is in consonance with
the commercial nature of a rehabilitation case, which is
aimed to be resolved expeditiously for the benefit of all
the parties concerned and the economy in general.