G.R. No.

182249 March 5, 2013

TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner,
vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 of Trade and Investment Development Corporation of the Philippines
(TJDCORP) seeking the reversal of the decision2 dated September 28, 2007 and the resolution3 dated March 17,
2008 of the Court of Appeals (CA) in CA-G.R. SP. No. 81058. The assailed CA rulings affirmed the
resolutions,4 dated January 31, 2003 and October 7, 2003, of the Civil Service Commission (CSC), invalidating
Arsenio de Guzman’s appointment as Financial Management Specialist IV in TIDCORP. The CA subsequently
denied the motion for reconsideration that followed.
Factual Antecedents
On August 30, 2001, De Guzman was appointed on a permanent
status as Financial Management Specialist IV of TIDCORP, a government-owned and controlled corporation
(GOCC) created pursuant to Presidential
Decree No. 1080. His appointment was included in TIDCORP’s Report on
Personnel Actions (ROPA) for August 2001, which was submitted to the
CSC – Department of Budget and Management (DBM) Field Office.5
In a letter6 dated September 28, 2001, Director Leticia M. Bugtong disallowed De Guzman’s appointment because
the position of Financial Management Specialist IV was not included in the DBM’s Index of Occupational Service.
TIDCORP’s Executive Vice President Jane U. Tambanillo appealed7 the invalidation of De Guzman’s appointment to
Director IV Agnes Padilla of the CSC-National Capital Region (NCR). According to Tambanillo, Republic Act No.
(RA) 8494, which amended TIDCORP’s charter, empowers its Board of Directors to create its own organizational
structure and staffing pattern, and to approve its own compensation and position classification system and
qualification standards. Specifically, Section 7 of RA 8494 provides:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for officers and
employees of the Trade and Investment Development Corporation of the Philippines (TIDCORP) and upon
recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits: Provided, That
the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-assign personnel of the
TIDCORP, any provision of existing law to the contrary notwithstanding.
All positions in TIDCORP shall be governed by a compensation and position classification system and qualification
standards approved by TIDCORP's Board of Directors based on a comprehensive job analysis and audit of actual
duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in
the private sector and shall be subject to periodic review by the Board no more than once every four (4) years
without prejudice to yearly merit reviews or increases based on productivity and profitability. TIDCORP shall be
exempt from existing laws, rules and regulations on compensation, position classification and qualification standards.
It shall, however, endeavor to make the system to conform as closely as possible to the principles and modes
provided in Republic Act No. 6758.
On the basis of Section 7 of RA 8494, Tambanillo argued that TIDCORP is authorized to adopt an organizational
structure different from that set and prescribed by the CSC. Section 7 exempts TIDCORP from existing laws on
compensation, position classification and qualification standards, and is thus not bound by the DBM’s Index of
Occupational Service. Pursuant to this authority, TIDCORP’s Board of Directors issued Resolution No. 1185, s. 1998
approving the corporation’s re-organizational plan, under which De Guzman was appointed Financial Management
Specialist IV. De Guzman’s appointment was valid because the plan providing for his position followed the letter of
the law.
Tambanillo also noted that prior to De Guzman’s appointment as Financial Management Specialist IV, the position
had earlier been occupied by Ma. Loreto H. Mayor whose appointment was duly approved by Director Bugtong.
Thus, Director Bugtong’s invalidation of De Guzman’s appointment is inconsistent with her earlier approval of
Mayor’s appointment to the same position.
The CSC-NCR’s Ruling
Director Padilla denied Tambanillo’s appeal because De Guzman’s appointment failed to comply with Section 1, Rule
III of CSC Memorandum Circular No. 40, s. 1998, which requires that the position title of an appointment submitted to
the CSC must conform with the approved Position Allocation List and must be found in the Index of Occupational
Service. Since the position of Financial Management Specialist IV is not included in the Index of Occupational
Service, then De Guzman’s appointment to this position must be invalid.8 Director Padilla pointed out that the CSC
had already decided upon an issue similar to De Guzman’s case in CSC Resolution No. 011495 (Geronimo, Rolando
S.C., Macapagal, Vivencio M. Tumangan, Panser E., Villar, Victor G., Ong, Elizabeth P., Re: Invalidated
Appointments; Appeal) where it invalidated the appointments of several Development Bank of the Philippines (DBP)
employees because their position titles did not conform with the Position Allocation List and with the Index of
Occupational Service. Like TIDCORP, the DBP’s charter exempts the DBP from existing laws, rules, and regulations
on compensation, position classification and qualification standards. It also has a similar duty to "endeavor to make
its system conform as closely as possible to the principles under the Compensation and Position Classification Act of
1989 (Republic Act No. 6758, as amended)."9
Lastly, Padilla stressed that the 1987 Administrative Code empowers10 the CSC to formulate policies and regulations
for the administration, maintenance and implementation of position, classification and compensation.
TIDCORP’s appeal to the CSC-CO
In response to the CSC-NCR’s ruling, TIDCORP’s President and CEO Joel C. Valdes sent CSC Chairperson Karina
Constantino-David a Letter11 appealing Director Padilla’s decision to the CSC-Central Office (CO). Valdes reiterated
TIDCORP’s argument that RA 8494 authorized its Board of Directors to determine its own organizational structure
and staffing pattern, and exempted TIDCORP from all existing laws on compensation, position classification and
qualification standards. Citing Javellana v. The Executive Secretary, et al.,12 Valdes asserted that the wisdom of
Congress in granting TIDCORP this authority and exemption is a political question that cannot be the subject of
judicial review. Given TIDCORP’s functions as the government’s export credit agency, its Board of Directors has
been provided flexibility in administering its personnel so that it can hire qualified employees from the private sector,
such as banks and other financial institutions.
In addition, prior actions of the CSC show that it recognized TIDCORP’s exemption from all laws regarding
compensation, position classification and qualification standards of its employees. The CSC has approved prior
appointments of TIDCORP’s officers under its July 1, 1998 re-organization plan. It also approved Mayor’s previous
appointment as Financial Management Specialist IV. Further, a memorandum dated October 29, 1998 issued by the
CSC-NCR noted that "pursuant to Sec. 7 of RA 8494, TIDCORP is exempt from existing laws, rules and regulations
on compensation, position classification and qualification standards."13
The CSC-CO’s ruling
In its Resolution No. 030144, the CSC-CO affirmed the CSC-NCR’s decision that De Guzman’s appointment
14

should have complied with CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular
No. 15, s. 1999. Rule III, Section 1(c) is explicit in requiring that the position title indicated in the appointment should
conform with the Position Allocation List and found in the Index of Occupational Service. Otherwise, the appointment
shall be disapproved. In disallowing De Guzman’s appointment, the CSC-CO held that Director Bugtong was simply
following the letter of the law.
According to the CSC-CO, TIDCORP misconstrued the provisions of Section 7 of RA 8494 in its attempt to bypass
the requirements of CSC Memorandum Circular No. 40, s. 1998. While RA 8494 gave TIDCORP staffing
prerogatives, it would still have to comply with civil service rules because Section 7 did not expressly exempt
TIDCORP from civil service laws.
The CSC-CO also supported the CSC-NCR’s invocation of CSC Resolution No. 011495. Both the charters of the
DBP and TIDCORP have similar provisions in the recruitment and administration of their human resources. Thus, the
ruling in CSC Resolution No. 011495 has been correctly applied in TIDCORP’s appeal.
Lastly, the CSC-CO noted that the government is not bound by its public officers’ erroneous application and
enforcement of the law. Granting that the CSC-NCR had erroneously approved an appointment to the same position
as De Guzman’s appointment, the CSC is not estopped from correcting its officers’ past mistakes.
TIDCORP moved to reconsider15 the CSC-CO’s decision, but this motion was denied,16 prompting TIDCORP to file a
Rule 65 petition for certiorari17 with the CA. The petition asserted that the CSC-CO committed grave abuse of
discretion in issuing Resolution No. 030144 and Resolution No. 031037.
The Appellate Court’s Ruling
The CA denied18 TIDCORP’s petition and upheld the ruling of the CSC-CO in Resolution No. 030144 and Resolution
No. 031037. The CA noted that filing a petition for certiorari was an improper recourse; TIDCORP should have
instead filed a petition for review under Section 1, Rule 43 of the Rules of Court. The CA, however, brushed aside
the procedural defect, ruling that the assailed resolutions should still stand as they are consistent with law and
jurisprudence.
Citing Central Bank of the Philippines v. Civil Service Commission,19 the CA stood by the CSC-CO’s ruling that it has
authority to approve and review De Guzman’s appointment. The CSC has the power to ascertain whether the
appointing authority complied with the requirements of the law; otherwise, it may revoke the appointment. As
TIDCORP is a government-owned corporation, it is covered by civil service laws and is therefore bound by the CSC’s
jurisdiction over all matters pertaining to personnel, including appointments.
Further, the CA cited the CSC’s mandate under the 1987 Constitution to approve or disapprove appointments and to
determine whether an appointee possesses civil service eligibility. As TIDCORP’s charter does not expressly or
impliedly divest the CSC of administrative authority over personnel concerns at TIDCORP, the latter is still covered
by the existing civil service laws on compensation, position classification and qualification standards. Its appointment
of De Guzman as Financial Management Specialist IV should have complied with these rules.
The CA thus concluded that the CSC was well-within its authority when it invalidated De Guzman’s appointment. It
held that an appointee’s title to the office does not permanently vest until the appointee complies with the legal
requirements of his appointment. The requirements include the submission of the appointment to the CSC for the
determination of whether the appointee qualifies to the position and whether the procedure for appointment has been
properly followed. Until these requirements are complied with, his appointment may still be recalled or withdrawn by
the appointing authority.20
TIDCORP moved for reconsideration21 but the CA denied the motion in a resolution22 dated March 17, 2008.
The Present Petition
In its present petition for review on certiorari, TIDCORP argued that the CSC’s interpretation of the last sentence of
23

Section 7 of RA 8494 (which mandates it to endeavor to make the system conform as closely as possible with the
principles provided in RA 6758) is misplaced. This provision does not bar TIDCORP from adopting a position
classification system and qualification standards different from those prescribed by the CSC. TIDCORP asserts that
it is not also duty bound to comply with civil service rules on compensation and position classification, as it is exempt
from all these rules. Instead, TIDCORP is only required to furnish the CSC with its compensation and position
classification system and qualification standards so that the CSC can be properly guided in processing TIDCORP’s
appointments, promotion and personnel action.
Insisting on its exemption from RA 6758 and CSC Memorandum Circular No. 40, s. 1998, TIDCORP emphasizes
that the provisions of RA 6758, which the CSC applied to TIDCORP, is a general law, while TIDCORP’s charter, RA
8494, is a special law. In interpreting conflicting provisions of a general law and a special law, the provisions of the
two laws should be harmonized to give effect to both. But if these provisions cannot be reconciled, then the special
law should prevail because it is a qualification to the general rule.
Further, RA 8494 is a later expression of Congress’ intent as it was enacted nine years after RA 6758 was approved,
and should therefore be construed in this light in its relation with the latter. A new statute should be interpreted in
connection with those already existing in relation to the same subject matter and all should be made to harmonize
and stand together – interpretare et concordare legibus est optimus interpretandi.
Under these principles, TIDCORP argued that Section 7 of RA 8494, the provision of a special law, should be
interpreted as an exemption to RA 6758. Thus, CSC Memorandum Circular No. 40, s. 1998, which was issued
pursuant to RA 6758, should not have been applied to limit TIDCORP’s staffing prerogatives.
In its comment,24 the CSC noted that CSC Memorandum Circular No. 40, series of 1998, as amended by CSC
Memorandum Circular No. 15, s. 1999, was issued in accordance with its authority to prescribe rules and regulations
to carry out the provisions of civil service laws and other pertinent laws (Administrative Code), and not pursuant to
RA 6758.
The CSC maintained that Section 2(1), Article IX-B of the Constitution includes government and controlled
corporations as part of the civil service. TIDCORP, a GOCC, is therefore covered by the civil service rules and by the
CSC. It should submit its Position Allocation List to the DBM, regardless of its exemption under RA 6758.
Lastly, the CSC argued that RA 8494 should not prevail over RA 6758 because the latter also applies to GOCCs like
TIDCORP; RA 8494 even makes a reference to RA 6758.
Issues
The parties’ arguments, properly joined, present to us the following issues:
1) Whether the Constitution empowers the CSC to prescribe and enforce civil service rules and regulations
contrary to laws passed by Congress;
2) Whether the requirement in Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, as
amended by CSC Memorandum Circular No. 15, s. 1999, applies to appointments in TIDCORP; and
3) Whether De Guzman’s appointment as Financial Management Specialist IV in TIDCORP is valid.
The Court’s Ruling
We find the petition meritorious.
Directly at issue is the application of Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, to
appointments in TIDCORP. TIDCORP claims that its exemption, embodied in Section 7 of its charter, precludes the
application of this requirement. The CSC, on the other hand, maintains its stance that appointments in a GOCC
should follow the civil service laws on appointments, regardless of its exemption from the civil service rules on
compensation, position classification and qualification standards.
While the CSC has authority over personnel actions in GOCCs, the rules it formulates pursuant to this mandate
should not contradict or amend the civil service laws it implements.
At the outset, we clarify that the CSC’s authority over personnel actions in TIDCORP is uncontested. Both parties
acknowledge this relationship in the pleadings they filed before the Supreme Court.25 But while TIDCORP asserts
that its charter exempts it from rules on compensation, position classification and qualification standards, the CSC
argues that this exemption is irrelevant to the denial of De Guzman’s appointment because the CSC’s authority over
TIDCORP’s personnel actions requires it to comply with the CSC’s rules on appointments.
The parties’ arguments reveal an apparent clash between TIDCORP’s charter, enacted by Congress, and the CSC
rules, issued pursuant to the CSC’s rule-making power. Does the CSC’s constitutional authority over the civil service
divest the Legislature of the power to enact laws providing exemptions to civil service rules?
We answer in the negative. The CSC’s rule-making power, albeit constitutionally granted, is still limited to the
implementation and interpretation of the laws it is tasked to enforce.
The 1987 Constitution created the CSC as the central personnel agency of the government mandated to establish a
career service and promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil
service.26 It is a constitutionally created administrative agency that possesses executive, quasi-judicial and quasi-
legislative or rule-making powers.
While not explicitly stated, the CSC’s rule-making power is subsumed under its designation as the government’s
"central personnel agency" in Section 3, Article IX-B of the 1987 Constitution. The original draft of Section 3
empowered the CSC to "promulgate and enforce policies on personnel actions, classify positions, prescribe
conditions of employment except as to compensation and other monetary benefits which shall be provided by law."
This, however, was deleted during the constitutional commission’s deliberations because it was redundant to the
CSC’s nature as an administrative agency:27
MR. REGALADO. This is more for clarification. The original Section 3 states, among others, the functions of the Civil
Service Commission — to promulgate and enforce policies on personnel actions. Will Commissioner Aquino kindly
indicate to us the corresponding provisions and her proposed amendment which would encompass the powers to
promulgate and enforce policies on personnel actions?
MS. AQUINO. It is my submission that the same functions are already subsumed under the concept of a central
personnel agency.
MR. REGALADO. In other words, all those functions enumerated from line 35 on page 2 to line 1 of page 3,
inclusive, are understood to be encompassed in the phrase "central personnel agency of the government."
MS. AQUINO. Yes, Mr. Presiding Officer, except that on line 40 of page 2 and line 1 of the subsequent page, it was
only subjected to a little modification.
MR. REGALADO. May we, therefore, make it of record that the phrase ". . . promulgate and enforce policies on
personnel actions, classify positions, prescribe conditions of employment except as to compensation and other
monetary benefits which shall be provided by law" is understood to be subsumed under and included in the concept
of a central personnel agency.
MS. AQUINO. I would have no objection to that.28
The 1987 Administrative Code then spelled out the CSC’s rule-making power in concrete terms in Section 12, Book
V, Title I-A, which empowered the CSC to implement the civil service law and other pertinent laws, and to promulgate
policies, standards and guidelines for the civil service.29
The CSC’s rule-making power as a constitutional grant is an aspect of its independence as a constitutional
commission. It places the grant of this power outside the reach of Congress, which cannot withdraw the power at any
time. As we said in Gallardo v. Tabamo, Jr.,30 a case which upheld the validity of a resolution issued by the
Commission on Elections (COMELEC), another constitutional commission:
Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the
Commission broader and more flexible powers to effectively perform its duties and to insulate it further from
legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the
same at any time. Indeed, the present Constitution envisions a truly independent Commission on Elections
committed to ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of the
people's sacred right of suffrage — the citizenry's vital weapon in effecting a peaceful change of government and in
achieving and promoting political stability. [citation omitted]
But while the grant of the CSC’s rule-making power is untouchable by Congress, the laws that the CSC interprets
and enforces fall within the prerogative of Congress. As an administrative agency, the CSC’s quasi-legislative power
is subject to the same limitations applicable to other administrative bodies. The rules that the CSC formulates must
not override, but must be in harmony with, the law it seeks to apply and implement.31
For example, in Grego v. Commission on Elections,32 we held that it was improper for the COMELEC, a constitutional
body bestowed with rule-making power by the Constitution, to use the word "shall" in the rules it formulated, when
the law it sought to implement uses the word "may." While rules issued by administrative bodies are entitled to great
respect, "the conclusive effect of administrative construction is not absolute. The function of promulgating rules and
regulations may be legitimately exercised only for the purpose of carrying the provisions of the law into effect. x x x
Administrative regulations cannot extend the law nor amend a legislative enactment; x x x administrative regulations
must be in harmony with the provisions of the law," and in a conflict between the basic law and an implementing rule
or regulation, the former must prevail.33
CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. 1999, which were issued pursuant to the
CSC’s rule-making power, involve rules on position classification
Two questions logically follow our conclusion on the extent of the CSC’s rule-making power. The first is whether
Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, was issued pursuant to the CSC’s rule-making
power; the second is whether this provision involves compensation, position classification and/or qualification
standards that TIDCORP claims to be exempt from. We answer both questions in the affirmative.
We agree with the CSC’s position that CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s.
1999, were all issued pursuant to its rule-making power. No less than the introductory clause of CSC Memorandum
Circular No. 40, s. 1998, confirms this:
Pursuant to Paragraphs 2 and 3, Section 12, Book V of Administrative Code of 1987 otherwise known as Executive
Order No. 292, the Civil Service Commission hereby prescribes the following rules to govern the preparation,
submission of, and actions to be taken on appointments and other personnel actions.34
Both these memoranda govern appointments and personnel actions in the civil service. CSC Memorandum Circular
No. 40, s. 1998, or the "Revised Omnibus Rules on Appointments and Other Personnel Actions," updated and
consolidated the various issuances on appointments and other personnel actions and simplified their processing.
This was subsequently amended by CSC Memorandum Circular No. 15, s. 1999.
The assailed provisions in those memorandum circulars, however, involve position classification. Section 1(c), Rule
III of CSC Memorandum Circular No. 40,35 s. 1998, requires, as a condition sine qua non for the approval of an
appointment, that the position title indicated therein conform with the approved Position Allocation List. The position
title should also be found in the Index of Occupational Service. According to National Compensation Circular No. 58,
the Position Allocation List is a list prepared by the DBM which reflects the allocation of existing positions to the new
position titles in accordance with the Index of Occupational Service, Position Titles and Salary Grades issued under
National Compensation Circular No. 57.36 Both circulars were published by the DBM pursuant to its mandate from
RA 6758 to establish a position classification system in the government.37
Further, the CSC admitted in its comment that RA 6758 was the basis for the issuance of CSC Memorandum
Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999. The CSC said:
The abovecited Sections 4 and 6 of R.A. No. 6758 are the bases for respondent’s issuance of CSC Memorandum
Circular No. 40, series of 1998, as amended by CSC Memorandum Circular No. 15, series of 1999. To reiterate, the
Circulars mandate that appointments should conform to the approved Position Allocation List (PAL) and at the same
time be listed in the Index of Occupational Service (IOS).38
Section 7 of TIDCORP’s charter exempts it from rules involving position classification
To comply with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, TIDCORP must conform with
the circulars on position classification issued by the DBM. Section 7 of its charter, however, expressly exempts
TIDCORP from existing laws on position classification, among others.
In its comment, the CSC would want us to disregard TIDCORP’s exemption from laws involving position
classification because RA 6758 applies to all GOCCs. It also noted that Section 7 of RA 8494, the provision
TIDCORP invokes as the source of its exemption, also directs its Board of Directors to "endeavor to make its system
conform as closely as possible with the principles [and modes provided in] Republic Act No. 6758."39 This reference
of RA 6758 in Section 7 means that TIDCORP cannot simply disregard RA 6758 but must take its principles into
account in providing for its own position classifications. This requirement, to be sure, does not run counter to Section
2(1), Article IX-B of the Constitution which provides that "the civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled corporations with
original charters." The CSC shall still enforce position classifications at TIDCORP, but must do this under the terms
that TIDCORP has itself established, based on the principles of RA 6758.
To further expound on these points, the CSC’s authority over TIDCORP is undisputed.1âwphi1 The rules that the
CSC formulates should implement and be in harmony with the law it seeks to enforce. In TIDCORP’s case, the CSC
should also consider TIDCORP’s charter in addition to other civil service laws. Having said this, there remains the
issue of how the CSC should apply the civil service law to TIDCORP, given the exemptions provided in the latter’s
charter. Does the wording of Section 7 of RA 8494 command TIDCORP to follow issued requirements pursuant to
RA 6758 despite its exemption from laws involving position classification?
We answer in the negative. "Under the principles of statutory construction, if a statute is clear, plain and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. This plain-meaning rule or
verba legis is derived from the maxim index animi sermo est (speech is the index of intention) and rests on the valid
presumption that the words employed by the legislature in a statute correctly express its intent and preclude the court
from construing it differently. The legislature is presumed to know the meaning of the words, to have used words
advisedly, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est
recedendum, or from the words of a statute there should be no departure."40
The phrase "to endeavor" means to "to devote serious and sustained effort" and "to make an effort to do." It is
synonymous with the words to strive, to struggle and to seek.41 The use of "to endeavor" in the context of Section 7
of RA 8494 means that despite TIDCORP’s exemption from laws involving compensation, position classification and
qualification standards, it should still strive to conform as closely as possible with the principles and modes provided
in RA 6758. The phrase "as closely as possible," which qualifies TIDCORP’s duty "to endeavor to conform,"
recognizes that the law allows TIDCORP to deviate from RA 6758, but it should still try to hew closely with its
principles and modes. Had the intent of Congress been to require TIDCORP to fully, exactly and strictly comply with
RA 6758, it would have so stated in unequivocal terms. Instead, the mandate it gave TIDCORP was to endeavor to
conform to the principles and modes of RA 6758, and not to the entirety of this law.
These inter-relationships render it clear, as a plain reading of Section 7 of RA 8494 itself would confirm, that
TIDCORP is exempt from existing laws on compensation, position classification and qualification standards,
including compliance with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998.
De Guzman’s appointment as Financial Management Specialist IV is valid
With TIDCORP exempt from Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, there remains the
issue of whether De Guzman’s appointment as Financial Management Specialist IV is valid. Since Section 1(c), Rule
III of CSC Memorandum Circular No. 40, s. 1998,is the only requirement that De Guzman failed to follow, his
appointment actually complied with all the requisites for a valid appointment. The CSC, therefore, should have given
due course to De Guzman's appointment.
WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the
decision dated September 28, 2007 and the resolution dated March 17, 2008 of the Court of Appeals in CA-G.R. SP.
No. 81058, as well 'as Resolution No. 030144 and Resolution No. 031037 of the Civil Service Commission that the
Court of Appeals rulings affirmed. No costs.
SO ORDERED.
G.R. No. 190422 June 19, 2012
RUSSEL ULYSSES I. NIEVES, Petitioner,
vs.
JOCELYN LB. BLANCO, in her capacity as the Regional Director, Regional Office No. V, Department of Trade
and Industry, Respondent.
RESOLUTION
REYES, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul and set
aside the Decision1 dated September 10, 2009 issued by the Court of Appeals (CA) and the Resolution2 dated
November 24, 2009 denying the Motion for Reconsideration thereof in CA-G.R. SP No. 102174 which reversed and
set aside Resolution Nos. 071693 and 072374 dated August 24, 2007 and December 17, 2007, respectively, of the
Civil Service Commission (CSC).
Petitioner Russel Ulysses I. Nieves (Nieves) is a regular employee of the Department of Trade and Industry (DTI)
with the position of Trade and Industry Development Specialist. He was formerly assigned to the DTI’s office in
Sorsogon (DTI-Sorsogon). On the other hand, respondent Jocelyn LB. Blanco (Blanco) is the Regional Director of
DTI Regional Office in Region V.
On February 10, 2005, Blanco issued Regional Office Order No. 09 which directed Nieves’ reassignment from DTI-
Sorsogon to DTI’s provincial office in Albay (DTI-Albay). Nieves appealed his reassignment to the CSC’s Regional
Office in Legazpi City (CSC Regional Office No. V) which, however, dismissed his appeal on March 18, 2005 for his
failure to comply with the requirements of an appeal. Nieves forthwith complied with the reassignment order and
reported for work at DTI-Albay.
A year after his reassignment to DTI-Albay, Nieves requested Blanco for his reassignment back to DTI-Sorsogon. He
asserted that, under Section 6(a) of the Omnibus Rules on Appointments and other Personnel Actions, as amended
by CSC Memorandum Circular No. 02-05 (Revised Rules on Reassignment), reassignment of employees with
station-specific place of work is allowed only for a maximum period of one year. Considering that more than a year
had passed since he was reassigned to DTI-Albay, Nieves claimed that Blanco was duty-bound to reassign him back
to DTI-Sorsogon.
In a letter dated May 12, 2006, Blanco denied Nieves’ request, stating that the latter’s appointment as Trade and
Industry Development Specialist in the DTI is not station specific and, hence, the one-year period limitation with
regard to reassignment of employees does not apply to his case.
On June 21, 2006, Nieves filed a complaint with the CSC Regional Office No. V against Blanco, alleging that the
latter committed grave abuse of authority, grave misconduct and oppression when she denied his request for
reassignment back to DTI-Sorsogon. Nieves claimed that Blanco’s refusal to reassign him back to DTI-Sorsogon was
but an offshoot of the antipathy between him and DTI-Sorsogon Provincial Director Leah Pagao (Pagao). Allegedly,
Nieves had previously filed a complaint with the Presidential Anti-Graft Commission against Pagao and, in reprisal,
Blanco reassigned him to DTI-Albay.
On July 12, 2006, Nieves’ complaint against Blanco was referred to the Office of Legal Affairs of the CSC for
appropriate action. On August 24, 2007, the CSC issued Resolution No. 071693,3 the decretal portion of which reads:
WHEREFORE, the complaint against Jocelyn LB. Blanco, Regional Director, Department of Trade and Industry
Regional Office (DTI-RO) No. V, Legazpi City is hereby DISMISSED for lack of jurisdiction. The letter dated May 12,
2006 of Regional Director Jocelyn LB. Blanco, DTI-RO No. V, is REVERSED AND SET ASIDE. Accordingly, Russel
Ulysses I. Nieves, Trade and Industry Development Specialist, DTI-RO No. V, Legazpi City, shall be reinstated to his
original station in DTI-Sorsogon.
The Civil Service Commission Regional Office No. V, Rawis, Legazpi City is directed to monitor the implementation
of this Resolution and to submit a report to the Commission within fifteen (15) days from receipt of the Resolution.4
The CSC, invoking the provisions of Rule I, Section 5, A(4) of the Uniform Rules on Administrative Cases, held that it
does not have jurisdiction to adjudicate the charge against Blanco for grave abuse of authority, grave misconduct
and oppression, since the latter is a third level official who is a presidential appointee.
Nevertheless, the CSC proceeded to determine the propriety of the reassignment order issued by Blanco. The CSC
pointed out that Nieves’ appointment as Trade and Industry Development Specialist is not station-specific.
Nevertheless, the CSC averred that this does not mean that Nieves could be reassigned to DTI-Albay indefinitely. It
ruled that under the Revised Rules on Reassignment, a reassignment outside the geographical location, if without
the consent of the employee concerned, should not exceed the maximum period of one year. The CSC explained
that:
Rule III, Section 6(a) of the Omnibus Rules on Appointments and Other Personnel Actions (Amended by CSC
Memorandum Circular No. 2, series of 2005), states as follows:
xxxx
"6. Reassignment outside geographical location if with consent shall have no limit. However, if it is without
consent, reassignment shall be for one (1) year only. Reassignment outside geographical location may be
from one regional office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.["]
xxxx
From the foregoing it is clear that after the lapse of one year from Nieves’ reassignment, he must be reinstated to his
original assignment in DTI-Sorsogon. A perusal of his submitted appointment would show that his appointment is not
station-specific. However, this shall not prevent the reinstatement of Nieves to his original station in DTI-Sorsogon.
Due to the fact that Nieves was reassigned to DTI-Albay which is outside the geographical location of DTI-Sorsogon,
said reassignment may only be allowed for a period of one (1) year as it was made without the consent of Nieves.
Verily, after the lapse of the period of one (1) year from his reassignment, Nieves must be reinstated to his original
station.5
Blanco filed a Motion for Partial Reconsideration of the Resolution No. 071693 but the same was denied by the CSC
in its Resolution No. 0723746 dated December 17, 2007.
Blanco then filed a petition for review with the CA, asserting that the CSC acted without factual and legal basis in
directing the reassignment of Nieves in DTI-Sorsogon. On September 10, 2009, the CA rendered the herein assailed
Decision the dispositive portion of which reads:
WHEREFORE, the petition is GRANTED. The assailed Resolutions No. 071693 and 072374, dated August 24, 2007
and December 17, 2007, respectively, of the Civil Service Commission, with respect to the reinstatement of private
respondent Russel Ulysses I. Nieves, Trade and Industry Development Specialist, to his original station in DTI-
Sorsogon, are hereby REVERSED and SET ASIDE.
Petitioner’s Application for the Issuance of Temporary Restraining order and/or Writ of Preliminary Injunction is now
MOOT and ACADEMIC.
SO ORDERED.7
In reversing the CSC’s disposition with regard to the propriety of Nieves’ reassignment back to his original station in
DTI-Sorsogon, the CA asserted that the phrase "reassignment outside geographical location" should be confined to
reassignments from one regional office to another or from the central office to a regional office and vice-versa.
Accordingly, the CA held that Nieves’ reassignment to DTI-Albay is not affected by the one-year limitation set forth
under the Revised Rules on Reassignment since the same is within the same regional office, i.e. from DTI-Sorsogon
to DTI-Albay. Thus:
From the foregoing, it is crystal clear that a reassignment outside geographical location is a reassignment from one
regional office to another regional office or from regional office to the central office or vice versa. Since the
reassignment of respondent from DTI-Sorsogon to DTI-Albay is within same regional office which is Region V, the
same shall have no limit even if without his consent, as long as there is no reduction in rank status and salary.8
Nieves sought reconsideration9 of the Decision dated September 10, 2009 but the same was denied by the CA in its
Resolution10 dated November 24, 2009.
Unperturbed, Nieves instituted the instant petition for review on certiorari asserting that a "reassignment outside
geographical location" should not be restricted to a reassignment from one regional office to another or from the
regional office to the central office and vice-versa. He insists that it should include movement from one provincial
office to another because one such office is necessarily outside the geographical location of the other. Further, he
avers that the CA should have accorded respect and finality to the CSC’s interpretation of the provisions of the
Revised Rules on Reassignment.
On the other hand, Blanco, in her Comment,11 contends that the CA did not err when it delimited the phrase
"reassignment outside geographical location" as referring only to reassignments from one regional office to another
or from the regional office to the central office and vice-versa. Thus, she asserts that Nieves could be reassigned
anywhere within the geographical location of Region V without his consent even for more than one year, provided
that there is no diminution in his rank, salary or status.
The petition lacks merit.
The CSC, being the central agency mandated to "prescribe, amend, and enforce rules and regulations for carrying
into effect the provisions of the Civil Service Law and other pertinent laws," has the power to interpret its own rules
and any phrase contained in them, with its interpretation being accorded great weight and ordinarily controls the
construction of the courts.12
http://sc.judiciary.gov.ph/jurisprudence/2006/jan2006/G.R. NO. 135992.htm - _ftnHowever, courts will not hesitate to
set aside such executive interpretation when it is clearly erroneous, or when there is no ambiguity in the rule, or
when the language or words used are clear and plain or readily understandable to any ordinary
reader.http://sc.judiciary.gov.ph/jurisprudence/1999/nov99/129958.htm - _edn2213 This case falls within the
exceptions.
At the crux of the instant controversy is the proper construction of the provisions of Section 6 of the Revised Rules on
Reassignment which, in part, reads:
Sec. 6. x x x
xxxx
Reassignment shall be governed by the following rules:
1. These rules shall apply only to employees appointed to first and second level positions in the career and
non-career services. Reassignment of third level appointees is governed by the provisions of Presidential
Decree No. 1.
2. Personnel movements involving transfer or detail should not be confused with reassignment since they are
governed by separate rules.
3. Reassignment of employees with station-specific place of work indicated in their respective appointments
shall be allowed only for a maximum period of one (1) year. An appointment is considered station-specific
 when the particular office or station where the position is located is specifically indicated on the face of the
appointment paper. Station-specific appointment does not refer to a specified plantilla item number since it is
used for purposes of identifying the particular position to be filled or occupied by the employee.
4. If appointment is not station-specific, the one-year maximum period shall not apply. Thus, reassignment of
employees whose appointments do not specifically indicate the particular office or place of work has no
definite period unless otherwise revoked or recalled by the Head of Agency, the Civil Service Commission or
a competent court.
5. If an appointment is not station-specific, reassignment to an organizational unit within the same building or
from one building to another or contiguous to each other in one work area or compound is allowed.
Organizational unit refers to sections, divisions, and departments within an organization.
6. Reassignment outside geographical location if with consent shall have no limit. However, if it is without
consent, reassignment shall be for one (1) year only. Reassignment outside geographical location may be
from one Regional Office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.
7. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise
or if it constitutes constructive dismissal. x x x (Emphasis supplied)
The language of the Revised Rules on Reassignment is plain and unambiguous. The reassignment of an employee
with a station-specific place of work indicated in their respective appointments is allowed provided that it would not
exceed a maximum period of one year. On the other hand, the reassignment of an employee whose appointment is
not station-specific has no definite period unless otherwise revoked or recalled by the Head of the Agency, the CSC
or a competent court.
Nevertheless, if the employee without a station-specific place of work is reassigned outside the geographical location
of his/her present place of work, then the following rules apply: first, if the reassignment is with the consent of the
employee concerned, then the period of the same shall have no limit; second, if the reassignment is without the
consent of the employee concerned, then the same should not exceed the maximum period of one year.
Here, it is undisputed that Nieves’ appointment as a Trade and Industry Development Specialist is not station-
specific. Thus, the period of his reassignment to DTI-Albay is indefinite, unless otherwise revoked or recalled by the
Head of the Agency, the CSC or a competent court. Further, since the reassignment of Nieves was within the same
regional office, i.e. from DTI-Sorsogon to DTI-Albay, the one-year period limitation does not apply.
Nieves’ insistence that a "reassignment outside geographical location" should likewise include a reassignment from
one provincial office to another provincial office is untenable.
To stress, the Revised Rules on Reassignment has defined, albeit ostensively, what constitutes a "reassignment
outside geographical location". It states that "[r]eassignment outside geographical location may be from one
[r]egional [o]ffice x x x to another [regional office] or from the [regional office] to the [c]entral [o]ffice x x x and vice-
versa.14 A perusal of the foregoing would show that the Revised Rules on Reassignment has clearly confined the
coverage of the phrase "reassignment outside geographical location" to the following: (1) reassignment from one
provincial office to another; (2) reassignment from the regional office to the central office; and (3) reassignment from
the central office to the regional office.
Nieves asserts that the use of the word "may" operates to confer discretion on the part of the CSC to consider any
other reassignments as one which is outside the geographical location and that the circumstances cited in the said
provision are mere examples of reassignments outside geographical location. We do not agree.
It is true that the use of the word "may" ordinarily operates to confer discretion.1âwphi1 However, this term may be
construed, as it is in this case clearly intended to be, in a mandatory and restrictive sense.15 The said provision used
the word "may" to emphasize that a "reassignment outside geographical location" is restricted only to either
reassignment from one regional office to another regional office or a reassignment from the central office to a
regional office and vice-versa.
Moreover, if we are to follow Nieves’ assertion that the instances stated in the said provision are merely examples,
then every reassignment effected by the various offices could be considered as a "reassignment outside
geographical location" depending on the discretion of the CSC. Surely, this is not what the Revised Rules on
Reassignment intended.
Thus, Nieves’ insistence that a reassignment from one provincial office to another provincial office within the same
region should likewise be considered as a "reassignment outside geographical location" is clearly but a foray in the
dark.
Further, Nieves’ assertion that his reassignment to DTI-Albay constitutes constructive dismissal as it caused him
significant financial dislocation is also devoid of merit. This is a mere allegation that Nieves utterly failed to
substantiate. It bears stressing that a reassignment is presumed to be regular and made in the interest of public
service.16
Anent Nieves’ prayer for an award of moral damages, we deny the same for lack of legal and factual bases.
All told, we find that the CA did not commit any error in ruling that the one-year period limitation set forth in the
Revised Rules on Reassignment finds no application in the instant case.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision dated
September 10, 2009 and the Resolution dated November 24, 2009 issued by the Court of Appeals in CA-G.R. SP
No. 102174 are AFFIRMED.
SO ORDERED.
G.R. No. 141020 June 12, 2008
CASINO LABOR ASSOCIATION, petitioner,
vs.
COURT OF APPEALS, PHIL. CASINO OPERATORS CORPORATION (PCOC) and PHIL. SPECIAL SERVICES
CORPORATION (PSSC), respondents.
DECISION
PUNO, C.J.:
This petition for certiorari1 assails the Decision2 and Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No.
50826. The CA dismissed the petition for certiorari filed by the petitioner against the First Division of the National
Labor Relations Commission (NLRC) and denied petitioner's motion for reconsideration.
The series of events which ultimately led to the filing of the petition at bar started with the consolidated cases4 filed
by the petitioner labor union with the Arbitration Branch of the NLRC. In an Order5 dated 20 July 1987, the Labor
Arbiter dismissed the consolidated cases for lack of jurisdiction over the respondents therein, Philippine Amusement
and Gaming Corporation (PAGCOR) and Philippine Casino Operators Corporation (PCOC).
On appeal to the NLRC, the Commission en banc issued a Resolution6 dated 15 November 1988, which dismissed
the separate appeals filed by the petitioner on the ground that the NLRC has no jurisdiction over PAGCOR.
Petitioner then elevated the case to this Court, via a petition for review on certiorari,7 entitled Casino Labor
Association v. National Labor Relations Commission, Philippine Amusement & Gaming Corporation,
Philippine Casino Operators Corporation and Philippine Special Services Corporation and docketed as G.R.
No. 85922. In a Resolution8 dated 23 January 1989, the Third Division of the Court dismissed the petition for failure
of the petitioner to show grave abuse of discretion on the part of the NLRC.
Petitioner filed a motion for reconsideration, but the same was denied with finality in a 15 March 1989
Resolution.9The Resolution states, in part:
x x x Any petitions brought against private companies will have to be brought before the appropriate agency
or office of the Department of Labor and Employment.
Based solely on that statement, petitioner filed a Manifestation/Motion10 with the NLRC praying that the records of
the consolidated cases be "remanded to the Arbitration Branch for proper prosecution and/or disposition thereof
against private respondents Philippine Casino Operators Corporation (PCOC) and Philippine Special Services
Corporation (PSSC)."
Acting on the Manifestation/Motion, the NLRC First Division issued an Order11 dated 30 June 1989, which granted
the motion and ordered that the records of the cases be forwarded to the Arbitration Branch for further proceedings.
Respondents PCOC and PSSC filed a motion for reconsideration. In an Order12 dated 22 July 1994, the NLRC First
Division granted the motion, set aside the 30 June 1989 Order for having been issued without legal basis, and
denied with finality the petitioner's Manifestation/Motion. Petitioner's motion for reconsideration was likewise denied
in a Resolution13 dated 28 November 1997.
Petitioner filed a petition for certiorari14 with this Court asserting that the NLRC First Division committed grave abuse
of discretion in ignoring the mandate of G.R. No. 85922. Petitioner argued that, with the statement "(a)ny petitions
brought against private companies will have to be brought before the appropriate agency or office of the Department
of Labor and Employment," this Court laid down the law of the case and mandated that petitions against respondents
PCOC and PSSC should be brought before the NLRC. By way of resolution,15 this Court referred the case to the CA
in accordance with the ruling in St. Martin Funeral Homes v. NLRC.16
On 22 June 1999, the CA rendered its Decision dismissing the petition for certiorari. The CA found no grave abuse of
discretion on the part of the NLRC First Division when it issued: (a) the 22 July 1994 Order, which set aside its 30
June 1989 Order remanding the case to the Arbitration Branch for further proceedings; and (b) the 28 November
1998 Resolution, which denied petitioner's motion for reconsideration. Petitioner filed a motion for reconsideration,
which the CA denied in its 6 December 1999 Resolution.
Hence, the instant petition for certiorari in which the petitioner raises this sole issue:
CAN THE COURT OF APPEALS IGNORE THE MANDATE OF THE HONORABLE SUPREME COURT'S
RESOLUTION IN G.R. 85922, THAT PETITIONS AGAINST PRIVATE RESPONDENTS PCOC AND PSSC
SHOULD BE TRIED BY THE COMMISSION (NLRC) THRU ITS ARBITRATION BRANCH?
To determine whether the CA acted with grave abuse of discretion correctable by certiorari, it is necessary to resolve
one core issue: whether the Supreme Court, in G.R. No. 85922, mandated that the NLRC assume jurisdiction over
the cases filed against PCOC and PSSC.
The resolution of the case at bar hinges on the intended meaning of the Third Division of the Court when it stated in
its 15 March 1989 Resolution in G.R. No. 85922, viz:
x x x Any petitions brought against private companies will have to be brought before the appropriate agency
or office of the Department of Labor and Employment.
Petitioner considers the foregoing statement as a legal mandate warranting the remand of the consolidated labor
cases to the Arbitration Branch of the NLRC for further proceedings against respondents PCOC and PSSC.
We do not agree.
A court decision must be read as a whole. With regard to interpretation of judgments, Republic v. De Los
Angelesstated:
As a general rule, judgments are to be construed like other written instruments. The determinative factor is the
intention of the court, as gathered from all parts of the judgment itself. In applying this rule, effect must be
given to that which is unavoidably and necessarily implied in a judgment, as well as to that which is expressed
in the most appropriate language. Such construction should be given to a judgment as will give force and
effect to every word of it, if possible, and make it as a whole consistent, effective and reasonable.17
Hence, a close scrutiny of the full text of the 23 January and 15 March 1989 Resolutions in G.R. No. 85922 sheds
much needed light. In the first Resolution, the Third Division of this Court dismissed the petitioner's case in this wise:
The issue in this case is whether or not the National Labor Relations Commission has jurisdiction over
employee-employer problems in the Philippine Amusement and Gaming Corporation (PAGCOR), the
Philippine Casino Operators Corporation (PCOC), and the Philippine Special Services Corporation (PSSC).
The present Constitution specifically provides in Article IX B, Section 2(1) that "the civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters." (Emphasis supplied)
There appears to be no question from the petition and its annexes that the respondent corporations were
created by an original charter, P.D. No. 1869 in relation to P.D. Nos. 1067-A, 1067-C, 1399 and 1632.
In the recent case of National Service Corporation, et al. v. Honorable Third Division, National Labor Relations
Commission, et al. (G.R. No. 69870, November 29, 1988), this Court ruled that subsidiary corporations owned
by government corporations like the Philippine National Bank but which have been organized under the
General Corporation Code are not governed by Civil Service Law. They fall under the jurisdiction of the
Department of Labor and Employment and its various agencies. Conversely, it follows that government
corporations created under an original charter fall under the jurisdiction of the Civil Service Commission and
not the Labor Department.
Moreover, P.D. 1869, Section 18, specifically prohibits formation of unions among casino employees and
exempts them from the coverage of Labor Code provisions. Under the new Constitution, they may now form
unions but subject to the laws passed to regulate unions in offices and corporations governed by the Civil
Service Law.
CONSIDERING the failure of the petitioner to show grave abuse of discretion on the part of the public
respondent, the COURT RESOLVED to DISMISS the petition.
Thus, in resolving the issue of whether or not the NLRC has jurisdiction over employer-employee relations in
PAGCOR, PCOC and PSSC, the Third Division made the definitive ruling that "there appears to be no question from
the petition and its annexes that the respondent corporations were created by an original charter." The Court
collectively referred to all respondent corporations, including PCOC and PSSC, and held that in accordance with the
Constitution and jurisprudence, corporations with original charter "fall under the jurisdiction of the Civil Service
Commission and not the Labor Department." The Court stated further that P.D. 1869 exempts casino employees
from the coverage of Labor Code provisions and although the employees are empowered by the Constitution to form
unions, these are "subject to the laws passed to regulate unions in offices and corporations governed by the Civil
Service Law." Thus, in dismissing the petition, the ruling of the Third Division was clear - - - it is the Civil Service
Commission, and not the NLRC, that has jurisdiction over the employer-employee problems in PAGCOR, PCOC and
PSSC.
In its motion for reconsideration, petitioner lamented that its complaint might be treated as a "pingpong ball" by the
Department of Labor and Employment and the Civil Service Commission. It argued:
x x x the petitioner will now be in a dilemna (sic) for the reason, that the charter creating PAGCOR expressly
exempts it from the coverage of the Civil Service Laws and therefore the petitioner, will now be in a quandary
whether it will be allowed to prosecute its case against PAGCOR before the Civil Service Commission while
its own charter expressly exempts it from the coverage of the Civil Service Law x x x18
The Third Division denied the motion for reconsideration in a Resolution dated 15 March 1989, which contained the
statement upon which the petitioner's whole case relies. The Court stated:
The petitioner states in its motion for reconsideration that the PAGCOR charter expressly exempts it from the
coverage of the Civil Service Laws and, consequently, even if it has an original charter, its disputes with
management should be brought to the Department of Labor and Employment. This argument has no merit.
Assuming that there may be some exemptions from the coverage of Civil Service Laws insofar as eligibility
requirements and other rules regarding entry into the service are concerned, a law or charter cannot
supersede a provision of the Constitution. The fear that the petitioner's complaint will be rejected by the Civil
Service Commission is unfounded as the Commission must act in accordance with its coverage as provided
by the Constitution. Any petitions brought against private companies will have to be brought before the
appropriate agency or office of the Department of Labor and Employment.
CONSIDERING THE FOREGOING, the COURT RESOLVED to DENY the motion for reconsideration. This
DENIAL is FINAL. (emphasis added)
Petitioner contends that the "private companies" referred to therein pertain to respondents PCOC and PSSC, and
consequently, this Court has laid down the law of the case in G.R. No. 85922 and has directed that the cases against
PCOC and PSSC should be prosecuted before the Department of Labor and Employment or NLRC.
Petitioner's contention is untenable. It is well-settled that to determine the true intent and meaning of a decision, no
specific portion thereof should be resorted to, but the same must be considered in its entirety.19 Hence, petitioner
cannot merely view a portion of the 15 March 1989 Resolution in isolation for the purpose of asserting its position.
The 23 January 1989 Resolution already ruled on the NLRC's lack of jurisdiction over all the respondents in the case
- PAGCOR, PCOC and PSSC. The Third Division neither veered away nor reversed such ruling in its 15 March 1989
Resolution to petitioner's motion for reconsideration. A reading of the two aforementioned resolutions clearly shows
that the phrase "private companies" could not have referred to PCOC and PSSC for that would substantially alter the
Court's ruling that petitioner's labor cases against the respondents are cognizable by the Civil Service Commission,
and not by the NLRC. In its assailed decision, the Court of Appeals ratiocinated:
Evidently, the [March 15] Resolution containing the questioned pronouncement did not give legal mandate to
petitioner to file its Petition with the Department of Labor and Employment or any of its agencies. On the
contrary, the Resolution decided with finality that petitions brought against the PAGCOR or similar
agencies/instrumentalities of the government must be filed with the Civil Service Commission which has
jurisdiction on the matter. The questioned pronouncement, to Our mind, was made only to illustrate the
instance when jurisdiction is instead conferred on the Department of Labor vis-à-vis the Civil Service
Commission; that is, when the petitions are filed [against] private companies.
Finally, as pointed out by the Office of the Solicitor General, the subject matter of the pronouncement in
question is "any petition" not the petition filed by petitioners. Likewise, the petition must be one which is
brought against "private companies" not against private respondents. Apparently, the abovequoted
pronouncement is intended to be a general rule that will govern petitions filed against private companies. It is
not intended to be a specific rule that will apply only to the petition filed by herein petitioners. Where the law
makes no distinctions, one does not distinguish. A fortiori, where the questioned pronouncement makes no
distinctions, one does not distinguish.
We agree with the CA. The statement that "(a)ny petitions brought against private companies will have to be brought
before the appropriate agency or office of the Department of Labor and Employment," upon which petitioner's entire
case relies, is of no consequence. It is obiter dictum.
In its memorandum,20 petitioner presents a second issue not otherwise raised in its petition for certiorari, contending
that respondents waived their rights to controvert petitioner's valid and just claims when they filed a motion to dismiss
the consolidated cases with the labor arbiter on the ground of lack of jurisdiction. However, in our 20 August 2003
Resolution requiring the parties to submit their respective memoranda, we specifically stated that "no new issues
may be raised by a party in his/its Memorandum." Moreover, petitioner, in support of this additional issue, presents
its arguments on the merits of the consolidated labor cases. This Court is not a trier of facts. In Santiago v.
Vasquez, we reiterated:
 We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the
same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of
courts in our judicial system by seeking relief directly from this Court despite the fact that the same is
available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by
law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious
time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the
adjudication of the case which often has to be remanded or referred to the lower court as the proper forum
under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts.
We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances
justify availment of a remedy within and calling for the exercise of our primary jurisdiction.21
In this case, the Civil Service Commission is the proper venue for petitioner to ventilate its claims.
The Court is not oblivious to petitioner's plea for justice after waiting numerous years for relief since it first filed its
claims with the labor arbiter in 1986. However, petitioner is not completely without fault. The 23 January 1989
Resolution in G.R. No. 85922, declaring the lack of jurisdiction by the NLRC over PAGCOR, PCOC and PSSC,
became final and executory on March 27, 1989. The petitioner did not file a second motion for reconsideration nor
did it file a motion for clarification of any statement by the Court which petitioner might have thought was ambiguous.
Neither did petitioner take the proper course of action, as laid down in G.R. No. 85922, to file its claims before the
Civil Service Commission. Instead, petitioner pursued a protracted course of action based solely on its erroneous
understanding of a single sentence in the Court's resolution to a motion for reconsideration.
IN VIEW WHEREOF, the instant petition for certiorari is DISMISSED. The assailed 22 June 1999 Decision and 6
December 1999 Resolution of the Court of Appeals in CA-G.R. SP No. 50826 are AFFIRMED.
SO ORDERED.
G.R. No. 178762 June 16, 2010
LUZVIMINDA A. ANG, Petitioner,
vs.
PHILIPPINE NATIONAL BANK, Respondent.
DECISION
ABAD, J.:
This case is about the dismissal of an employee for offenses committed during her employment in a government-
owned corporation but which offenses were discovered after the privatized corporation rehired her to work for it.
The Facts and the Case
In her Position Paper, petitioner Luzviminda A. Ang (Ang) claimed that respondent Philippine National Bank (PNB),
1

then a government-owned corporation, hired her on December 4, 1967 as a probationary clerk. But she rose from
the ranks, eventually becoming an Assistant Department Manager I, a position she held when the PNB was
privatized on May 26, 1996 and when she, like her co-employees, was deemed automatically retired. The bank
computed Ang’s gratuity benefits, the monetary value of her leave credits, and the other benefits due her and cleared
her of any accountability.
But the PNB re-employed Ang as Assistant Manager effective on May 27, 1996 and assigned her in its Tuguegarao,
Cagayan Branch.2 Less than four months later, however, or on September 3, 1996 the PNB administratively charged
her with serious misconduct and willful breach of trust for taking part in a scam, called "kiting operation," where a
depositor used a conduit bank account for depositing several unfunded checks drawn against the same depositor’s
other current accounts and from which conduit bank account he later withdrew those checks. The PNB alleged that
Ang had allowed this illegal activity from January 2 to April 3, 1996 while she was the Assistant Department Manager
I in its Tuguegarao Branch.3
On September 16, 1996 the PNB heaped other charges against Ang of serious misconduct and gross violation of the
bank’s rules and regulations as follows:
-- She issued six certificates of deposit between June 5, 1992 up to January 10, 1996 in amounts exceeding
the true deposit balance of various depositors;
-- She issued two bank commitments dated January 24, 1994 and for providing a credit line in favor of a
government contractor without authority and in violation of SEL Cir. 2-166/91 of July 10, 1996; and
-- She committed tardiness and "under time" from October to December 1995 and January to March 1996 in
violation of Gen. Cir. 1-61/91 of February 1, 1991.4
In answer to the first charge, Ang claimed that it was not a "kiting operation," but an accommodation of a very valued
client. She admitted that the checks were not funded and were converted into account receivables or
accommodation loans that the client had settled, including interests, penalties, and other charges. Consequently, the
PNB did not suffer any loss from those transactions; it even reaped enormous profits from them.5
On the second charge, Ang claimed that the issuance of the certificates had been tolerated to accommodate valued
clients as a marketing strategy and prevent their move to other banks. These had been open transactions, said Ang,
which were known to all the officers of the branch. Again, the PNB did not suffer any loss on account of the issuance
of those certificates. The clients involved maintained their loyalty to the bank.6
On the third charge, Ang claimed that the PNB’s loan commitments in those cases amounted to mere
recommendations since she had no authority to approve loans. Furthermore, she could not have violated SEL Cir. 2-
166/91 dated July 10, 1996 since this was not yet in effect when she issued those commitments on January 24,
1994. Besides, the circular merely prescribed the fees to be collected.7
On the last charge, Ang claimed that she was not covered by the circular governing office hours because she was a
bank officer. Managerial employees, according to her, worked beyond the usual eight hours and even worked on
Saturdays and Sundays. She added that, since the bank had already made deductions for tardiness on her pay
check, she cannot anymore be administratively charged for it.8
Ang further pointed out that the causes for her termination took place when she was yet a government official. The
PNB had since ceased to be government-owned. If she were to be charged for those causes, the jurisdiction over
her case would lie with the Civil Service Commission. Even then, since she already retired from the government
service, the employment that could be terminated no longer existed.9
Ang added that the causes for her termination had also become academic after the PNB cleared her of any
accountability when she once retired from employment with it.
Pending administrative investigation, the PNB assigned Ang to its Aparri Branch on April 3, 1997.10 Its Inspection and
Investigation Unit recommended her dismissal on June 3, 1997 to the Board of Inquiry.11 Ang alleged that the PNB
dismissed her from work on July 25, 1997, withholding her fringe benefits, gratuity benefits, monetary value of her
leave credits, rights and interests in the provident fund, and other benefits due her as of May 26, 1996.12 She sought
reconsideration, but the bank denied it.
On January 27, 1998 Ang filed a complaint against the PNB before the National Labor Relations Commission
(NLRC), Regional Arbitration Branch II, Tuguegarao, Cagayan in NLRC RAB II CN 01-00022-98 for illegal dismissal,
illegal deductions, non-payment of 13th month pay, allowances, separation pay, and retirement benefits with prayer
for payment of moral and exemplary damages, attorney’s fees, and litigation expenses.
Answering the complaint, the PNB claimed that it observed due process in terminating Ang, notifying her of the
charges and giving her a chance to defend herself in a formal hearing but she waived this and opted to submit a
position paper. The PNB Board of Inquiry informed her of its decision before implementing the same. Indeed, she
even sought its reconsideration.13 The PNB pointed out that since it separated petitioner Ang for a just cause, she
was not entitled to termination pay. Further she ceased to be entitled to the benefits she claimed.14
The PNB also pointed out that although it cleared Ang of any accountability before her retirement as a civil servant, it
premised such clearance from existing knowledge and records. The PNB had not yet discovered her frauds and
omissions when it issued the clearance. Besides, what the PNB issued was not really a clearance but a certification
that Ang had no pending administrative case. It issued that certification on August 12, 1996 and filed the first
administrative charge against her on September 3, 1996.15
On March 30, 1999 the Labor Arbiter (LA) rendered a Decision,16 finding the PNB’s dismissal of Ang illegal for failure
to show that the dismissal was for a valid cause and after notice and hearing. Specifically, the PNB failed to prove
any basis for loss of trust. The LA ordered the reinstatement of petitioner Ang to her former position or its substantial
equivalent, without loss of seniority rights and with full backwages and other benefits or their money value from the
time of her actual dismissal on July 25, 1996 up to her reinstatement.
Further, the LA ordered the PNB to pay Ang ₱488,567.87 in gratuity pay plus 1 percent interest per month from the
time it fell due until actual payment, ₱1 million as moral damages, and ₱500,000.00 as exemplary damages plus 10
percent of the total monetary award as attorney’s fees. The LA made the monetary value of her fringe benefits and
others, not included in the computed amount, subject to recomputation upon the finality of the NLRC decision. In
case reinstatement was not feasible, Ang was to have the option to be paid separation pay of at least one month pay
for every year of her 30 years of service in addition to her full backwages and gratuity benefits.
The PNB appealed the decision to the NLRC but the latter dismissed the appeal on January 30, 2004.17 Upon motion
for reconsideration, however, or on October 29, 2004 the NLRC reconsidered its finding of lack of due process,
considering Ang’s admission during direct examination that the PNB informed her of the charges against her and
gave her a chance to present her side with the assistance of a counsel. The NLRC deleted the award of damages
because of absence of bad faith on the part of the PNB officers but maintained the LA’s finding that the PNB had not
proved loss of trust as a ground for dismissal.
On petition for certiorari with the Court of Appeals (CA), the latter rendered a decision on January 30, 2007,18finding
valid reason to uphold Ang’s dismissal from the service for willful breach of the trust reposed in her by the PNB. As to
the procedural aspect, the CA found that without doubt the PNB observed due process in dismissing Ang. She
received two memoranda; first informing her of the charges against her, and second informing her of the decision to
terminate her services. The CA reversed the NLRC Decision and dismissed Ang’s complaint. She moved for
reconsideration, but this was denied.
The Issues Presented
Petitioner presents the following issues:
1. Whether or not the CA erred in finding that the PNB dismissed Ang based on the evidence that she
betrayed its trust in her as a bank officer;
2. Whether or not the CA erred in holding that the PNB accorded Ang due process when it dismissed her from
the service; and
3. Whether or not the CA erred in holding that Ang was not entitled to the benefits that the PNB withheld from
her.
The Court’s Ruling
One. Ang claims that her dismissal by PNB, the private corporation, was illegal since she had committed no offense
under its employ. The offense for which she was removed took place when the government still owned PNB and she
was then a government employee. But while PNB began as a government corporation, it did not mean that its
corporate being ceased and was subsequently reestablished when it was privatized. It remained the same corporate
entity before, during, and after the change over with no break in its life as a corporation.
Consequently, the offenses that Ang committed against the bank before its privatization continued to be offenses
against the bank after the privatization. But, since the PNB was already a private corporation when it looked into
Ang’s offenses, the provisions of the Labor Code governed its disciplinary action.
Ordinarily, the Court would not inquire into factual issues raised in a petition for review but, since the findings of the
CA clashed with those of the LA and the NLRC, such inquiry would be justified in this case. As to the existence of
just cause, it is clear to the Court that Ang did not deny the acts and omissions constituting the offense. The
transcript of stenographic notes taken during her direct examination on April 22, 1998 before the NLRC Regional
Arbitration Branch in Tuguegarao, Cagayan, shows that her defense consisted in her claim that she accommodated
a client’s unfunded checks and issued false bank certificates with the knowledge and consent of the branch manager
and comptroller.
But such uncorroborated defense is unsatisfactory, revealing a mind that was willing to disregard bank rules and
regulations when other branch officers concurred. The PNB rightfully separated her from work for willful breach of the
trust that it reposed in her under the Labor Code. Her defense that the PNB did not suffer any loss is of no moment.
The focal point is that she betrayed the trust of the bank in her fidelity to its interest and rules.
Two. As to the issue of due process, a review of the transcript of stenographic notes taken during Ang’s cross-
examination on December 17, 1998 before the NLRC Regional Arbitration Branch in Tuguegarao, Cagayan, reveals
that she admitted having received from the PNB a memorandum of September 15, 1996, containing the
administrative charges against her and a memorandum of June 3, 1997 containing the decision to terminate her
service.19 She likewise admitted that the bank gave her a chance to present her side and to consult a lawyer.
Three. Ang claims that she is entitled to the monetary value of her leave credits, gratuity benefits, retirement pay,
rights and interests in the provident fund, and other benefits due her as of May 26, 1996.
The PNB points out, however, that Ang did not seek reconsideration from the NLRC of its deletion of the LA’s award
of accrued compensation and other benefits to her. And, although she received an unfavorable decision from the CA,
her motion for reconsideration did not raise the matter of accrued compensation and other benefits. Only before this
Court did she raise them for the first time. But, contrary to the PNB’s position, what the NLRC decision deleted was
only the award of damages. It did not touch the benefits mentioned. Consequently, when the CA apparently deleted
these as well, Ang has a right to elevate the issue before this Court.1avvphi1
Although the transformation of the PNB from a government-owned corporation to a private one did not result in a
break in its life as juridical person, the same idea of continuity cannot be said of its employees. Section 27 of
Presidential Proclamation 50 provided for the automatic termination of employer-employee relationship upon
privatization of a government-owned and controlled corporation. Further, such privatization cannot deprive the
government employees involved of their accrued benefits or compensation. Thus:
Sec. 27. Automatic Termination of Employer-Employee Relations. — Upon the sale or other disposition of
the ownership and/or controlling interest of the government in a corporation held by the Trust, or all or
substantially all of the assets of such corporation, the employer-employee relations between the government
and the officers and other personnel of such corporations shall terminate by operation of law. None of such
officers or employees shall retain any vested right to future employment in the privatized or disposed
corporation, and the new owners or controlling interest holders thereof shall have full and absolute
discretion to retain or dismiss said officers and employees and to hire the replacement or replacements of
any one or all of them as the pleasure and confidence of such owners or controlling interest holders may
dictate.
Nothing in this section shall, however, be construed to deprive said officers and employees of their vested
entitlements in accrued benefits or the compensation and other benefits incident to their employment or attaching to
termination under applicable employment contracts, collective bargaining agreements, and applicable legislation.
Here, when PNB was privatized, Ang’s employment with it as a government-owned corporation ceased. Indeed, the
PNB already computed the retirement and other benefits to which she was entitled as a result of the cessation of her
employment. Since she had no pending administrative case on the day she ceased to be a PNB employee and had
been cleared of any accountability,20 all those benefits already accrued to her on the date of her termination.
Of course, the PNB rehired her immediately but that is another story. In the eyes of the law, her record as employee
of the government-owned PNB was untarnished at the time of her separation from it. In fact, the PNB already
computed the benefits to which she was entitled and readied their payment. The GSIS rule that the PNB now relies
on applied only to employees with pending administrative charge at the time of their retirement. Since Ang had none
of that, the cited rule did not apply to her. The Court sees no reason why she should not receive the benefits which
she earned or which accrued to her as of May 26, 1996.
As for possible benefits accruing to Ang after May 26, 1996, the same should be deemed governed by the Labor
Code since the PNB that rehired her on May 27, 1996 has become a private corporation. Under the Omnibus Rules
Implementing the Labor Code, Book VI, Rule I, Section 7, the employee’s separation from work for a just cause does
not entitle her to termination pay. Thus, the PNB may rightfully withhold Ang’s termination pay that accrued beginning
on May 27, 1996 because of her dismissal.
WHEREFORE, the Court AFFIRMS the Court of Appeals decision dated January 30, 2007 and its resolution dated
July 6, 2007 in CA-G.R. SP 88449 in favor of respondent Philippine National Bank but with the MODIFICATION that
it directs the latter to pay petitioner Luzviminda A. Ang the benefits due her from the bank as of the date of her
retirement on May 26, 1996.
SO ORDERED.
G.R. No. 179793 July 5, 2010
MAGDALENA HIDALGO, EDITHA GONZALES, EUNICE P. MALIMBAN, CHRISTINE VIDAL, CHRISTIAN
CALLEJO, CONSOLACION P. MORENO, SHERINA F. DOREZA, LUZ T. SUCGANG, PRISCILLA F. ESTOYE,
REYNOSO V. GALLANO, ROSITA L. SENEDRIN, JULITA P. DE CASTRO, JULIETA F. PALAFOX, ERLINDO V.
GALANO, JR., ROSALINDA R. SALUD, EVANGELINE D. EVANGELISTA, BABYLINDA N. NOHAY, BELINDA D.
CARDONA, WILMA D. BARCENA, ANABELLE P. MOJADAS, LEONORA GRANADO, RICARDO R.
BARANGCO, ROMEO O. MAICON, DANILO B. ENRICO, MARIANILA SITO, MERLINA A. CATAAN, NEMIA E.
PIANO, SOLEDAD P. RAMOS, DANTE L. PESIGAN, EDA A. JUNIO, MERCEDES R. NAFARRETE, MARILYN S.
GONO, LUZ SAMSON, ERNESTO C. DESEAR, TERESITA G. GONZAGA, TERESITA E. EUSTAQUIO, VIRGINIA
S. MONTEMAYOR, CRISTINA ABANTO, HENRY C. AMORTIZADO, FRANKIE VALERA, NELIA G. CAMORO,
JOYSIE LABRADOR, GERTRUDES FALALES, OPHELIA G. MUSAMAREN, PETRA M. IRINGAN, FRANCISCO
C. CAPIZ, JR., RICKY ECHIEVERA, MA. ELGIN O. ABAIS, JOHN CARANAN, ROMEO LAGUNA, REBECCA C.
BUGUA, NELSON FERRER, HELEN MANRESA, CONSORCIA FAJANEL, MA. JUANA A. GOLFO, RUBYLYN D.
DUMANDAL, FLORECERFINA S. BANDOLIN, FLORENCIO A. QUILATON, JR., GLORIA J. DOMINGO, MAY
MACUGAY, MARY ANN CLAUDIO, ELVIRA KALALO, DOROTEA MARTINEZ, LIGAYA PANEDA, and RENATO
AGUILAR, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, for and in behalf of the ARMED FORCES OF THE PHILIPPINES
COMMISSARY AND EXCHANGE SERVICES (AFPCES), Respondent.
DECISION
VILLARAMA, JR., J.:
Which quasi-judicial agency has jurisdiction to hear and decide complaints for illegal dismissal against an adjunct
government agency engaged in proprietary function? Should the complaint be lodged before the National Labor
Relations Commission (NLRC) or to the Civil Service Commission (CSC)? This is the focal issue that needs to be
resolved in this petition for review on certiorari assailing the Decision1 and Resolution2 of the Court of Appeals in CA-
G.R. SP No. 84801 nullifying the Labor Arbiter’s and the NLRC’s rulings.
Republic of the Philippines has represented respondent Armed Forces of the Philippines Commissary and Exchange
Services (AFPCES) in this recourse. AFPCES is a unit/facility of the Armed Forces of the Philippines (AFP)
organized pursuant to Letter of Instruction (LOI) No. 31, which was issued on November 20, 1972 by then President
Ferdinand Marcos. Under LOI No. 31-A, which amended LOI No. 31, an amount of ₱5 million was set aside from the
Philippine Veterans’ Claims Settlement Fund as seed capital for the AFPCES to be utilized and administered for the
operations and management of all commissary facilities in the military establishments all over the country. AFPCES
was intended to benefit the veterans, their widows and orphans, and the members of the AFP and their dependents.
In December 1972, the AFP General Headquarters (AFP GHQ) issued Staff Memorandum No. 5 formally organizing
the AFPCES.3
In order to socialize the services of AFPCES, General Order No. 920 was issued by the AFP GHQ on July 13, 1976
reorganizing the AFPCES as an AFP-Wide Service Support Unit. General Order No. 920 also provided that all
installation Commissary Exchange Service including their equipment, records and assets shall be assigned and
absorbed by the AFPCES.4 This, in effect, centralized the management of the commissary exchange services to the
AFPCES. On February 26, 1987, General Order No. 138 was issued activating the AFPCES as a regular unit under
the direct control of the AFP Chief of Staff.5
Petitioners, on the other hand, numbering 65 in all,6 were hired as regular employees of AFPCES. Some worked as
food handlers in AFPCES’ catering business and served during social functions held within its premises. Others
occupied positions as computer technicians, auditors, record clerks, cashiers, canvassers, bookkeepers, and
warehousemen.7 Several of them had worked with AFPCES for a number of years, ranging from 4 to 31 years. Since
the start of their employment, petitioners were enrolled in the Social Security System (SSS), with respondent
AFPCES paying its corresponding employer’s share in their monthly SSS contribution.8
Between 1999 and 2001, however, AFPCES advised petitioners to undergo an indefinite leave of absence without
pay, allegedly upon a conditional promise that they would be allowed to return to work as soon as AFPCES’ tax
subsidy is released and upon resumption of its store operations.9
When AFPCES failed to recall petitioners to their work as allegedly promised, petitioners filed a complaint for illegal
(constructive) dismissal with damages against AFPCES before the NLRC.10 On July 4, 2002, after efforts to forge an
amicable settlement had failed, Labor Arbiter Salimathar V. Nambi rendered a decision11 in favor of petitioners by
ordering AFPCES to pay a total of ₱16,007,996.00 as back wages, 13th month pay and separation pay to
petitioners.
AFPCES filed an appeal12 praying, among others, that it be exempted from posting the required appeal bond. The
NLRC, however, denied the plea and gave AFPCES ten (10) days to post an appeal bond. The NLRC likewise
denied AFPCES’ motion for reconsideration. Meanwhile, petitioners sought the immediate execution of the Labor
Arbiter’s decision.
AFPCES filed a petition before the appellate court docketed as CA-G.R. SP. No. 84801, and prayed among others,
for the issuance of a temporary restraining order to enjoin the NLRC from dismissing the appeal and granting
execution of the Labor Arbiter’s decision.
On October 22, 2004, the Court of Appeals issued a Resolution denying AFPCES’ prayer for the issuance of a
temporary restraining order for lack of merit.13
Subsequently, on October 29, 2004, the NLRC dismissed AFPCES’ appeal following its failure to post the required
appeal bond.14 On December 7, 2004, petitioners moved for the execution of the Labor Arbiter’s decision.
On March 17, 2005, the enforcing sheriffs of the NLRC issued a Progress Report15 indicating that writs of execution
and garnishment have been issued against AFPCES’ funds deposited with the Land Bank of the Philippines to
satisfy the Labor Arbiter’s award. The said report noted that AFPCES has reinstated petitioners to their former
positions although Capt. Preciliano M. Ruiz, AFPCES’ commander and general manager, gave no assurance
regarding the payment of petitioners’ salaries.16
On April 7, 2005, the Court of Appeals granted AFPCES’ motion to lift the writ of garnishment and to stay the
execution of the Labor Arbiter’s monetary award. Undaunted, petitioners were able to secure an alias writ of
execution after due hearing before the Labor Arbiter. The issue was again brought before the Court of Appeals.
On August 31, 2006, the appellate court promulgated the assailed Decision in CA-G.R. SP No. 84801 granting
AFPCES’ petition. The Court of Appeals, after applying the Supreme Court’s pronouncement in Duty Free
Philippines v. Mojica,17 explained that since AFPCES is a governmental agency that has no personality separate and
distinct from the AFP, petitioners are considered civil service employees, and that complaints for illegal dismissal
should therefore be lodged not with the Labor Arbiter but with the CSC.18
Aggrieved, petitioners moved for a reconsideration of the said decision, but the appellate court denied the same for
lack of merit.19
Hence, this petition.
Pivotal to the resolution of this petition is a determination of the classification of petitioners’ employment status with
respondent AFPCES. AFPCES asserts that since petitioners are government employees, jurisdiction over their
complaints lies not with the NLRC, but with the CSC. Petitioners, on the other hand, contend that since they do not
belong to the approved plantilla of government personnel, their complaints for illegal dismissal was properly made
before the NLRC.
Let us clarify the matter.
Presidential Decree (PD) No. 807 or the Civil Service Decree of the Philippines20 declares that the Civil Service
Commission shall be the central personnel agency to set standards and to enforce the laws governing the discipline
of civil servants.21 PD No. 807 categorically described the scope of the civil service as embracing every branch,
agency, subdivision, and instrumentality of the government, including every government-owned or controlled
corporations whether performing governmental or proprietary function;22 and construed an agency to mean any
bureau, office, commission, administration, board, committee, institute, corporation, whether performing
governmental or proprietary function, or any other unit of the National Government, as well as provincial, city or
municipal government, except as otherwise provided.23
Subsequently, Executive Order (EO) No. 18024 defined government employees as all employees of all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters.25 It provided that the Civil Service and labor laws shall be followed in the
resolution of complaints, grievances and cases involving government employees.26
In Philippine Refining Company v. Court of Appeals,27 we declared that AFPCES is a government agency that is not
immune from suit since it is engaged in proprietary activities. We find no compelling reason to deviate from such
pronouncement. The historical background of its creation and establishment indicates that AFPCES is an agency
under the direct control and supervision of the AFP as it was established to take charge of the operations and
management of all commissary facilities in military establishments all over the country. By clear implication of law, all
AFPCES personnel should therefore be classified as government employees and any appointment, promotion,
discipline and termination of its civilian staff should be governed by appropriate civil service laws and procedures.
Interestingly, in the course of the proceedings, petitioners did not question or refute such classification of the
AFPCES. They, in fact, averred that AFPCES is not created by a special law to classify it as a government-owned or
controlled corporation with original charter, but a mere entity of the AFP. They also admit that AFPCES is without any
corporate features as it is merely an agency performing proprietary functions not only for the benefit of veterans, their
widows and orphans, and the members of the AFP, but for the public in general.28
Petitioners, however, assert that the pronouncement in Duty Free Philippines should not be applied in the instant
case since the factual milieu of the said case is different from the case at bar.
We partly agree with petitioners.
Like AFPCES, Duty Free Philippines is also a government agency engaged in proprietary activities without separate
corporate existence. Unlike Duty Free Philippines, however, AFPCES committed acts which created an impression
upon petitioners that they fall within the coverage of pertinent labor laws and not the civil service law. First, since the
start of their employment and until their unceremonious indefinite suspension from work, AFPCES have enrolled
petitioners to the SSS, the primary governmental agency engaged in providing social security benefits to employees
of the private sector, instead of the Government Service Insurance System (GSIS) as mandated by Commonwealth
Act No. 186.29 AFPCES even remitted its corresponding employer’s share to petitioners’ SSS contributions. Such
practice has been continuously observed by the AFPCES in the span of more than three (3) decades.
Second, the hiring, appointment and discipline of AFPCES employees never went through the proper procedure as
required by pertinent civil service laws and regulations. In a formal request made by Feliciano M. Gacis, Jr., Officer-
in-Charge of the Office of the Assistant Secretary for Personnel of the Department of National Defense, inquiring
from the CSC whether petitioners are indeed government employees covered by the Civil Service Law and CSC
regulations, the said Commission issued a Resolution containing the following findings:
It is explicit that the aforequoted LOI merely set aside a fund in the amount of five (5) [m]illion [p]esos for the
operation of a commissary in all military establishments in the country for the benefit of veterans, their widows and
orphans, and the members of the Armed Forces of the Philippines. And the fund and commissary shall be managed
by an entity called AFPCES. It can, thus, be said that the AFPCES is a mere entity in the Armed Forces of the
Philippines that is tasked to manage a commissary in different military establishments for the benefit of those
mentioned in the said LOI. Hence, it does not necessarily follow that all its civilian employees are considered
government employees covered by and subject to the Civil Service Law and rules.
Section 2 (1), Article IX B of the 1987 Constitution defines the scope of the civil service, as follows:
"Sec. 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters."
From the aforequoted constitutional provision, it is clear that only government-owned or controlled corporations with
original charters are embraced by the civil service. Hence, the question now that needs to be answered is: Can LOI
31-A be considered as the charter of the AFPCES such that it can be considered a government-owned or controlled
corporation embraced by the Civil Service Law and rules?
After a careful evaluation and scrutiny of LOI 31-A, the Commission is of the opinion and so holds that the said LOI
could hardly be considered as the charter of AFPCES. It should be noted that the said LOI does not specify the
composition of AFPCES, its specific functions, its governing board, its powers and the limitation of the exercise
thereof. In short, the said LOI does not provide the AFPCES corporate features. This being the case, the AFPCES
cannot be considered a government-owned or controlled corporation with original charter. In fact, the AFPCES does
not exercise corporate powers. Accordingly, its civilian employees cannot be considered as government employees
covered by the Civil Service Law and rules.
xxxx
Further, there is neither a showing that the positions of civilian employees of the AFPCES are included in the plantilla
of personnel duly approved by the Department of Budget and Management (DBM) nor said employees were issued
appointments attested by the Commission.
WHEREFORE, the Commission hereby rules that all civilian employees of the Armed Forces of the Philippines
Commissary and Exchange Service are not government employees covered and embraced by the Civil Service Law
and rules.30
Indeed, petitioners’ employment to the AFPCES should have been made in conformity with pertinent civil service
regulations since AFPCES is a government agency under the direct control and supervision of the AFP. However,
since this did not happen, petitioners were placed under an anomalous situation with AFPCES insisting that they are
government employees under the jurisdiction of the CSC, but with the CSC itself disavowing any jurisdiction over
them.1avvphi1
This notwithstanding, since it cannot be denied that petitioners are government employees, the proper body that has
jurisdiction to hear the case is the CSC. Such fact cannot be negated by the failure of respondents to follow
appropriate civil service rules in the hiring, appointment, discipline and dismissal of petitioners. Neither can it be
denied by the fact that respondents chose to enroll petitioners in the SSS instead of the GSIS. Such considerations
cannot be used against the CSC to deprive it of its jurisdiction. It is not the absence or presence of the required
appointment from the CSC, or the membership of an employee in the SSS or in the GSIS that determine the status
of the position of an employee. We agree with the opinion of the AFP Judge Advocate General that it is the
regulation or the law creating the Service that determines the position of the employee.31
Petitioners are government personnel since they are employed by an agency attached to the AFP. Consequently, as
correctly observed by the Court of Appeals, the Labor Arbiter’s decision on their complaint for illegal dismissal cannot
be made to stand since the same was issued without jurisdiction. Any decision issued without jurisdiction is a total
nullity, and may be struck down at any time.32
However, given petitioners’ peculiar situation, the Court is constrained not to deny the petition entirely, but instead to
refer it to the CSC pro hac vice. The Court notes that this case has been pending for nearly a decade, but deciding it
on the merits at this juncture, while ideal and more expeditious, is not possible. The records of the case fail to
adequately spell out the validity of the complaint for illegal dismissal as well as the actual amount of the claim. In fact,
the records even fail to disclose the amount of salary received by petitioners while they were engaged to work in
AFPCES’ facilities. But rather than directing petitioners to re-file and relitigate their claim before the CSC – a step
which will only duplicate much of the proceedings already accomplished – the Court deems it best, pro hac vice,
toorder the NLRC to forward the entire records of the case directly to the CSC which is directed to take cognizance
of the case. The CSC is directed to promptly resolve whether petitioners were illegally dismissed from the service,
and whether they are entitled to their monetary claims. Further, taking into consideration AFPCES’ failure to observe
the proper procedure required by pertinent civil service rules and regulations regarding the hiring, appointment and
placement of petitioners, we likewise caution the CSC not to use the AFPCES’ inefficiency to prejudice the status of
petitioners’ employment or to deny whatever right they may have under pertinent civil service laws. To hold otherwise
would only be giving premium to AFPCES’ delinquent attitude towards petitioners in particular, and to the civil service
in general. The AFPCES cannot be made to have its cake and eat it, too.
WHEREFORE, the petition is PARTLY GRANTED. The Court of Appeals Decision dated August 31, 2006 in CA-
G.R. SP No. 84801 and its Resolution dated September 18, 2007 are hereby SET ASIDE.
The National Labor Relations Commission (NLRC) is DIRECTED to forward the records of the case (NLRC-NCR
Case No. 03-01533-2001-NLRC NCR Case No. 032920-02) to the Civil Service Commission (CSC), which is ordered
to promptly proceed with the resolution of the case on the merits with deliberate dispatch.
SO ORDERED.
G.R. No. 191940 April 12, 2011
PHILIPPINE CHARITY SWEEPSTAKES OFFICE BOARD OF DIRECTORS and REYNALDO P.
MARTIN,Petitioners,
vs.
MARIE JEAN C. LAPID, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review under Rule 45 of the Rules of Court filed by petitioners Philippine Charity Sweepstakes
Office Board of Directors (PCSO) and Reynaldo P. Martin against respondent Marie Jean C. Lapid (Lapid). The
petition challenges: (1) the November 18, 2009 Decision1 of the Court of Appeals (CA) granting the petition and
ordering the reinstatement and retention of the respondent in the service until the expiration of her casual
employment, unless she had been earlier dismissed for cause in another case; and (2) the April 13, 2010
Resolution2denying the Motion for Reconsideration of petitioners.
THE FACTUAL ANTECEDENTS
(as recited by the Civil Service Commission and adopted by the CA):
Marie Jean C. Lapid [‘Lapid’], Casual Clerk (Teller), Philippine Charity Sweepstakes Office (PCSO), Bataan
Provincial District Office, Balanga, Bataan, appeals the Decision of the PCSO, embodied in Board Resolution No.
340, Series of 2005, dated October 12, 2005, through the PCSO Board of Directors, which found her guilty of
Discourtesy in the Course of Official Duties and Grave Misconduct and imposed on her the penalty of Dismissal from
the Service.
The appealed Decision reads, in part, as follows:
RESOLVED, that the Board of Directors confirms, as it hereby confirms, the recommendation of the Assistant
General Managers for On Line Lottery and Administration, and OIC Manager for Northern and Central Luzon, On
Line Lottery Sector, the termination of Marie Jean Lapid, as Casual-Teller assigned at the Bataan Provincial District
Office for Discourtesy in the Course of Official Duties and Grave Misconduct effective immediately subject to
compliance with applicable Civil Service rules and regulations.
xxx xxx xxx
Records show that the present case is rooted on the Sworn Statement executed by Mr. Lolito O. Guemo, Chief
Lottery Operations Officer, Philippine Charity Sweepstakes Office (PCSO) Bataan Provincial District on June 23,
2005. Said Sworn Statement documented an incident which allegedly occurred on June 17, 2005, wherein
respondent-appellant Marie Jean C. Lapid, Casual Clerk (Acting Teller), confronted, badmouthed and shouted
invectives at Mr. Guemo, in the presence of other employees and patients seeking assistance from the PCSO-
Bataan Provincial District Office. The same document also included the filing of an administrative complaint against
appellant, which read, as follows:
‘8. That in view of the foregoing, I am filing an administrative charge against Ms. Marie Jean C. Lapid, designated
Casual Teller for violation of civil service rules and regulations for Misconduct; Discourtesy of official function (sic);’
Guemo’s declaration in his sworn statement was also documented in the Memorandum sent by the former to
Josefina Sarsonas, then OIC Manager of the PCSO Northern and Central Luzon Department, dated June 20, 2005.
The said Memorandum informed Sarsonas of the incident which occurred in the PCSO-Bataan Provincial District
Office on June 17, 2005. Pertinent portions of Guemo’s Incident Report, are as follows:
‘The facts of the case are as follows: Ms. Jean Lapid was heard crying for unknown reason. Minutes later, she
confronted me at the table of Mr. Manuel Arazas, SLOO Accountant while we are discussing about the report to be
submitted to the Commission on (sic) Audit. ‘I asked Ms. Lapid if she had a problem.’ Right then and there, she
shouted at me with patients around who were seeking medical assistance. I told her to please calm down and asked
her to discuss her problem in front of my table. I tried to give her a seat but she remained standing and again
shouting at me and saying something like these (sic), ‘Tawagin ninyo na ako sir na bastos wala akong pakialam at
talagang bastos ako at magkakabastusan na tayo dito. Inaamin ko na ako ay bastos.’ Pero mas bastos ka sa akin
dahil tinanggalan ninyo ako ng telepono at iniusog ninyo ang mga lotto supplies malapit sa teller booth para si Tracy
Anne ay hindi makagtrabaho (sic) doon. Pinapagamit ninyo sa kanya ang maliit na office table na ayaw naman niya.
Then she continued saying with high tone without due respect to the undersigned and shouting bastos ka, bastos ka,
while she was finger pointing at me.’
The foregoing incident report was also signed by six (6) employees of the PCSO-Bataan Provincial District Office, as
witnesses. The information contained in the Incident Report and Sworn Statement of Guemo was also echoed in the
incident report of Security Guard Jayson M. Enriquez, who was assigned to the PCSO-Bataan Provincial District
Office at the time of the incident.
On June 20, 2005, Guemo sent a Memorandum to respondent-appellant Lapid, requiring her to explain in writing
within seventy two (72) hours why no administrative charges should be filed against her as a result of the June 17,
2005 incident. Lapid was also furnished with a copy of the incident report. On June 24, 2005, respondent-appellant
submitted her reply to Guemo’s June 20, 2005 Memorandum. In respondent-appellant’s reply she denied the events,
as stated in Guemo’s incident report, and gave her own version of the incident. Lapid also alluded to the filing of a
case against Guemo with this Commission for harassment, insulting behavior, discourtesy and oppression.
The PCSO Legal Department, through Investigating Officer Atty. Victor M. Manlapaz, sent a Memorandum to Lapid
on June 27, 2005, asking the latter to respond to the Affidavit-Complaint of Guemo. Respondent-appellant submitted
her ‘Answer, with Comment and Motion and Motion to Dismiss’ on July 19, 2005. In her Answer, Lapid stated that
Guemo’s complaint against her must be dismissed on the ground that the said complaint does not conform to the
essential requisites prescribed by Section 8 of the Uniform Rules in Administrative Cases in the Civil Service. She
also asserted that the administrative offense of ‘Discourtesy of Official Function’ does not exist under Civil Service
Rules. Complainant Guemo filed his reply to the Answer of respondent-appellant on July 29, 2005.
On August 11, 2005, the Legal Department of the PCSO submitted its recommendation to the PCSO General
Manager and Board of Directors for the issuance of the Formal Charge against respondent-appellant for Discourtesy
in the Course of Official Duties and Grave Misconduct. x x x.
xxx xxx xxx
The PCSO also submitted a copy of the Resolution of the Legal Department signed by Atty. Victor M. Manlapaz,
Investigating Officer, on the issuance of the Formal Charge, as well as an unsigned copy of the Formal Charge, with
PCSO General Manager Rosario Uriarte as signatory. Both documents are dated August 11, 2005.
On August 31, 2005, Guemo, again, sent a Memorandum to Sarsonas, to report an incident which occurred on
August 31, 2005 involving respondent-appellant. In the Incident Report, Guemo stated that on said date, between
4:10 to 4:20 in the afternoon, respondent-appellant, for no apparent reason or provocation, painted over her name,
the name of Tracy Anne Ventura and that of Rolando S. Manlapid in the Organizational Chart of the PCSO-Bataan
Provincial District Office. During the said incident, respondent-appellant shouted within the hearing of those present
that Guemo ordered her to paint over the name of Manlapid. She also shouted threats and invectives against
Guemo. Another incident involving respondent-appellant took place on October 6, 2005, where the latter caused a
scene in the office. The incident was again witnessed by her co-employees and some of them also signed as
witnesses in the Incident Report that Guemo wrote to PCSO General Manager Rosario C. Uriarte.
In Resolution No. 340, Series of 2005 dated October 12, 2005, the PCSO Board of Directors resolved to confirm
the recommendation to terminate the services of Marie Jean Lapid due to Discourtesy in the Course of Official
Duties and Grave Misconduct. Respondent-appellant received her Notice of Termination from Reynaldo P. Martin,
OIC-Regional Operations Manager of the PCSO on October 17, 2005 with a copy of the PCSO Board Resolution
which contained the board decision to terminate her services. Respondent-appellant moved for reconsideration of
the said decision of the PCSO Board on October 20, 2005. The same was denied on January 6, 2006.3
Lapid appealed to the Civil Service Commission (CSC). The CSC, in its Resolution No. 070396 dated March 6,
2007, 4 dismissed respondent’s appeal. Thus:
Records clearly show that respondent-appellant was never formally charged for the administrative offense of
Discourtesy in the Course of Official Duties and Grave Misconduct, for which she was dismissed from service.
PCSO’s vain attempt to remedy their lapse with the submission of the copy of the unsigned Formal Charge with their
Comment must be censured. However, PCSO’s failure to observe due process is irrelevant in this present case and
the real issue for the Commission’s determination is the termination of Lapid’s casual employment.
Based on the status of Lapid’s employment [as] a casual employee, this Commission finds this present
appeal moot and academic and all proceedings conducted pursuant to the aforementioned incidents, bereft
of any legal effects.
The Revised Omnibus Rules on Appointments and Other Personnel Actions which is implemented in CSC
Memorandum Circular No., 40 (sic), s. 1998 provides a definition of a casual employment in Rule III, Section 2(f),
to wit:
‘f. Casual – issued only for essential and necessary services where there are not enough regular staff to meet the
demands of the service.’
Further, the fact that Lapid was employed by the PCSO as a casual employee, means that she does not enjoy
security of tenure. Lapid’s services are terminable anytime, there being no need to show cause. Lapid’s allegations
that there is no substantial evidence to sustain the finding of her guilt for Grave Misconduct and her dismissal
from the service is irrelevant in the present case as she is a casual employee, without any security of
tenure. Hence, she may be separated from service at any time (Erasmo vs. Home Insurance and Guaranty
Corporation, 38 SCRA 122).
This Commission, in RODRIGO, Filma A., CSC Resolution No. 011947 dated September 10, 2001, cited
in LECCIO, Nemia E., CSC Resolution No. 030858 dated August 8, 2003, ruled as follows:
‘The fact that she was in the employ of the municipal government as a casual employee, which she admitted in her
appeal, means that she enjoys no tenurial security granted by the Constitution. Her services are terminable anytime,
there being no need to show cause. Her invocation of alleged political motivation or color underlying her ouster
cannot afford her any relief for the same does not alter the fact that hers was a casual employment, devoid of
security of tenure.’
xxx xxx xxx
WHEREFORE, the present administrative case against Marie Jean C. Lapid is hereby declared MOOT AND
ACADEMIC. The appeal is hereby DISMISSED for lack of merit. [Emphases Supplied]
Respondent Lapid moved for a reconsideration. Her motion was, however, denied by the CSC in its Resolution No.
071401 dated July 24, 2007.5
Aggrieved, Lapid filed a petition for review (under Rule 43) before the CA presenting the sole issue of:
WHETHER OR NOT THE CIVIL SERVICE COMMISSION IS CORRECT IN RULING INSTEAD ON THE STATUS
OF THE APPELLANT’S CASUAL EMPLOYMENT AND NOT ON THE ISSUE OF NON-OBSERVANCE OF DUE
PROCESS IN THE TERMINATION OF APPELLANT’S SERVICES. 6
Lapid claimed that the CSC erred in denying her appeal on the ground that she was a casual employee who was
"without any security of tenure x x x and may be separated from service at any time." She argued that the CSC
should have decided her appeal on the merits and resolved the issue of whether or not her termination from service
was executed with due process. She further averred that "No officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided by law and after due process."7
The CA agreed with Lapid. The CA ruled that while it was previously held that casual employees were not protected
by security of tenure as they may be removed from the service with or without cause, a recent case decided by the
Court held otherwise. In the said case, entitled, Re: Vehicular Accident involving SC Shuttle Bus No. 3 with Plate No.
SEG-357 driven by Gerry B. Moral, Driver II-Casual,8 the Court ruled that since there was no evidence supporting the
charge against the respondent therein, it could not sustain his recommended dismissal on the mere ground that he
was a casual employee, "for ‘even a casual or temporary employee enjoys security of tenure and cannot be
dismissed except for cause enumerated in Sec. 22, Rule XIV of the Omnibus Civil Service Rules and Regulations
and other pertinent laws.’"9 Absent, therefore, a proven cause to dismiss, the CA held that Lapid was dismissed
without cause as contemplated in law.
Regarding the question of "due process," Lapid argued that she was denied her right thereto because the charges
against her were not duly proven. The supposed Formal Charge was unsigned and, worse, it was not served on her.
No formal investigation was ever conducted on her case.10
The CA again ruled for Lapid and held that she was denied due process. The dispositive portion of the CA Decision
reads:
WHEREFORE, premises considered, the instant petition is GRANTED. Petitioner is ordered REINSTATED and
RETAINED in the service until the expiration of her casual employment, unless she has been earlier dismissed for
cause in another case.
SO ORDERED.11
Not in conformity, petitioners now seek relief from this Court via this petition anchored on the sole ground that:
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING RESPONDENT’S PETITION, IN EFFECT,
REVERSING THE CIVIL SERVICE COMMISSION’S RESOLUTIONS.12
Preliminarily, there is a need to ascertain the meaning and essence of the term "casual employee." As stated in Rule
III, Section 2(f) of the Omnibus Rules on Appointments and Other Personnel Actions:
"f. Casual – issued only for essential and necessary services where there are not enough regular staff to meet the
demands of the service."
Notably, the Plantilla of Casual Appointment appears and reads as follows:
CSC Form No. 001
(Revised 1991)
Republic of the Philippines
____________________________
_____________________
PLANTILLA OF CASUAL APPOINTMENT
Source of Funds:_________________
Department/Division: _________ Date Prepared by HRMO: ___________
Name of Position Level SG Daily Period of If Renewal
Appointee/s Wage Employment (indicate
dates of
From To previous
employment)

The abovenamed personnel are hereby hired/appointed as casuals at the rate of compensation stated opposite
their/his name(s) for the period indicated. It is understood that such employment will cease automatically at the end
of the period stated unless renewed. Any or all of them may be laid-off any time before the expiration of the
employment period when their services are no longer needed or funds are no longer available or the project
has already been completed/finished or their performance are below par.
________________________________________________________________________

CERTIFICATION CSC ACTION:

This is to certify that all requirement and _______ Approved

supporting papers pursuant to CSC MC No. 40,
s. 1998, as amended, have been complied
with, reviewed and found in order. _______ Disapproved

_____________________
HRO
 APPOINTING AUTHORITY:

______________________ ______________________
Name/Position Head CSC Field Officer

______________________ ____________________
Date Date Signed
[Emphasis Supplied]

Thus, by the nature of their employment, casual employees were deemed to be not covered by the security of tenure
protection as they could be removed from the service at anytime, with or without cause. Then came the recent case
of Moral,13 which was the basis of the CA Decision where the Court resolved the issue of whether or not a shuttle
bus driver could be terminated from his casual employment without cause. Pertinent portions of the said en
bancResolution reads:
Article IX (B) of the Constitution
Sec. 2. x x x
(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.
xxx
(6) Temporary employees of the Government shall be given such protection as may be provided by law.
The Civil Service Law
Sec. 46. Discipline: General Provisions. – (a) No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law after due process.
Further, Civil Aeronautics Administration v. IAC held that "the mantle of protection against arbitrary dismissals is
accorded to an employee even if he is a non-eligible and holds a temporary appointment."
Hence, a government employee holding a casual or temporary employment cannot be terminated within the period of
his employment except for cause. [Emphases supplied]
The Court further stated in Moral that since there was no evidence supporting the charge of gross neglect of duty on
the part of respondent, the recommendation of the Office of Administrative Services (OAS) for his dismissal on the
ground that he was a mere casual employee could not be sustained. The Court wrote that:
"x x x. Even a casual or temporary employee enjoys security of tenure and cannot be dismissed except for
cause enumerated in Sec. 22, Rule XIV of the Omnibus Civil Service Rules and Regulations and other
pertinent laws." [Emphasis Supplied]
Despite this new ruling on casual employees, it is not the intention of the Court to make the status of a casual
employee at par with that of a regular employee, who enjoys permanence of employment.14 The rule is still that
casual employment will cease automatically at the end of the period unless renewed as stated in the Plantilla of
Casual Employment. Casual employees may also be terminated anytime though subject to certain conditions or
qualifications with reference to the abovequoted CSC Form No. 001. Thus, they may be laid-off anytime before the
expiration of the employment period provided any of the following occurs: (1) when their services are no longer
needed; (2) funds are no longer available; (3) the project has already been completed/finished; or (4) their
performance are below par.
Equally important, they are entitled to due process especially if they are to be removed for more serious causes or
for causes other than the reasons mentioned in CSC Form No. 001. This is pursuant to Section 2, Article IX(B) of the
Constitution and Section 46 of the Civil Service Law. The reason for this is that their termination from the service
could carry a penalty affecting their rights and future employment in the government.
In the case at bench, the action of petitioners clearly violated Lapid’s basic rights as a casual employee. As pointed
out by the CSC itself, Lapid was NEVER formally charged with the administrative offenses of Discourtesy in the
Course of Official Duties and Grave Misconduct. According to the CSC, the Formal Charge, was even unsigned, and
it categorically stated that PCSO failed to observe due process.15
Lapid moved for the reconsideration of Resolution No. 340.16 In Resolution No. 401, Series of 2005,17 the Board of
Directors of PCSO, upon the recommendation of the Assistant General Manager for Online Lottery Sector and the
Manager of the Northern and Central Luzon, denied said motion for reconsideration. It was only in the said resolution
that it was belatedly stated that her services was no longer needed per the list of Plantilla of Casual Appointment.
This was an empty statement, however, as this was not substantiated.
Section 3(2), Article XIII of the Constitution guarantees the rights of all workers not just in terms of self-organization,
collective bargaining, peaceful concerted activities, the right to strike with qualifications, humane conditions of work,
and a living wage but also to security of tenure. Likewise, Section 2(3), Article IX-B of the Constitution provides that
"no officer or employee of the civil service shall be removed or suspended except for cause provided by
law."18 Apparently, the Civil Service Law echoes this constitutional edict of security of tenure of the employees in the
civil service. Thus, Section 46 (a) of the Civil Service Law provides that "no officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law after due
process."19 [Emphases supplied]1avvphi1
As earlier stated, the CSC itself found that Lapid was denied due process as she was never formally charged with
the administrative offenses of Discourtesy in the Course of Official Duties and Grave Misconduct, for which she was
dismissed from the service. To somehow remedy the situation, the petitioners mentioned in their Memorandum
before the CA that there was no reason anymore to pursue the administrative charge against Lapid and to
investigate further as this was superseded by Memorandum dated September 14, 2005 recommending the
termination of respondent Lapid’s casual employment. They pointed out that this was precisely the reason why no
Formal Charge was issued.
The September 14, 2005 Memorandum, however, was not an action independent of the administrative case which
dispensed with the filing of a Formal Charge. The CA even quoted pertinent portions of the said Memorandum. Thus:
Subject: Termination of Services of Ms. Marie Jean C. Lapid
This is with reference to the two (2) complaints for multiple acts of Grave Misconduct and Discourtesy in the Course
of official Duty filed by Mr. Lolito O. Guemo, CLOO, Bataan PDO against Ms. Marie Jean C. Lapid, casual employee
of PDO Bataan.
1.) The 1st complaint was the subject of Memorandum dated August 11, 2005 of Legal Department
recommending the filing of Formal Charge against subject employee for Discourtesy in the Course of Duties
and Grave Misconduct committed on June 17, 2005. The Memo was forwarded to your office [on] August 18,
2005; and
2.) The 2nd complaint dated August 31, 2005 for Grave Misconduct and Discourtesy in the Course of official
duties was filed against the same employee by the CLOO of Bataan PDO for disciplinary action.
As an immediate disciplinary action for her wanton behavior in the performance of duties and obligations which
constitute violation of office and civil service rules, we respectfully recommend that her services as casual employee
be terminated.20
WHEREFORE, the petition is DENIED. Accordingly, respondent Marie Jean C. Lapid is hereby allowed to continue
rendering services as Casual Clerk (Teller) of the PCSO, Bataan Provincial District Office, Balanga City, Bataan, until
the end of the term of her temporary employment unless she is earlier dismissed for cause in another case and after
due process. She is also entitled to payment of backwages from the date of dismissal until the date of actual
reinstatement. However, if the term of her employment has already expired, backwages shall be computed from the
date of dismissal until the end of her period of employment under the terms of her contract as a casual employee.
SO ORDERED.
G.R. No. 182591 January 18, 2011
MODESTO AGYAO, JR., Petitioner,
vs.
CIVIL SERVICE COMMISSION, Respondent.
DECISION
MENDOZA, J.:
Assailed in this petition for review on certiorari is the September 26, 2007 Decision1 of the Court of Appeals (CA), in
CA-G.R. SP No. 92569, which affirmed Resolution No. 05-0821 dated June 16, 2005, issued by the Civil Service
Commission (CSC). The CSC Resolution, in turn, affirmed the invalidation by the Civil Service Commission Field
Office-Bangko Sentral Ng Pilipinas (CSCFO-BSP) of the appointment of petitioner Modesto Agyao, Jr. (Agyao) as
Department Manager II of the Philippine Economic Zone Authority (PEZA).
Records show that on June 16, 2004, Agyao was re-appointed as Department Manager II of PEZA. As a matter of
course, the renewal of Agyao’s appointment was submitted by PEZA to the CSC.
On July 16, 2004, however, Agyao’s re-appointment was invalidated by the CSCFO-BSP, through a letter of Director
Mercedes P. Tabao (Director Tabao). The letter stated that Agyao lacked the prescribed Career Executive Service
Office (CESO)/ Career Service Executive Examination (CSEE) eligibility, and there were qualified eligibles actually
available for appointment. Section 2 (b), Rule III of CSC Memorandum Circular No. 40, Series of 1998, provides as
follows:
b. Temporary – issued to a person who meets the education, experience and training requirements for the position to
which he is being appointed except for the appropriate eligibility but only in the absence of a qualified eligible actually
available, as certified to by the Civil Service Regional Director or Field Officer. xxx
On August 31, 2004, PEZA Director-General Lilia B. De Lima (Director-General De Lima) sent a letter-appeal to the
CSC seeking a reconsideration of its action on the appointment of Agyao.
On June 16, 2005, the CSC issued Resolution No. 05-08212 denying Director-General De Lima’s appeal and
affirming the invalidation by the CSCFO–BSP of Agyao’s appointment as Department Manager II of PEZA. The CSC
referred to CSC Memorandum Circular (MC) No. 9, Series of 2005 (Limitations on Renewal of Temporary
Appointments), which clearly provides that only one renewal of a temporary third-level appointment is allowed
provided that there are no qualified applicants actually available and willing to assume the position. Moreover,
although Agyao’s temporary appointment was renewed four (4) times, he failed to acquire the appropriate third level
eligibility. In addition, CSCFO-BSP Director Tabao certified that there were qualified eligibles available for
appointment to the position of Department Manager II.
On July 18, 2005, Agyao was informed by PEZA Deputy Director for Finance and Administration, Justo Porfirio LL.
Yusingco, about his appointment as Division Chief III, Permanent, effective July 16, 2005.
On August 21, 2005, Agyao filed with the CSC a Letter-Motion for Reconsideration of its July 16, 2005 Resolution.
The motion, however, was denied in the cited CSC Resolution No. 05-1486 dated October 17, 2005.
On appeal, the CA rendered a decision dated September 26, 2007 affirming the resolution of the CSC. It ruled,
among others, that Agyao could not qualify for the position of Department Manager II because he was not a Career
Civil Service Eligible (CESE). He could not invoke the provisions of CSC MC No. 9, Series of 2005, issued on March
22, 2005 because the invalidation of his temporary appointment was made earlier on July 16, 2004. Moreover, CSC
Office Memorandum No. 05, Series of 2005, issued on August 5, 2005 as a clarification on CSC MC No. 9, Series of
2005, expressly provides that "all renewals issued on or after July 24, 2005 can no longer be renewed after they
lapse."
Aggrieved, Agyao filed this petition for review before this Court raising the following
ISSUES
WHETHER OR NOT THE COURT OF APPEALS ERRED AND ABUSED ITS DISCRETION IN UPHOLDING THE
FINDINGS OF THE CIVIL SERVICE COMMISSION DECLARING THE APPOINTMENT OF THE PETITIONER AS
DEPARTMENT MANAGER II OF THE PEZA AS INVALID.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE POSITION OF THE
PETITIONER AS DEPARTMENT MANAGER II IS NOT COVERED UNDER THE CAREER EXECUTIVE SERVICE
CONSIDERING THE FACT THAT HE IS NOT A PRESIDENTIAL APPOINTEE.
Agyao argues that CSC MC No. 9, Series of 2005, is applicable to him because its provisions are favorable to him.
He claims that CSC Office Memorandum No. 05, Series of 2005, which clarified CSC MC No. 9, Series of 2005,
allows one renewal of temporary third level appointments issued before July 24, 2005 subject to existing rules and
regulations regardless of previous renewals granted before said date. Accordingly, he insists that the renewal of his
appointment was valid because it was made on June 16, 2004.
Agyao further points out that there are no qualified applicants actually available and willing to assume his position as
Director Manager II at the PEZA. Director Tabao’s "qualified eligibles" in her list are from different agencies of the
government and that none of them has applied for the position. It is the reason why the position is still vacant.
Finally, Agyao contends that the position of Department Manager II of PEZA is not among those covered by the
Career Executive Service (CES) also known as presidential appointees. The appointment to the position is made by
the PEZA Director-General. Accordingly, he does not need to possess the required CESO/CSEE to continue acting
as Department Manager II.
The CSC, on the other hand, argues that Agyao’s temporary appointment on June 16, 2004 was properly invalidated
because he lacked the eligibility to qualify as Department Manager II. Although he was re-appointed several times to
the position, he still failed to acquire third level eligibility considering that he failed in the November 2004 CSEE.
Moreover, CSC MC No. 9, Series of 2005, and CSC Office Memorandum No. 05, Series of 2005, cannot apply in
Agyao’s favor because they were issued after the invalidation of his fifth temporary appointment and did not provide
for a retroactive application.
The CSC also regards Agyao’s contention that there are no qualified applicants who are actually willing to assume
the position of Department Manager II as speculative and hearsay. Actually, Director Tabao certified and furnished
PEZA a list of qualified eligibles for possible appointment as Department Manager II.
Finally, the CSC argues that although the position of Department Manager II does not require a presidential
appointment, it is a third level position which requires either a CESO or CSEE eligibility. The list of third level
positions in the Career Executive Service enumerated in the Administrative Code of 1987, namely: Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive
Service Board, is not strictly limited. Citing jurisprudence,3 the CSC avers that the classification of a particular
position in the bureaucracy is determined by the nature of the functions of the office. The third level embraces
positions of a managerial character involving the exercise of management functions such as planning, organizing,
directing, coordinating, controlling, and overseeing the activities of an organization or of a unit thereof. It also
requires some degree of professional, technical or scientific knowledge and experience, and application of
managerial or supervisory skills necessary to carry out duties and responsibilities involving functional guidance,
leadership and supervision.
The rank of Department Manager II falls under the coverage of CES under the aforementioned CSC issuances as
the same is a third level career position above the division chief level and performing executive or managerial
functions. Pursuant to the merit-and-fitness rule in the Constitution, the consistent policy is to the effect that non-
presidential appointees to positions with managerial and executive functions must possess third level eligibility.
In sum, the core issue to be resolved in this case is whether or not the position of Department Manager II of PEZA
requires CESO or CSEE eligibility.
RULING OF THE COURT
The issue is not novel. In Office of the Ombudsman v. Civil Service Commission cases,4 Home Insurance Guarantee
Corporation v. Civil Service Commission5 and National Transmission Corporation v. Hamoy,6 the Court has
consistently ruled that the CES covers presidential appointees only. Corollarily, as the position of Department
Manager II of the PEZA does not require appointment by the President of the Philippines, it does not fall under the
CES.
Section 8, Chapter 2, Book V, Title 1 (Subtitle A) of Executive Order No. 292, otherwise known as The Revised
Administrative Code of 1987, classifies the positions in the Civil Service as follows:
Section 8. Classes of positions in the Career Service.—( 1) Classes of positions in the career service appointment to
which requires examinations shall be grouped into three major levels as follows:
(a) The first level shall include clerical, trades, crafts and custodial service positions which involve non-
professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four
years of collegiate studies;
(b) The second level shall include professional, technical, and scientific positions which involve professional,
technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college
work up to Division Chief levels; and
(c) The third level shall cover positions in the Career Executive Service.
In the Home Insurance case, the Court ruled that "the position of Vice-President of HIGC does not belong to the 3rd
level of the career service. Respondent Cruz has not satisfactorily shown that his former position as Vice-President
in the HIGC belongs to the third level in the career service as prescribed by law. His former position as Vice
President is not among those enumerated by law as falling under the third level, nor has he established that it is one
of those identified by the Career Executive Service Board as of equivalent rank to those listed by law. Neither is it
claimed that he was appointed by the President."
In the Office of the Ombudsman case, the Court wrote:
The CSC’s opinion that the Director II positions in the Central Administrative Service and the Finance and
Management Service of the Office of the Ombudsman are covered by the CES is wrong. Book V, Title I, Subtitle A,
Chapter 2, Section 7 of EO7[7] 292, otherwise known as "The Administrative Code of 1987," provides:
SECTION 7. Career Service. – The Career Service shall be characterized by (1) entrance based on merit and fitness
to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2)
opportunity for advancement to higher career positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and
academic staff of state colleges and universities, and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and
 other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are
appointed by the President;
xxx xxx x x x (emphasis supplied)
Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC [G.R.
No. 159940, 16 February 2005, 451 SCRA 570]:
From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are
presidential appointees. x x x (emphasis supplied)
Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the
Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the position of Director II in the Central
Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the
Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES
eligibility.
To classify the positions of Director II in the Central Administrative Service and the Finance and Management
Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or
CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will
result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2)
including in the CES a position not held by a presidential appointee, contrary to the Administrative Code.
The same ruling was cited in the National Transmission Corporation case, where it was further written:
"Positions in the CES under the Administrative Code include those of Undersecretary, Assistant Secretary, Bureau
Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent
rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President. Simply
put, third-level positions in the Civil Service are only those belonging to the Career Executive Service, or
those appointed by the President of the Philippines. This was the same ruling handed down by the Court in
Office of the Ombudsman v. Civil Service Commission, wherein the Court declared that the CES covers presidential
appointees only.
xxx xxx xxx
Respondent was appointed Vice-President of VisMin Operations & Maintenance by Transco President and CEO
Alan Ortiz, and not by the President of the Republic. On this basis alone, respondent cannot be considered as part of
the CES.
Caringal and Erasmo cited by petitioner are not in point. There, the Court ruled that appointees to CES positions who
do not possess the required CES eligibility do not enjoy security of tenure. More importantly, far from holding that
presidential appointment is not required of a position to be included in the CES, we learn from Caringal that the
appointment by the President completes the attainment of the CES rank, thus:
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an
incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the
President upon the recommendation of the Board. This process completes the official’s membership in the CES and
most importantly, confers on him security of tenure in the CES.
To classify other positions not included in the above enumeration as covered by the CES and require appointees
thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the appointing power for non- CES positions in the President, in
violation of the Constitution; or (2) including in the CES a position not held by presidential appointee, contrary to the
Administrative Code.
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D. Buenaflor issued Office Memorandum No. 27, s. 2008,
which states in part:
For years, the Commission has promulgated several policies and issuances identifying positions in the Career
Service above Division Chief Level performing executive and managerial functions as belonging to the Third Level
covered by the Career Executive Service (CES) and those outside the CES, thus, requiring third level eligibility for
purposes of permanent appointment and security of tenure.
However, the issue as to whether a particular position belongs to the Third Level has been settled by jurisprudence
enshrined in Home Insurance and Guaranty Corporation v. Civil Service Commission, G.R. No. 95450 dated March
19, 1993 and Office of the Ombudsman (OMB) v. Civil Service Commission; G.R. No. 162215 dated July 30, 2007,
where the Honorable Supreme Court ruled citing the provision of Section 7(3) Chapter 2, Title I-A, Book V of
Administrative Code of 1987, that the Third Level shall cover positions in the Career Executive Service (CES).
Positions in the Career Executive Service consists of Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive Service Board (CESB), all of whom are
appointed by the President. To classify other positions not included in the above enumeration as covered by the CES
and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to
unconstitutional and unlawful consequences. It will result either: in (1) vesting the appointing power for non-CES
positions in the President, in violation of the Constitution; or, (2) including in the CES a position not held by
presidential appointee, contrary to the Administrative Code.
xxx
While the above-cited ruling of the Supreme Court refer to particular positions in the OMB and HIGC, it is clear,
however, that the intention was to make the doctrine enunciated therein applicable to similar and comparable
positions in the bureaucracy. To reiterate, the Third Level covers only the positions in the CES as enumerated in the
Administrative Code of 1987 and those identified by the CESB as of equivalent rank, all of whom are appointed by
the President of the Philippines. Consequently, the doctrine enshrined in these Supreme Court decisions has ipso
facto nullified all resolutions, qualification standards, pronouncements and/or issuances of the Commission insofar as
the requirement of third level eligibility to non-CES positions is concerned.
In view thereof, OM No. 6, series of 2008 and all other issuances of the Commission inconsistent with the afore-
stated law and jurisprudence are likewise deemed repealed, superseded and abandoned. x x x (Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of Memorandum Circular (MC) No. 21, it being inconsistent with
the afore-quoted Office Memorandum and thus deemed repealed by no less than the CSC itself.
All three cases were also cited in the recent case of Civil Service Commission v. Court of Appeals and Philippine
Charity Sweepstakes Office,8 where a similar ruling was handed down.
Doubtless, the position of Director Manager II at the PEZA is not among the enumerated positions in the Career
Executive Service, much less, a position that requires presidential appointment. Even the CSC admits that the
position of Director Manager II does not require presidential appointment.
For said reason, Agyao only needs the approval of the PEZA Director-General to validate his appointment or re-
appointment. As he need not possess a CESO or CSEE eligibility, the CSC has no valid and legal basis in
invalidating his appointment or re-appointment as Department Manager II.
WHEREFORE, the September 26, 2007 Decision of the Court of Appeals is hereby REVERSED and SET ASIDEand
another one entered holding that the appointment of Modesto Agyao, Jr. as Department Manager II of PEZA was
valid.
SO ORDERED.
G.R. No. 190147 March 5, 2013
CIVIL SERVICE COMMISSION, Petitioner,
vs.
PILILLA WATER DISTRICT, Respondent.
DECISION
VILLARAMA, JR, J.:
Assailed in this petition for review on certiorari under Rule 45 are the Decision1 dated July 28, 2009 and
Resolution2dated November 9, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 106031 which annulled and set
aside Resolution Nos. 0809423 and 0818464 of the Civil Service Commission (CSC).
The factual background of this case is as follows:
Paulino J. Rafanan was first appointed General Manager on a coterminous status under Resolution No. 12 issued on
August 7, 1998 by the Board of Directors (BOD) of respondent Pililla Water District (PWD). His appointment was
signed by the BOD Acting Chairman and attested by the CSC Field Office-Rizal.5
On October 4, 2001, petitioner issued Resolution No. 0116246 amending and clarifying Section 12, Rule XIII of CSC
Memorandum Circular No. 15, s. 1999, as follows:
Section 12. a) No person who has reached the compulsory retirement age of 65 years can be appointed to any
position in the government, subject only to the exception provided under sub-section (b) hereof.
However, in meritorious cases, the Commission may allow the extension of service of a person who has reached the
compulsory retirement age of 65 years, for a period of six (6) months only unless otherwise stated. Provided, that,
such extension may be for a maximum period of one (1) year for one who will complete the fifteen (15) years of
service required under the GSIS Law.
A request for extension shall be made by the head of office and shall be filed with the Commission not later than
three (3) months prior to the date of the official/employee’s compulsory retirement.
Henceforth, the only basis for Heads of Offices to allow an employee to continue rendering service after his/her 65th
birthday is a Resolution of the Commission granting the request for extension. Absent such Resolution, the salaries
of the said employee shall be for the personal account of the responsible official.
xxxx
b) A person who has already reached the compulsory retirement age of 65 can still be appointed to a
coterminous/primarily confidential position in the government.
A person appointed to a coterminous/primarily confidential position who reaches the age of 65 years is considered
automatically extended in the service until the expiry date of his/her appointment or until his/her services are earlier
terminated. (Emphasis supplied)
On April 2, 2004, Republic Act (R.A.) No. 92867 was approved and signed into law, Section 2 of which provides:
SEC. 2. Section 23 of Presidential Decree No. 198, as amended is hereby amended to read as follows:
"SEC. 23. The General Manager.–At the first meeting of the Board, or as soon thereafter as practicable, the Board
shall appoint, by a majority vote, a general manager and shall define [his] duties and fix his compensation. Said
officer shall not be removed from office, except for cause and after due process." (Emphasis supplied)
On June 16, 2004, the BOD approved Resolution No. 19,8 Series of 2004, which reads:
EXTENSION OF SERVICES OF MR. PAULINO J. RAFANAN AS GENERAL MANAGER OF PILILLA WATER
DISTRICT
WHEREAS, the General Manager, Mr. Paulino J. Rafanan, is reaching his age 65 this month of this year the Board,
because of his good and honest performance in faithfully carrying out the policies of the Board resulting in the
success of the District’s expansion program, unanimously agreed to retain his services as General Manager at least
up to December 31, 2008 co-terminus with the term of the Director last appointed after which period he may stay at
the pleasure of the other Board.
THEREFORE, THE BOARD RESOLVED, AS IT HEREBY RESOLVED that the services of Mr. Paulino J. Rafanan
as General Manager of Pililla Water District is extended up to December 31, 2008 as a reward for his honest and
efficient services to the District.
In its Resolution No. 04-1271 dated November 23, 2004, petitioner denied the request of BOD Chairman Valentin E.
Paz for the extension of service of Rafanan and considered the latter "separated from the service at the close of
office hours on June 25, 2004, his 65th birthday." Petitioner also denied the motion for reconsideration filed by
Chairman Paz under its Resolution No. 05-0118 dated February 1, 2005.9
On April 8, 2005, the BOD issued Resolution No. 09, Series of 2005 reappointing Rafanan as General Manager on
coterminous status. Said reappointment was signed by Chairman Paz and attested by the CSC Field Office-Rizal.10A
year later, the BOD approved Resolution No. 20 declaring the appointment of General Manager Rafanan as
permanent11 but this resolution was not implemented.
In a letter dated November 19, 2007, Pililla Mayor Leandro V. Masikip, Sr. questioned Rafanan’s coterminous
appointment as defective and void ab initio considering that he was appointed to a career position despite having
reached the compulsory retirement age. Said letter-complaint was treated as an appeal from the appointment made
by the BOD Chairman of respondent.
On May 19, 2008, petitioner issued Resolution No. 080942 invalidating the coterminous appointment issued to
Rafanan as General Manager on April 8, 2005 on the ground that it was made in violation of Section 2 of R.A. No.
9286. Petitioner further observed that the appointment was issued to circumvent the denial of the several requests
for extension of service of Rafanan. Rafanan filed a motion for reconsideration which was denied by petitioner under
its Resolution No. 081846 dated September 26, 2008.
Respondent filed in the CA a petition for review with application for temporary restraining order and/or writ of
preliminary injunction under Rule 43 of the 1997 Rules of Civil Procedure, as amended. Insisting that Rafanan’s
coterminous appointment was based on CSC Resolution No. 011624, respondent contended that petitioner cannot
usurp the power of appointment and removal of the appointing authority, and that petitioner failed to observe due
process.
In the assailed Decision, the CA reversed the CSC and ruled that the position of General Manager in water districts
remains primarily confidential in nature and hence respondent’s BOD may validly appoint Rafanan to the said
position even beyond the compulsory retirement age.
Petitioner filed a motion for reconsideration which the CA denied.
Hence, this petition submitting the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE POSITION OF GENERAL
MANAGER OF A LOCAL WATER DISTRICT IS PRIMARILY CONFIDENTIAL IN NATURE.
 II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE APRIL 8, 2005
APPOINTMENT OF RAFANAN IN A CO-TERMINOUS CAPACITY WAS VALID.12
Under Section 13, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other
Pertinent Civil Service Laws and CSC Resolution No. 91-1631 issued on December 27, 1991, appointments in the
civil service may either be of permanent or temporary status. A permanent appointment is issued to a person who
meets all the requirements for the position to which he is being appointed/promoted, including the appropriate
eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof,
while a temporary appointment may be extended to a person who possesses all the requirements for the position
except the appropriate civil service eligibility and for a limited period not exceeding twelve months or until a qualified
civil service eligible becomes available.
Section 14 of the same resolution provides for a coterminous appointment:
Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity
in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure,
or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds.
The co-terminous status may be further classified into the following:
(1) co-terminous with the project - when the appointment is co-existent with the duration of a particular project
for which purpose employment was made or subject to the availability of funds for the same;
(2) co-terminous with the appointing authority - when appointment is co-existent with the tenure of the
appointing authority or at his pleasure;
(3) co-terminous with the incumbent - when the appointment is co-existent with the appointee, in that after the
resignation, separation or termination of the services of the incumbent the position shall be deemed
automatically abolished; and
(4) co-terminous with a specific period - appointment is for a specific period and upon expiration thereof, the
position is deemed abolished.
For the purpose of coverage or membership with the GSIS, or their right to security of tenure, co-terminous
appointees, except those who are co-terminous with the appointing authority, shall be considered permanent.
(Emphasis supplied)
Section 23 of Presidential Decree (P.D.) No. 198, otherwise known as "The Provincial Water Utilities Act of 1973"
reads:
SEC. 23. Additional Officers.–At the first meeting of the board, or as soon thereafter as practicable, the board shall
appoint, by a majority vote, a general manager, an auditor, and an attorney, and shall define their duties and fix their
compensation. Said officers shall serve at the pleasure of the board. (Emphasis supplied)
The provision was subsequently amended by P.D. No. 76813:
SEC. 23. The General Manager.–At the first meeting of the board, or as soon thereafter as practicable, the board
shall appoint, by a majority vote, a general manager and shall define his duties and fix his compensation. Said officer
shall serve at the pleasure of the board. (Emphasis supplied)
In the case of Paloma v. Mora,14 we held that the nature of appointment of General Managers of Water Districts
under Section 23 of P.D. No. 198 falls under Section 14 of the Omnibus Rules Implementing Book V of Executive
Order No. 292, otherwise known as the "Administrative Code of 1987", that is, the General Manager serves at the
pleasure of the BOD.
As mentioned, Section 23 of P.D. No. 198 was already amended by R.A. No. 9286 which now provides that the
General Manager of a water district shall not be removed from office except for cause and after due process. Said
law, however, cannot be retroactively applied as to preclude the BOD from terminating its General Manager at the
time the governing law was still P.D. No. 198, thus:
Unfortunately for petitioner, Rep. Act No. 9286 is silent as to the retroactivity of the law to pending cases and must,
therefore, be taken to be of prospective application. The general rule is that in an amendatory act, every case of
doubt must be resolved against its retroactive effect. Since the retroactive application of a law usually divests rights
that have already become vested, the rule in statutory construction is that all statutes are to be construed as having
only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is
expressly declared or is necessarily implied from the language used.
First, there is nothing in Rep. Act No. 9286 which provides that it should retroact to the date of effectivity of P.D. No.
198, the original law. Next, neither is it necessarily implied from Rep. Act No. 9286 that it or any of its provisions
should apply retroactively. Third, Rep. Act No. 9286 is a substantive amendment of P.D. No. 198 inasmuch as it has
changed the grounds for termination of the General Manager of Water Districts who, under the then Section 23 of
P.D. No. 198, "shall serve at the pleasure of the Board." Under the new law, however, said General Manager shall
not be removed from office, except for cause and after due process. To apply Rep. Act No. 9286 retroactively to
pending cases, such as the case at bar, will rob the respondents as members of the Board of the Palompon, Leyte
Water District of the right vested to them by P.D. No. 198 to terminate petitioner at their pleasure or discretion. Stated
otherwise, the new law can not be applied to make respondents accountable for actions which were valid under the
law prevailing at the time the questioned act was committed.
Prescinding from the foregoing premises, at the time petitioner was terminated by the Board of Directors, the
prevailing law was Section 23 of P.D. No. 198 prior to its amendment by Rep. Act No. 9286.15 (Italics in the original;
emphasis supplied)
In this case, respondent’s BOD reappointed Rafanan as General Manager on April 8, 2005 when R.A. No. 9286 was
already in force and the BOD no longer had the authority to terminate the General Manager at its pleasure or
discretion.
Petitioner assails the CA in upholding the April 8, 2005 reappointment of Rafanan as General Manager on
coterminous status, arguing that the change of phraseology of Section 23 under R.A. No. 9286 ipso facto reclassified
said position from non-career to career position. Petitioner points out that it issued CSC Memorandum Circular No.
13, Series of 2006 entitled "Considering the Position of General Manager Under the Career Service and Prescribing
the Guidelines and Qualification Standards for the said Position Pursuant to R.A. No. 9286,"16 which applies to
respondent under local water district Medium Category:
D (SG-24) - Medium
Education : Master’s degree
Experience : 4 years in position/s involving management and supervision
Training : 24 hours of training in management and supervision
Eligibility : Career Service (Professional)/Second Level Eligibility17
Respondent contends that the amendment introduced by R.A. No. 9286 is not in conflict with the coterminous
appointment of Rafanan since the latter can be removed for "loss of confidence," which is "cause" for removal. As to
the above-cited CSC Memorandum Circular No. 13, Series of 2006, the same should be applied only to
appointments made after its issuance, and not to Rafanan who was already the incumbent General Manager before
August 17, 2006. Respondent maintains that since the General Manager of a water district holds a primarily
confidential position, Rafanan can be appointed to or remain in said position even beyond the compulsory retirement
age of 65 years.
The threshold issue is whether under Section 23 of P.D. No. 198 as amended by R.A. No. 9286, the position of
General Manager of a water district remains as primarily confidential.
In the 1950 case of De los Santos v. Mallare18 a position that is primarily confidential in nature is defined as follows:
x x x. These positions [policy-determining, primarily confidential and highly technical positions], involve the highest
degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate,
or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming
under this category be terminable at the will of the officer that makes them.
xxxx
Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a
position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee
for the duties of the office but primarily close intimacy which insures freedom of [discussion, delegation and reporting]
without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. x x
x.19 (Emphasis supplied)
From the above case the "proximity rule" was derived. A position is considered to be primarily confidential when
there is a primarily close intimacy between the appointing authority and the appointee, which ensures the highest
degree of trust and unfettered communication and discussion on the most confidential of matters.20 Moreover, in
classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in
character. A position is not necessarily confidential though the one in office may sometimes hold confidential matters
or documents.21
The case of Piñero v. Hechanova22 laid down the doctrine that it is the nature of the position that finally determines
whether a position is primarily confidential, policy determining or highly technical and that executive pronouncements
can be no more than initial determinations that are not conclusive in case of conflict. As reiterated in subsequent
cases, such initial determination through executive declaration or legislative fiat does not foreclose judicial review.23
More recently, in Civil Service Commission v. Javier,24 we categorically declared that even petitioner’s classification
of confidential positions in the government is not binding on this Court:
At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily
confidential positions in the civil service. Neither is there a law that gives an enumeration of positions classified as
primarily confidential.
What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which
describe or give examples of confidential positions in government.
Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already
made by an agency or branch of government?
Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by
the legislative or executive branches, or even by a constitutional body like the petitioner. The Court is expected to
make its own determination as to the nature of a particular position, such as whether it is a primarily confidential
position or not, without being bound by prior classifications made by other bodies. The findings of the other branches
of government are merely considered initial and not conclusive to the Court. Moreover, it is well-established that in
case the findings of various agencies of government, such as the petitioner and the CA in the instant case, are in
conflict, the Court must exercise its constitutional role as final arbiter of all justiciable controversies and disputes.
(Emphasis supplied)
Applying the proximity rule and considering the nature of the duties of the office of the Corporate Secretary of the
Government Service Insurance System (GSIS), we held in the above-cited case that said position in the GSIS or any
government-owned or controlled corporation (GOCC) for that matter, is a primarily confidential position.25
In holding that the position of General Manager of a water district is primarily confidential in nature, the CA said:
x x x we rule that the position of general manager remains primarily confidential in nature despite the amendment of
Section 23 of P.D. No. 198 by R.A. No. 9286, which gave the occupant of said position security of tenure, in that said
officer could only be removed from office for cause and after due process. The nature of the duties and functions
attached to the position points to its confidential character. First, the general manager is directly appointed by the
board of directors. Second, the general manager directly reports to the board of directors. Third, the duties and
responsibilities of a general manager are determined by the board of directors, which is a clear indication of a closely
intimate relationship that exists between him and the board. Fourth, the duties and responsibilities of a general
manager are not merely clerical and routinary in nature. His work involves policy and decision making. Fifth, the
compensation of the general manager is fixed by the board of directors. And last, the general manager is directly
accountable for his actions and omissions to the board of directors. Under this situation, the general manager is
expected to possess the highest degree of honesty, integrity and loyalty, which is crucial to maintaining trust and
confidence between him and the board of directors. The loss of such trust or confidence could easily result in the
termination of the general manager’s services by the board of directors. To be sure, regardless of the security of
tenure a general manager may now enjoy, his term may still be ended by the board of directors based on the ground
of "loss of confidence."26 (Emphasis in the original)
We sustain the ruling of the CA.
We stress that a primarily confidential position is characterized by the close proximity of the positions of the appointer
and appointee as well as the high degree of trust and confidence inherent in their relationship.27 The tenure of a
confidential employee is coterminous with that of the appointing authority, or is at the latter’s pleasure. However, the
confidential employee may be appointed or remain in the position even beyond the compulsory retirement age of 65
years.28
Among those positions judicially determined as primarily confidential positions are the following: Chief Legal Counsel
of the Philippine National Bank; Confidential Agent of the Office of the Auditor, GSIS; Secretary of the Sangguniang
Bayan; Secretary to the City Mayor; Senior Security and Security Guard in the Office of the Vice Mayor; Secretary to
the Board of a government corporation; City Legal Counsel, City Legal Officer or City Attorney; Provincial Attorney;
Private Secretary; and Board Secretary II of the Philippine State College of Aeronautics.29 The Court in these
instances focused on the nature of the functions of the office characterized by such "close intimacy" between the
appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state.30
In the case of the General Manager of a water district, Section 24 in relation to Section 23 of P.D. No. 198, as
amended, reveals the close proximity of the positions of the General Manager and BOD.
SEC. 24. Duties.–The duties of the General Manager and other officers shall be determined and specified from time
to time by the Board. The General Manager, who shall not be a director, shall have full supervision and control of the
maintenance and operation of water district facilities, with power and authority to appoint all personnel of the district:
Provided, That the appointment of personnel in the supervisory level shall be subject to approval by the Board. (As
amended by Sec.10, PD 768) (Emphasis supplied)
While the BOD appoints by a majority vote the General Manager and specifies from time to time the duties he shall
perform, it is the General Manager who exercises full supervision and control of the maintenance and operation of
water district facilities. The BOD is confined to policy-making and prescribing a system of business administration
and accounting for the water district patterned upon and in conformity to the standards established by the Local
Water Utilities Administration (LWUA), and it is the General Manager who implements the plans and policies
approved by the BOD. And while the BOD may not engage in the detailed management of the water district, it is
empowered to delegate to such officers or agents designated by it any executive, administrative or ministerial
power,31 including entering into contracts under conditions and restrictions it may impose. Moreover, though the
General Manager is vested with the power to appoint all personnel of the water district, the appointment of personnel
in the supervisory level shall be subject to the approval of the BOD. It is likewise evident that the General Manager is
directly accountable to the BOD which has disciplinary jurisdiction over him. The foregoing working relationship of the
General Manager and BOD under the governing law of water districts clearly demands a high degree of trust and
confidence between them. The CA therefore correctly concluded that the position of General Manager is primarily
confidential in nature.
Petitioner contends that the amendment introduced by R.A. No. 9286 in effect placed the position of General
Manager of a water district in the category of career service. It posits that this can be inferred from the removal of the
sentence "Said officer shall serve at the pleasure of the Board," and replaced it with the sentence "Said officer shall
not be removed from office, except for cause and after due process." Accordingly, petitioner said it issued CSC MC
No. 13, Series of 2006 prescribing guidelines for the implementation of the new law and qualification standards for
the position of General Manager of a water district, whereby all incumbent general managers who hold appointments
under coterminous status upon the effectivity of R.A. No. 9286 were given two years to meet all the requirements for
permanent status.
Such interpretation is incorrect.
To our mind, the amendment introduced by R.A. No. 9286 merely tempered the broad discretion of the BOD. In
Paloma v. Mora32 we noted the change brought about by the said law insofar as the grounds for terminating the
General Manager of a water district. Whereas previously the General Manager may be removed at the pleasure or
discretion of the BOD even without prior notice and due hearing, the amendatory law expressly demands that these
be complied with. Such condition for the exercise of the power of removal implements the fundamental right of due
process guaranteed by the Constitution. In De los Santos v. Mallare,33 the Court simply recognized as a necessity
that confidential appointments be "terminable at the will" of the appointing authority.
It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause
provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not
available to those employees whose appointments are contractual and coterminous in nature.34 Since the position of
General Manager of a water district remains a primarily confidential position whose term still expires upon loss of
trust and confidence by the BOD provided that prior notice and due hearing are observed, it cannot therefore be said
that the phrase "shall not be removed except for cause and after due process" converted such position into a
permanent appointment. Significantly, loss of confidence may be predicated on other causes for removal provided in
the civil service rules and other existing laws.
In Tanjay Water District v. Quinit, Jr.,35 we said:
Indeed, no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law.
The phrase "cause provided by law," however, includes "loss of confidence." It is an established rule that the tenure
of those holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only
as long as confidence in them endures. Their termination can be justified on the ground of loss of confidence, in
which case, their cessation from office involves no removal but the expiration of their term of office.
The Civil Service Law classifies the positions in the civil service into career and non-career service positions. Career
positions are characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure.36
The Career Service shall include37:
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and
academic staff of state colleges and universities, and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;
 (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and
other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are
appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed by the President,
such as the Foreign Service Officers in the Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit
system;
(6) Personnel of government-owned or controlled corporations whether performing governmental or
proprietary functions, who do not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled or unskilled. (Emphasis supplied)
On the other hand, non-career positions are defined by the Administrative Code of 198738 as follows:
SEC. 9. Non-Career Service. – The Non-Career Service shall be characterized by (1) entrance on bases other than
those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period
specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and
their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or
confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special
contract to undertake a specific work or job, requiring special or technical skills not available in the employing
agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis supplied)
As can be gleaned, a coterminous employment falls under the non-career service classification of positions in the
Civil Service,39 its tenure being limited or specified by law, or coterminous with that of the appointing authority, or at
the latter’s pleasure. Under R.A. No. 9286 in relation to
Section 14 of the Omnibus Rules Implementing Book V of the Administrative Code of 1987,40 the coterminous
appointment of the General Manager of a water district is based on the majority vote of the BOD and whose
continuity in the service is based on the latter’s trust and confidence or co-existent with its tenure.
The term of office of the BOD members of water districts is fixed by P.D. No. 198 as follows:
SEC. 11. Term of Office. -- Of the five initial directors of each newly-formed district, two shall be appointed for a
maximum term of two years, two for a maximum term of four years, and one for a maximum term of six years. Terms
of office of all directors in a given district shall be such that the term of at least one director, but not more than two,
shall expire on December 31 of each even-numbered year. Regular terms of office after the initial terms shall be for
six years commencing on January 1 of odd-numbered years. Directors may be removed for cause only, subject to
review and approval of the Administration. (As amended by Sec. 5, P.D. No. 768.) (Emphasis supplied)
On the basis of the foregoing, the logical conclusion is that the General Manager of a water district who is appointed
on coterminous status may serve or hold office for a maximum of six years, which is the tenure of the appointing
authority, subject to reappointment for another six years unless sooner removed by the BOD for loss of trust and
confidence, or for any cause provided by law and with due process.1âwphi1
It may also be mentioned that under Section 3641 of P.D. No. 198, as amended, the L WUA is empowered to take
over the operation and management of a water district which has defaulted on its loan obligations to L WUA. As the
bondholder or creditor, and in fulfillment of its mandate to regulate water utilities in the country, LWUA may designate
its employees or any person or organization to assume all powers or policy-decision and the powers of management
and administration to undertake all such actions as may be necessary for the water district's efficient operation. This
further reinforces the conclusion that the position of General Manager of a water district is a non-career position.
In fine, since the position of General Manager of a water district remains a primarily confidential position, Rafanan
was validly reappointed to said position by respondent's BOD on April 8, 2005 under coterminous status despite
having reached the compulsory retirement age, which is allowed under Section 12 (b), Rule XIII of CSC
Memorandum Circular No. 15, s. 1999, as amended by Resolution No. 011624 dated October 4, 2001.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated July 28, 2009 and Resolution
dated November 9, 2009 of the Court of Appeals in CA-G.R. SP No. 106031 are AFFIRMED and UPHELD. No
costs.
SO ORDERED.
G.R. No. 173264 February 22, 2008
CIVIL SERVICE COMMISSION, petitioner,
vs.
NITA P. JAVIER, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse the
Decision1 of the Court of Appeals (CA) dated September 29, 2005, as well as its Resolution of June 5, 2006, in CA-
G.R. SP No. 88568, which set aside the resolutions and orders of the Civil Service Commission (CSC) invalidating
the appointment of respondent as Corporate Secretary of the Board of Trustees of the Government Service and
Insurance System (GSIS).
The facts are undisputed.
According to her service record,2 respondent was first employed as Private Secretary in the GSIS, a government
owned and controlled corporation (GOCC), on February 23, 1960, on a "confidential" status. On July 1, 1962,
respondent was promoted to Tabulating Equipment Operator with "permanent" status. The "permanent" status
stayed with respondent throughout her career. She spent her entire career with GSIS, earning several more
promotions, until on December 16, 1986, she was appointed Corporate Secretary of the Board of Trustees of the
corporation.
On July 16, 2001, a month shy of her 64th birthday,3 respondent opted for early retirement and received the
corresponding monetary benefits.4
On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the Board of Trustees, reappointed
respondent as Corporate Secretary, the same position she left and retired from barely a year earlier. Respondent
was 64 years old at the time of her reappointment.5 In its Resolution, the Board of Trustees classified her
appointment as "confidential in nature and the tenure of office is at the pleasure of the Board."6
Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her service
and circumvent the laws on compulsory retirement.7 This is because under Republic Act (R.A.) No. 8291, or the
Government Service Insurance System Act of 1997, the compulsory retirement age for government employees is 65
years, thus:
Sec. 13. x x x
(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee
at sixty-five (65) years of age with at least fifteen (15) years of service: Provided, That if he has less than
fifteen (15) years of service, he may be allowed to continue in the service in accordance with existing civil
service rules and regulations.
Under the civil service regulations, those who are in primarily confidential positions may serve even beyond the age
of 65 years. Rule XIII of the Revised Omnibus Rules on Appointments and Other Personnel Actions, as amended,
provides that:
Sec. 12. (a) No person who has reached the compulsory retirement age of 65 years can be appointed to any
position in the government, subject only to the exception provided under sub-section (b) hereof.
xxxx
b. A person who has already reached the compulsory retirement age of 65 can still be appointed to a
coterminous/primarily confidential position in the government.
A person appointed to a coterminous/primarily confidential position who reaches the age of 65 is considered
automatically extended in the service until the expiry date of his/her appointment or until his/her services are
earlier terminated.8
It is for these obvious reasons that respondent's appointment was characterized as "confidential" by the GSIS.
On October 10, 2002, petitioner issued Resolution No. 021314, invalidating the reappointment of respondent as
Corporate Secretary, on the ground that the
position is a permanent, career position and not primarily confidential.9
On November 2, 2002, the CSC, in a letter of even date, through its Chairperson Karina Constantino-David, informed
GSIS of CSC's invalidation of respondent's appointment, stating, thus:
 Records show that Ms. Javier was formerly appointed as Corporate Secretary in a "Permanent" capacity until
her retirement in July 16, 2001. The Plantilla of Positions shows that said position is a career position.
However, she was re-employed as Corporate Secretary, a position now declared as confidential by the Board
of Trustees pursuant to Board Resolution No. 94 dated April 3, 2002.
Since the position was not declared primarily confidential by the Civil Service Commission or by any law, the
appointment of Ms. Javier as Corporate Secretary is hereby invalidated.10
Respondent and GSIS sought to reconsider the ruling of petitioner. CSC replied that the position of Corporate
Secretary is a permanent (career) position, and not primarily confidential (non-career); thus, it was wrong to appoint
respondent to this position since she no longer complies with eligibility requirements for a permanent career status.
More importantly, as respondent by then has reached compulsory retirement at age 65, respondent was no longer
qualified for a permanent career position.11 With the denial of respondent's plea for reconsideration, she filed a
Petition for Review with the Court of Appeals.
On September 29, 2005, the CA rendered a Decision setting aside the resolution of petitioner invalidating
respondent's appointment.12 The CA ruled that in determining whether a position is primarily confidential or
otherwise, the nature of its functions, duties and responsibilities must be looked into, and not just its formal
classification.13 Examining the functions, duties and responsibilities of the GSIS Corporate Secretary, the CA
concluded that indeed, such a position is primarily confidential in nature.
Petitioner filed a motion for reconsideration, which was denied by the CA on June 5, 2006.
Hence, herein petition.
The petition assails the CA Decision, contending that the position of Corporate Secretary is a career position and not
primarily confidential in nature.14 Further, it adds that the power to declare whether any position in government is
primarily confidential, highly technical or policy determining rests solely in petitioner by virtue of its constitutional
power as the central personnel agency of the government.15
Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature and that it
is within the powers of the GSIS Board of Trustees to declare it so.16 She argues that in determining the proper
classification of a position, one should be guided by the nature of the office or position, and not by its formal
designation.17
Thus, the Court is confronted with the following issues: whether the courts may determine the proper classification of
a position in government; and whether the position of corporate secretary in a GOCC is primarily confidential in
nature.
The Court's Ruling
The courts may determine the proper
classification of a position in government.
Under Executive Order No. 292, or the Administrative Code of 1987, civil service positions are currently classified
into either 1) career service and 2) non-career service positions.18
Career positions are characterized by: (1) entrance based on merit and fitness to be determined as far as
practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure.19
In addition, the Administrative Code, under its Book V, sub-classifies career positions according to "appointment
status," divided into: 1) permanent - which is issued to a person who meets all the requirements for the positions to
which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law,
rules and standards promulgated in pursuance thereof; and 2) temporary - which is issued, in the absence of
appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy, to a person who meets all
the requirements for the position to which he is being appointed except the appropriate civil service eligibility;
provided, that such temporary appointment shall not exceed twelve months, and the appointee may be replaced
sooner if a qualified civil service eligible becomes available.20
Positions that do not fall under the career service are considered non-career positions, which are characterized by:
(1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or which is co-terminous with that of the appointing
authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose
employment was made.21
Examples of positions in the non-career service enumerated in the Administrative Code are:
Sec. 9. Non-Career Service. - x x x
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
 (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and
their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their personal or
confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with a special
contract to undertake a specific work or job, requiring special or technical skills not available in the employing
agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis supplied)
A strict reading of the law reveals that primarily confidential positions fall under the non-career service. It is also clear
that, unlike career positions, primarily confidential and other non-career positions do not have security of tenure. The
tenure of a confidential employee is co-terminous with that of the appointing authority, or is at the latter's pleasure.
However, the confidential employee may be appointed or remain in the position even beyond the compulsory
retirement age of 65 years.22
Stated differently, the instant petition raises the question of whether the position of corporate secretary in a GOCC,
currently classified by the CSC as belonging to the permanent, career service, should be classified as primarily
confidential, i.e., belonging to the non-career service. The current GSIS Board holds the affirmative view, which is
ardently opposed by petitioner. Petitioner maintains that it alone can classify government positions, and that the
determination it made earlier, classifying the position of GOCC corporate secretary as a permanent, career position,
should be maintained.
At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily
confidential positions in the civil service. Neither is there a law that gives an enumeration of positions classified as
primarily confidential.
What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which
describe or give examples of confidential positions in government.
Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already
made by an agency or branch of government?
Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by
the legislative or executive branches, or even by a constitutional body like the petitioner.23 The Court is expected to
make its own determination as to the nature of a particular position, such as whether it is a primarily confidential
position or not, without being bound by prior classifications made by other bodies.24 The findings of the other
branches of government are merely considered initial and not conclusive to the Court.25 Moreover, it is well-
established that in case the findings of various agencies of government, such as the petitioner and the CA in the
instant case, are in conflict, the Court must exercise its constitutional role as final arbiter of all justiciable
controversies and disputes.26
Piñero v. Hechanova,27 interpreting R.A. No. 2260, or the Civil Service Act of 1959, emphasized how the legislature
refrained from declaring which positions in the bureaucracy are primarily confidential, policy determining or highly
technical in nature, and declared that such a determination is better left to the judgment of the courts. The Court, with
the ponencia of Justice J.B.L. Reyes, expounded, thus:
The change from the original wording of the bill (expressly declared by law x x x to be policy determining, etc.)
to that finally approved and enacted ("or which are policy determining, etc. in nature") came about because of
the observations of Senator Tañada, that as originally worded the proposed bill gave Congress power
to declare by fiat of law a certain position as primarily confidential or policy determining, which
should not be the case. The Senator urged that since the Constitution speaks of positions which are
"primarily confidential, policy determining or highly technical in nature," it is not within the power of
Congress to declare what positions are primarily confidential or policy determining. "It is the nature
alone of the position that determines whether it is policy determining or primarily confidential."Hence,
the Senator further observed, the matter should be left to the "proper implementation of the laws, depending
upon the nature of the position to be filled", and if the position is "highly confidential" then the President and
the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, "But in positions that involved both confidential matters and
matters which are routine, x x x who is going to determine whether it is primarily confidential?"
Senator Tañada replied:
 "SENATOR TAÑADA: Well. at the first instance, it is the appointing power that determines that:
the nature of the position. In case of conflict then it is the Court that determines whether the
position is primarily confidential or not.
"I remember a case that has been decided by the Supreme Court involving the position of a district
engineer in Baguio, and there. precisely, the nature of the position was in issue. It was the Supreme
Court that passed upon the nature of the position, and held that the President could not transfer the
district engineer in Baguio against his consent."
Senator Tañada, therefore, proposed an amendment to section 5 of the bill, deleting the words "to be" and
inserting in lieu thereof the words "Positions which are by their nature" policy determining, etc., and deleting
the last words "in nature". Subsequently, Senator Padilla presented an amendment to the Tañada
amendment by adopting the very words of the Constitution, i.e., "those which are policy determining, primarily
confidential and highly technical in nature". The Padilla amendment was adopted, and it was this last wording
with which section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-
681).
It is plain that, at least since the enactment of the 1959 Civil Service Act (R. A. 2260), it is the nature of the
position which finally determines whether a position is primarily confidential, policy determining or
highly technical. Executive pronouncements can be no more than initial determinations that are not
conclusive in case of conflict. And it must be so, or else it would then lie within the discretion of title Chief
Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII, of the
Constitution.28(Emphasis and underscoring supplied)
This doctrine in Piñero was reiterated in several succeeding cases.29
Presently, it is still the rule that executive and legislative identification or classification of primarily confidential, policy-
determining or highly technical positions in government is no more than mere declarations, and does not foreclose
judicial review, especially in the event of conflict. Far from what is merely declared by executive or legislative fiat, it is
the nature of the position which finally determines whether it is primarily confidential, policy determining or highly
technical, and no department in government is better qualified to make such an ultimate finding than the judicial
branch.
Judicial review was also extended to determinations made by petitioner. In Griño v. Civil Service Commission,30 the
Court held:
The fact that the position of respondent Arandela as provincial attorney has already been classified as one
under the career service and certified as permanent by the Civil Service Commission cannot conceal or alter
its highly confidential nature. As in Cadiente where the position of the city legal officer was duly attested as
permanent by the Civil Service Commission before this Court declared that the same was primarily
confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also
a primarily confidential position. To rule otherwise would be tantamount to classifying two positions with the
same nature and functions in two incompatible categories.31
The framers of the 1987 Constitution were of the same disposition. Section 2 (2) Article IX (B) of the Constitution
provides that:
Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as
practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical,
by competitive examination.
The phrase "in nature" after the phrase "policy-determining, primarily confidential, or highly technical" was deleted
from the 1987 Constitution.32 However, the intent to lay in the courts the power to determine the nature of a position
is evident in the following deliberation:
MR. FOZ. Which department of government has the power or authority to determine whether a position is
policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but
the final decision is done by the court. The Supreme Court has constantly held that whether or not a
position is policy-determining, primarily confidential or highly technical, it is determined not by the
title but by the nature of the task that is entrusted to it. For instance, we might have a case where a
position is created requiring that the holder of that position should be a member of the Bar and the law
classifies this position as highly technical. However, the Supreme Court has said before that a position which
requires mere membership in the Bar is not a highly technical position. Since the term 'highly technical' means
something beyond the ordinary requirements of the profession, it is always a question of fact.
 MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the
competitive system should be upheld?
FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly
technical has been the source of practices which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says
that a position is primarily confidential when in fact it is not, we can always challenge that in court. It
is not enough that the law calls it primarily confidential to make it such; it is the nature of the duties
which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly
technical - as an exception - is to take it away from the usual rules and provisions of the Civil Service Law and
to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of
government employees and officers.
FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and
fitness. All it says is that there are certain positions which should not be determined by competitive
examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist
to undergo a competitive examination before appointment? Or a confidential secretary or any position in
policy-determining administrative bodies, for that matter? There are other ways of determining merit and
fitness than competitive examination. This is not a denial of the requirement of merit and fitness.33 (Emphasis
supplied)
This explicit intent of the framers was recognized in Civil Service Commission v. Salas,34 and Philippine Amusement
and Gaming Corporation v. Rilloraza,35 which leave no doubt that the question of whether the position of Corporate
Secretary of GSIS is confidential in nature may be determined by the Court.
The position of corporate secretary in a government owned
and controlled corporation, currently classified as a permanent
career position, is primarily confidential in nature.
First, there is a need to examine how the term "primarily confidential in nature" is described in jurisprudence.
According to Salas,36
Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260), there were two recognized
instances when a position may be considered primarily confidential: Firstly, when the President, upon
recommendation of the Commissioner of Civil Service, has declared the position to be primarily confidential;
and, secondly in the absence of such declaration, when by the nature of the functions of the office there exists
"close intimacy" between the appointee and appointing power which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of
state.37(Emphasis supplied)
However, Salas declared that since the enactment of R.A. No. 2260 and Piñero,38 it is the nature of the position
which finally determines whether a position is primarily confidential or not, without regard to existing executive or
legislative pronouncements either way, since the latter will not bind the courts in case of conflict.
A position that is primarily confidential in nature is defined as early as 1950 in De los Santos v. Mallare,39 through
the ponencia of Justice Pedro Tuason, to wit:
x x x These positions (policy-determining, primarily confidential and highly technical positions), involve the
highest degree of confidence, or are closely bound up with and dependent on other positions to which they
are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands
that appointments coming under this category be terminable at the will of the officer that makes them.
xxxx
Every appointment implies confidence, but much more than ordinary confidence is reposed in the
occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in
the aptitude of the appointee for the duties of the office but primarily close intimacy which insures
freedom of [discussion, delegation and reporting] without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state. x x x40 (Emphasis supplied)
Since the definition in De los Santos came out, it has guided numerous other cases.41 Thus, it still stands that a
position is primarily confidential when by the nature of the functions of the office there exists "close intimacy"
between the appointee and appointing power which insures freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust or confidential matters of state.
In classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in
character.42 A position is not necessarily confidential though the one in office may sometimes handle confidential
matters or documents.43 Only ordinary confidence is required for all positions in the bureaucracy. But, as held in De
los Santos,[44] for someone holding a primarily confidential position, more than ordinary confidence is required.
In Ingles v. Mutuc,45 the Court, through Chief Justice Roberto Concepcion as ponente, stated:
Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle
matters of similar nature. The Presiding and Associate Justices of the Court of Appeals sometimes
investigate, by designation of the Supreme Court, administrative complaints against judges of first instance,
which are confidential in nature. Officers of the Department of Justice, likewise, investigate charges against
municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice
charges against members of the Bar. All of these are "confidential" matters, but such fact does not
warrant the conclusion that the office or position of all government physicians and all Judges, as well
as the aforementioned assistant solicitors and officers of the Department of Justice
are primarilyconfidential in character.46 (Emphasis supplied)
It is from De los Santos that the so-called "proximity rule" was derived. A position is considered to be primarily
confidential when there is a primarily close intimacy between the appointing authority and the appointee, which
ensures the highest degree of trust and unfettered communication and discussion on the most confidential of
matters.47 This means that where the position occupied is already remote from that of the appointing authority, the
element of trust between them is no longer predominant.48 On further interpretation in Griño, this was clarified to
mean that a confidential nature would be limited to those positions not separated from the position of the appointing
authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy.49
Consequently, brought upon by their remoteness to the position of the appointing authority, the following were
declared by the Court to be not primarily confidential positions: City Engineer;50 Assistant Secretary to the
Mayor;51members of the Customs Police Force or Port Patrol;52 Special Assistant of the Governor of the Central
Bank, Export Department;53 Senior Executive Assistant, Clerk I and Supervising Clerk I and Stenographer in the
Office of the President;54 Management and Audit Analyst I of the Finance Ministry Intelligence Bureau;55 Provincial
Administrator;56 Internal Security Staff of the Philippine Amusement and Gaming Corporation (PAGCOR);57 Casino
Operations Manager;58 and Slot Machine Attendant.59 All positions were declared to be not primarily confidential
despite having been previously declared such either by their respective appointing authorities or the legislature.
The following were declared in jurisprudence to be primarily confidential positions: Chief Legal Counsel of the
Philippine National Bank;60 Confidential Agent of the Office of the Auditor, GSIS;61 Secretary of
the SangguniangBayan;62 Secretary to the City Mayor;63 Senior Security and Security Guard in the Office of the Vice
Mayor;64Secretary to the Board of a government corporation;65 City Legal Counsel, City Legal Officer or City
Attorney;66Provincial Attorney;67 Private Secretary;68 and Board Secretary II of the Philippine State College of
Aeronautics.69
In fine, a primarily confidential position is characterized by the close proximity of the positions of the appointer and
appointee as well as the high degree of trust and confidence inherent in their relationship.
Ineluctably therefore, the position of Corporate Secretary of GSIS, or any GOCC, for that matter, is a primarily
confidential position. The position is clearly in close proximity and intimacy with the appointing power. It also calls for
the highest degree of confidence between the appointer and appointee.
In classifying the position of Corporate Secretary of GSIS as primarily
confidential, the Court took into consideration the proximity rule together with the duties of the corporate secretary,
enumerated as follows:70
1. Performs all duties, and exercises the power, as defined and enumerated in Section 4, Title IX, P.D. No.
1146;
2. Undertakes research into past Board resolutions, policies, decisions, directives and other Board action, and
relate these to present matters under Board consideration;
3. Analyzes and evaluates the impact, effects and relevance of matters under Board consideration on existing
Board policies and provide the individual Board members with these information so as to guide or enlighten
them in their Board decision;
4. Records, documents and reproduces in sufficient number all proceedings of Board meetings and
disseminate relevant Board decisions/information to those units concerned;
5. Coordinates with all functional areas and units concerned and monitors the manner of implementation of
approved Board resolutions, policies and directives;
 6. Maintains a permanent, complete, systematic and secure compilation of all previous minutes of Board
meetings, together with all their supporting documents;
7. Attends, testifies and produces in Court or in administrative bodies duly certified copies of Board
resolutions, whenever required;
8. Undertakes the necessary physical preparations for scheduled Board meetings;
9. Pays honoraria of the members of the Board who attend Board meetings;
10. Takes custody of the corporate seal and safeguards against unauthorized use; and
11. Performs such other functions as the Board may direct and/or require.
The nature of the duties and functions attached to the position points to its highly confidential character.71 The
secretary reports directly to the board of directors, without an intervening officer in between them.72 In such an
arrangement, the board expects from the secretary nothing less than the highest degree of honesty, integrity and
loyalty, which is crucial to maintaining between them "freedom of intercourse without embarrassment or freedom
from misgivings or betrayals of personal trust or confidential matters of state."73
The responsibilities of the corporate secretary are not merely clerical or routinary in nature. The work involves
constant exposure to sensitive policy matters and confidential deliberations that are not always open to the public, as
unscrupulous persons may use them to harm the corporation. Board members must have the highest confidence in
the secretary to ensure that their honest sentiments are always and fully expressed, in the interest of the corporation.
In this respect, the nature of the corporate secretary's work is akin to that of a personal secretary of a public official, a
position long recognized to be primarily confidential in nature.74 The only distinction is that the corporate secretary is
secretary to the entire board, composed of a number of persons, but who essentially act as one body, while the
private secretary works for only one person. However, the degree of confidence involved is essentially the same.
Not only do the tasks listed point to sensitive and confidential acts that the corporate secretary must perform, they
also include "such other functions as the Board may direct and/or require," a clear indication of a closely intimate
relationship that exists between the secretary and the board. In such a highly acquainted relation, great trust and
confidence between appointer and appointee is required.
The loss of such trust or confidence could easily result in the board's termination of the secretary's services and
ending of his term. This is understandably justified, as the board could not be expected to function freely with a
suspicious officer in its midst. It is for these same reasons that jurisprudence, as earlier cited, has consistently
characterized personal or private secretaries, and board secretaries, as positions of a primarily confidential nature.75
The CA did not err in declaring that the position of Corporate Secretary of GSIS is primarily confidential in nature and
does not belong to the career service.
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various
GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure
and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded,
however, since the statutes themselves do not classify the position of corporate secretary as permanent and career
in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises.
As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in
government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the
greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust,"76 and that there
is no vested right in public office, nor an absolute right to hold office.77 No proprietary title attaches to a public office,
as public service is not a property right.78 Excepting constitutional offices which provide for special immunity
as regards salary and tenure, no one can be said to have any vested right in an office.79 The rule is that offices
in government, except those created by the constitution, may be abolished, altered, or created anytime by
statute.80 And any issues on the classification for a position in government may be brought to and determined by the
courts.81
WHEREFORE, premises considered, the Petition is DENIED. The Decision of the Court of Appeals dated September
29, 2005, in CA-G.R. SP No. 88568, as well as its Resolution of June 5, 2006 are hereby AFFIRMED in toto.
No costs.
SO ORDERED.
G.R. No. 178021 January 25, 2012
REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION, Petitioner,
vs.
MINERVA M.P. PACHEO, Respondent.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Republic
of the Philippines, represented by the Office of the Solicitor General (OSG), which assails the February 22, 2007
Decision1 and the May 15, 2007 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA
reversed the November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-assignment of
respondent Minerva M.P. Pacheos (Pacheo) not valid and ordering her reinstatement to her original station but
without backwages under the principle of "no work, no pay."
The Facts
Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of Internal Revenue (BIR) in
Revenue Region No. 7 (RR7), Quezon City.
On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-2002,3 ordering the reassignment
of Pacheo as Assistant Chief, Legal Division from RR7 in Quezon City to RR4 in San Fernando, Pampanga. The BIR
cited exigencies of the revenue service as basis for the issuance of the said RTAO.
Pacheo questioned the reassignment through her Letter dated May 9, 20024 addressed to Rene G. Banez, then
Commissioner of Internal Revenue (CIR). She complained that the transfer would mean economic dislocation since
she would have to spend ₱ 200.00 on daily travel expenses or approximately ₱ 4,000.00 a month. It would also
mean physical burden on her part as she would be compelled to wake up early in the morning for her daily travel
from Quezon City to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga to
Quezon City. She was of the view that that her reassignment was merely intended to harass and force her out of the
BIR in the guise of exigencies of the revenue service. In sum, she considered her transfer from Quezon City to
Pampanga as amounting to a constructive dismissal.
Due to the then inaction of the BIR, Pacheo filed a complaint5 dated May 30, 2002, before the CSC- National Capital
Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002. In its July 22, 2002 Order,6 the CSC-NCR
treated Pacheo’s Complaint as an appeal and dismissed the same, without prejudice, for failure to comply with
Sections 73 and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service.7
In its Letter-reply8 dated September 13, 2002, the BIR, through its Deputy Commissioner for Legal and Inspection
Group, Edmundo P. Guevara (Guevara), denied Pacheo’s protest for lack of merit. It contended that her
reassignment could not be considered constructive dismissal as she maintained her position as Revenue Attorney IV
and was designated as Assistant Chief of Legal Division. It emphasized that her appointment to the position of
Revenue Attorney IV was without a specific station. Consequently, she could properly be reassigned from one
organizational unit to another within the BIR. Lastly, she could not validly claim a vested right to any specific station,
or a violation of her right to security of tenure.
Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.
On November 21, 2005, the CSC issued Resolution No. 0516979 granting Pacheo’s appeal, the dispositive portion of
which reads:
WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue
Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal
Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY,
Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the
withholding by the BIR of Pacheo’s salary for the period she did not report to work is justified.
The CSCRO No. III is directed to monitor the implementation of this Resolution.
In granting Pacheo’s appeal, the CSC explained:
On the second issue, this Commission finds merit in appellant’s contention that her reassignment in not valid.
Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40, series of 1998, dated
December 14, 1998, which provides:
Section 6. Other Personnel Movements. The following personnel movements which will not require issuance of an
appointment shall nevertheless require an office order by duly authorized official.
a. Reassignment – Movement of an employee from one organizational unit to another in the same department or
agency which does not involve reduction in rank, status or salary. If reassignment is done without consent of the
employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be
regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal.
No assignment shall be undertaken if done indiscriminately or whimsically because the law is not intended as a
convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of
advancing and promoting public interest.
Reassignment of small salaried employee is not permissible if it causes significant financial dislocation.’
Although reassignment is a management prerogative, the same must be done in the exigency of the service without
diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned.
Reassignment of ‘small salaried’ employees, however is not allowed if it will cause significant financial dislocation to
the employee reassigned. Otherwise the Commission will have to intervene.
The primary purpose of emphasizing ‘small salaried employees’ in the foregoing rule is to protect the ‘rank and file’
employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in
Alzate v. Mabutas, (51 O.G. 2452) ruled:
‘ x x x [T]he protection against invalid transfer is especially needed by lower ranking employees. The Court
emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the
government set up occupy positions in the higher echelon should be entitled to security of tenure, unquestionable a
lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-
thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of
advancement on the merit system instituted by our civil service law.’
In other words, in order to be embraced in the term ‘small-salaried employees’, the latter must belong to the ‘rank
and file’; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. ‘Rank and file’ was
categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of
1991, dated January 28, 1991.
The facts established on record show that Pacheo belongs to the rank and file receiving an average monthly salary
of Twenty Thousand Pesos (₱ 20,000.00) under the salary standardization law and a monthly take home pay of
Fourteen Thousand Pesos (₱ 14,000.00). She has to spend around Four Thousand Pesos (₱ 4,000.00) a month for
her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her
monthly take home pay. Clearly, Pacheo’s salary shall be significantly reduced as a result of her reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:
‘Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of
assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office
without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation
allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in
the island and spend for her board and lodging. The circumstances surrounding Anore’s reassignment is exactly the
kind of reassignment that is being frowned upon by law.’
This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not
entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no
work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did
not report to work either at her new place of assignment or at her original station.10 [Emphases in the original]
Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not finding that she was
constructively dismissed and, therefore, entitled to back salary.
On March 7, 2006, the CSC issued Resolution No. 06039711 denying Pacheo’s motion for reconsideration.
Undaunted, Pacheo sought recourse before the CA via a petition for review.
In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of Pacheo, the fallo of
which states:
WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November 21, 2005 and March
7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby
entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full
backwages and benefits.
SO ORDERED.12
In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:
While this Court agrees that petitioner’s reassignment was not valid considering that a diminution in salary is enough
to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result
thereof.
It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank,
compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may
become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his
continued employment.
The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting
to mind the basic elements of justice and fair play. The employer must be able to show that the transfer is not
unreasonable, inconvenient, or prejudicial to the employee.
In this case, petitioner’s reassignment will result in the reduction of her salary, not to mention the physical burden
that she would suffer in waking up early in the morning to travel daily from Quezon City to San Fernando, Pampanga
and in coming home late at night.
Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no
other choice but to forego her continued employment.
Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in
petitioner’s salary and then rule that there is no constructive dismissal just because said reduction in salary will not
render petitioner penniless if she will report to her new place of assignment. It must be noted that there is
constructive dismissal when the reassignment of an employee involves a diminution in pay.
Having determined that petitioner has been constructively dismissed as a result of her reassignment, We shall
resolve whether or not she is entitled to backwages.
In denying petitioner’s claim for backwages, the CSC held:
This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not
entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no
work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did
not report for work either at her new place of assignment or at her original station."
Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division
Chief, who could not just abandon her duties merely because she protested her re-assignment and filed an appeal
afterwards.
We do not agree.
If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able,
willing and ready to work but was illegally locked out, dismissed or suspended. The "No work, no pay" principle
contemplates a "no work" situation where the employees voluntarily absent themselves.
In this case, petitioner was forced to forego her continued employment and did not just abandon her duties. In fact,
she lost no time in protesting her reassignment as a form of constructive dismissal. It is settled that the filing of a
complaint for illegal dismissal is inconsistent with a charge of abandonment. The filing of the complaint is proof
enough of his desire to return to work, thus negating any suggestion of abandonment.
Neither do we agree with the OSG when it opined that:
No one in the Civil Service should be allowed to decide on whether she is going to accept or not any work dictated
upon by the exigency of the service. One should consider that public office is a public trust and that the act of
respondent CIR enjoys the presumption of regularity. To uphold the failure of respondent to heed the RTAO would
result in chaos. Every employee would put his or her vested interest or personal opinion over and above the smooth
functioning of the bureaucracy.
Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987
Constitution.
The State shall afford full protection to labor, xxx and promote full employment and equality of employment
opportunities for all. It shall guarantee the rights of all workers to xxx security of tenure xxx
Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSG’s opinion that when the transfer is motivated
solely by the interest of the service of such act cannot be considered violative of the Constitution, thus:
"We do not agree to this view. While temporary transfers or assignments may be made of the personnel of a bureau
or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the
Administrative Code which party provides that ‘The Department Head also may, from time to time, in the interest of
the service, change the distribution among the several Bureaus and offices of his Department of the employees or
subordinates authorized by law,’ such cannot be undertaken when the transfer of the employee is with a view to his
removal. Such cannot be done without the consent of the employee. And if the transfer is resorted to as a scheme to
lure the employee away from his permanent position, such attitude is improper as it would in effect result in a
circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service. It is not
without reason that this Court made the following observation:
To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful
cause, in the form or guise of transfers from one office to another, or from one province to another, without the
consent of the transferee, would blast the hopes of these young civil service officials and career men and women,
destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force
that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be
far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free
and efficient Government force, possessed of self-respect and reasonable ambition."
Clearly, the principle of "no work, no pay" does not apply in this case. As held in Neeland v. Villanueva, Jr:
"We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did
not work. For the principle of "no work, no pay" does not apply when the employee himself was forced out of job. Xxx
Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee
could offer no work since he was forced out of work. Thus, to always require complete exoneration or performance of
work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was.
Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for
back salaries and other economic benefits on these grounds. We would otherwise be serving justice in halves."
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.
When a government official or employee in the classified civil service had been illegally dismissed, and his
reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he
is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.13
The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007 Resolution.
Hence, this petition.
THE ISSUES
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT
RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES,
NOTWITHSTANDING RESPONDENT’S REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS
IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO
SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER
14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER
REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO,
PAMPANGA.14
In her Memorandum,15 Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies of the revenue
service, was solely meant to harass her and force her to resign. As a result of her invalid reassignment, she was
constructively dismissed and, therefore, entitled to her back salaries and monetary benefits from the time of her
illegal dismissal up to her reinstatement.
In its own Memorandum,16 the CSC, through the OSG, argues that constructive dismissal is not applicable in this
case because it was Pacheo herself who adamantly refused to report for work either in her original station or new
place of assignment in clear violation of Section 24 (f) of Presidential Decree (PD) No. 807.17 Citing
jurisprudence,18the CSC avers that the RTAO is immediately executory, unless otherwise ordered by the CSC.
Therefore, Pacheo should have first reported to her new place of assignment and then appealed her case to the
CSC if she indeed believed that there was no justification for her reassignment. Since Pacheo did not report for work
at all, she is not entitled to backwages following the principle of "no work, no pay."
THE COURT’S RULING
The petition fails to persuade.
It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum, the OSG initially argues
for the validity of RTAO No. 25-2002 authorizing Pacheo’s reassignment from Quezon City to San Fernando,
Pampanga. Later, however, it specifically prays for the reinstatement of CSC Resolution Nos. 051697 and 060397,
which categorically declared RTAO No. 25-2002 as not valid. In seeking such relief, the OSG has effectively
accepted the finding of the CSC, as affirmed by the CA, that Pacheo’s reassignment was indeed invalid. Since the
issue of Pacheo’s reassignment is already settled, the Court finds it futile to pass upon the same at this point.
The question that remains to be resolved is whether or not Pacheo’s assignment constitutes constructive dismissal
and, thus, entitling her to reinstatement and backwages. Was Pacheo constructively dismissed by reason of her
reassignment?
The Court agrees with the CA on this point.
While a temporary transfer or assignment of personnel is permissible even without the employee's prior consent, it
cannot be done when the transfer is a preliminary step toward his removal, or a scheme to lure him away from his
permanent position, or when it is 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.19
Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines constructive dismissal
as a situation when an employee quits his work because of the agency head’s unreasonable, humiliating, or
demeaning actuations which render continued work impossible. Hence, the employee is deemed to have been
illegally dismissed. This may occur although there is no diminution or reduction of salary of the employee. It may be a
transfer from one position of dignity to a more servile or menial job.
The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work either in her original
station in Quezon City or her new place of assignment in San Fernando, Pampanga negates her claim of
constructive dismissal in the present case being in violation of Section 24 (f) of P.D. 807 [now Executive
Order (EO)292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].20 It further argues that the subject RTAO was
immediately executory, unless otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have
reported to her new place of assignment and then appealed her case to the CSC if she indeed believed that there
was no justification for her reassignment.
Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally impossible for Pacheo to
report to her original place of assignment in Quezon City considering that the subject RTAO No. 25-2002 also
reassigned Amado Rey B. Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4, San Fernando,
Pampanga to RR7, Quezon City, the very same position Pacheo formerly held. The reassignment of Pagarigan to
the same position palpably created an impediment to Pacheo’s return to her original station.
The Court finds Itself unable to agree to CSC’s argument that the subject RTAO was immediately executory. The
Court deems it necessary to distinguish between a detail and reassignment, as they are governed by different rules.
A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6), thus:
(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an
appointment and shall be allowed, only for a limited period in the case of employees occupying professional,
technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal
his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise
ordered by the Commission. [Underscoring supplied]
On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (7), thus:
(7) Reassignment.—An employee may be reassigned from one organizational unit to another in the same
agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring
supplied]
The principal distinctions between a detail and reassignment lie in the place where the employee is to be moved and
in its effectivity pending appeal with the CSC. Based on the definition, a detail requires a movement from one agency
to another while a reassignment requires a movement within the same agency. Moreover, pending appeal with the
CSC, an order to detail is immediately executory, whereas a reassignment order does not become immediately
effective.1âwphi1
In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from Quezon City to San
Fernando, Pampanga within the same agency is undeniably a reassignment. The OSG posits that she should have
first reported to her new place of assignment and then subsequently question her reassignment. It is clear, however,
from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the
new place of assignment prior to questioning an alleged invalid reassignment imposed upon an employee. Pacheo
was well within her right not to report immediately to RR4, San Fernando, Pampanga, and to question her
reassignment.
Reassignments involving a reduction in rank, status or salary violate an employee’s security of tenure, which is
assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations.
Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and
reassignments, which are tantamount to illegal/constructive removal.21
The Court is not unaware that the BIR is authorized to assign or reassign internal revenue officers and employees as
the exigencies of service may require. This authority of the BIR, however, should be prudently exercised in
accordance with existing civil service rules.
Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and back wages? The Court
agrees with the CA that she is entitled to reinstatement, but finds Itself unable to sustain the ruling that she is entitled
to full back wages and benefits. It is a settled jurisprudence22 that an illegally dismissed civil service employee is
entitled to back salaries but limited only to a maximum period of five (5) years, and not full back salaries from his
illegal dismissal up to his reinstatement.
WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15, 2007 Resolution of
the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with MODIFICATION that respondent
Minerva M.P. Pacheo is hereby ordered reinstated without loss of seniority rights but is only entitled to the payment
of back salaries corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002.
SO ORDERED.
G.R. No. 194994 April 16, 2013
EMMANUEL A. DE CASTRO, Petitioner,
vs.
EMERSON S. CARLOS, Respondent.
DECISION
SERENO, CJ.:
Before us is a Petition for the issuance of a writ of quo warranto under Rule 66 filed by Emmanuel A. de Castro
(petitioner) seeking to oust respondent Emerson S. Carlos (respondent) from the position of assistant general
manager for operations (AGMO) of the Metropolitan Manila Development Authority (MMDA).
On 29 July 2009, then President Gloria Macapagal Arroyo appointed petitioner as AGM0.1 His appointment was
concurred in by the members of the Metro Manila Council in MMDA Resolution No. 09-10, Series of 2009.2 He took
his oath on 17 August 2009 before then Chairperson Bayani F. Fernando.3
Meanwhile, on 29 July 2010, Executive Secretary Paquito Ochoa issued Office of the President (OP) Memorandum
Circular No. 2, Series of 2010, amending OP Memorandum Circular No. 1, Series of 2010.
OP Memorandum Circular No. 2 states:
2. All non-Career Executive Service Officials (non-CESO) occupying Career Executive Service (CES) positions in all
agencies of the executive branch shall remain in office and continue to perform their duties and discharge their
responsibility until October 31, 2010 or until their resignations have been accepted and/or until their respective
replacements have been appointed or designated, whichever comes first, unless they are reappointed in the
meantime.4
On 30 July 2010, Atty. Francis N. Tolentino, chairperson of the MMDA, issued Office Order No. 106,5 designating
Corazon B. Cruz as officer-in-charge (OIC) of the Office of the AGMO. Petitioner was then reassigned to the Legal
and Legislative Affairs Office, Office of the General Manager. The service vehicle and the office space previously
assigned to him were withdrawn and assigned to other employees.
Subsequently, on 2 November 2010, Chairperson Tolentino designated respondent as OIC of the Office of the
AGMO by virtue of Memorandum Order No. 24,6 which in turn cited OP Memorandum Circular No. 2 as basis.
Thereafter, the name of petitioner was stricken off the MMDA payroll, and he was no longer paid his salary beginning
November 2010.
Petitioner sought a clarification7 from the Career Executive Service Board (CESB) as to the proper classification of
the position of AGMO. In her reply,8 Executive Director Maria Anthonette Allones (Executive Director Allones), CESO
I, stated that the position of AGMO had not yet been classified and could not be considered as belonging to the
Career Executive Service (CES). She further stated that a perusal of the appointment papers of petitioner showed
that he was not holding a coterminous position. In sum, she said, he was not covered by OP Memorandum Circular
Nos. 1 and 2.
Petitioner was later offered the position of Director IV of MMDA Public Health and Safety Services and/or MMDA
consultant. He turned down the offer, claiming that it was a demotion in rank.
Demanding payment of his salary and reinstatement in the monthly payroll,9 petitioner sent a letter on 5 December
2010 to Edenison Faisan, assistant general manager (AGM) for Finance and Administration; and Lydia Domingo,
Director III, Administrative Services. For his failure to obtain an action or a response from MMDA, he then made a
formal demand for his reinstatement as AGMO through a letter addressed to the Office of the President on 17
December 2010.10
However, on 4 January 2011, President Benigno S. Aquino III (President Aquino) appointed respondent as the new
AGMO of the MMDA.11 On 10 January 2011, the latter took his oath of office.
Hence, the instant Petition.
The Office of the Solicitor General (OSG), representing respondent, filed its Comment on 19 August
2011.12However, upon motion of petitioner, it was disqualified from representing respondent. Thus, a private law
firm13entered an appearance as counsel for respondent and adopted the Comment filed by the OSG.14
Petitioner filed his Reply on 17 November 2011.
ISSUES
Petitioner raises the following issues15 for the consideration of this Court:
(1) Whether respondent Emerson S. Carlos was validly appointed by President Aquino to the position of AGMO of
the MMDA;
(2) Whether petitioner Emmanuel A. de Castro is entitled to the position of AGMO; and
(3) Whether or not respondent should pay petitioner the salaries and financial benefits he received during his illegal
tenure as AGMO of the MMDA.
THE COURT’S RULING
Petitioner contends that Section 2(3), Article IX(B) of the 1987 Constitution guarantees the security of tenure of
employees in the civil service. He further argues that his appointment as AGMO is not covered by OP Memorandum
Circular No. 2, since it is not a CES position as determined by the CESB.
On the other hand, respondent posits that the AGMO position belongs to the CES; thus, in order to have security of
tenure, petitioner, must be a Career Executive Service official (CESO). Respondent maintains that the function of an
AGM is executive and managerial in nature. Thus, considering that petitioner is a non-CESO occupying a CES
position, he is covered by OP Memorandum Circular Nos. 1 and 2. Respondent likewise raises the issue of
procedural infirmity in the direct recourse to the Supreme Court by petitioner, who thereby failed to adhere to the
doctrine of hierarchy of courts.
Hierarchy of Courts
As to the procedural issue, petitioner submits that a direct recourse to this Court is warranted by the urgent demands
of public interest, particularly the veritable need for stability in the civil service and the protection of the rights of civil
servants. Moreover, considering that no other than the President of the Philippines is the appointing authority,
petitioner doubts if a trial court judge or an appellate court justice, with a prospect of promotion in the judiciary would
be willing to go against a presidential appointment.
Although Section 5(1) of Article VIII of the 1987 Constitution explicitly provides that the Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus, the jurisdiction of
this Court is not exclusive but is concurrent with that of the Court of Appeals and regional trial court and does not
give petitioner unrestricted freedom of choice of court forum.16 The hierarchy of courts must be strictly observed.
Settled is the rule that "the Supreme Court is a court of last resort and must so remain if it is to satisfactorily perform
the functions assigned to it by the fundamental charter and immemorial tradition."17 A disregard of the doctrine of
hierarchy of courts warrants, as a rule, the outright dismissal of a petition.18
A direct invocation of this Court’s jurisdiction is allowed only when there are special and important reasons that are
clearly and specifically set forth in a petition.19 The rationale behind this policy arises from the necessity of preventing
(1) inordinate demands upon the time and attention of the Court, which is better devoted to those matters within its
exclusive jurisdiction; and (2) further overcrowding of the Court’s docket.20
In this case, petitioner justified his act of directly filing with this Court only when he filed his Reply and after
respondent had already raised the procedural infirmity that may cause the outright dismissal of the present Petition.
Petitioner likewise cites stability in the civil service and protection of the rights of civil servants as rationale for
disregarding the hierarchy of courts.
Petitioner’s excuses are not special and important circumstances that would allow a direct recourse to this Court.
More so, mere speculation and doubt to the exercise of judicial discretion of the lower courts are not and cannot be
valid justifications to hurdle the hierarchy of courts. Thus, the Petition must be dismissed.
Nature of the AGMO Position
Even assuming that petitioner’s direct resort to this Court is permissible, the Petition must still be dismissed for lack
of merit.
"A petition for quo warranto is a proceeding to determine the right of a person to use or exercise a franchise or an
office and to oust the holder from the enjoyment, thereof, if the claim is not well-founded, or if his right to enjoy the
privilege has been forfeited."21 Where the action is filed by a private person, in his own name, he must prove that he
is entitled to the controverted position, otherwise, respondent has a right to the undisturbed possession of the
office.22
The controversy arose from the issuance of OP Memorandum Circular Nos. 1 and 2, which applies to all non-
CESO’s occupying CES positions in all agencies of the executive branch. Petitioner, being a non-CESO, avers that
he is not covered by these OP memoranda considering that the AGMO of the MMDA is a non-CES position.
In order to settle the controversy, there is a need to determine the nature of the contentious position of AGMO of the
MMDA.
Career vs. non-career
Section 4 of Republic Act No. (R.A.) 7924,23 otherwise known as the MMDA Charter, specifically created the position
of AGMO. It reads as follows:
Sec. 4 Metro Manila Council. x x x.
xxxx
The Council shall be headed by a Chairman, who shall be appointed by the President and who shall continue to hold
office at the discretion of the appointing authority. He shall be vested with the rank, rights, privileges,
disqualifications, and prohibitions of a Cabinet member.
The Chairman shall be assisted by a General Manager, an Assistant General Manager for Finance and
Administration, an Assistant General Manager for Planning and an Assistant General Manager for Operations, all of
whom shall be appointed by the President with the consent and concurrence of the majority of the Council, subject to
civil service laws and regulations. They shall enjoy security of tenure and may be removed for cause in accordance
with law. (Emphasis supplied)
Executive Order No. (E.O.) 292, otherwise known as The Revised Administrative Code of 1987, provides for two
classifications of positions in the civil service: career and non-career.24
Career service is characterized by the existence of security of tenure,25 as contradistinguished from non-career
service whose tenure is coterminous with that of the appointing authority; or subject to the latter’s pleasure; or limited
to a period specified by law or to the duration of a particular project for which purpose the appointment was made.26
Applying the foregoing distinction to the instant case, this Court finds that an AGMO holds a career position,
considering that the MMDA Charter specifically provides that AGMs enjoy security of tenure – the core characteristic
of a career service, as distinguished from a non-career service position.
CES vs. non-CES
Career service includes the following:
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic
staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which
shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by
the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as
the Foreign Service Officers in the Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary
functions, who do not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.27 (Emphasis supplied)
In Civil Service Commission v. Court of Appeals and PCSO,28 the Court clarified the positions covered by the CES:
Thus, from the long line of cases cited above, in order for a position to be covered by the CES, two elements must
concur. First, the position must either be (1) a position enumerated under Book V, Title I, Subsection A, Chapter 2,
Section 7(3) of the Administrative Code of 1987, i.e., Undersecretary, Assistant Secretary, Bureau Director, Assistant
Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service, or (2) a position of
equal rank as those enumerated, and identified by the Career Executive Service Board to be such position of equal
rank. Second, the holder of the position must be a presidential appointee. Failing in any of these requirements, a
position cannot be considered as one covered by the third-level or CES. (Emphasis supplied)
In sum, there are two elements required for a position to be considered as CES:
1) The position is among those enumerated under Book V, Title I, Subtitle A, Chapter 2, Section 7(3) of the
Administrative Code of 1987 OR a position of equal rank as those enumerated and identified by the CESB to be such
position of equal rank; AND
2) The holder of the position is a presidential appointee. Records show that in reply29 to Chairperson Tolentino’s
query on whether the positions of general manager and AGM of the MMDA are covered by the CES,30 the CESB –
thru Executive Director Allones – categorically stated that these positions are not among those covered by the CES.
Upon petitioner’s separate inquiry on the matter,31 the CESB similarly responded that the AGMO’s position could not
be considered as belonging to the CES.32 Additionally, Executive Director Allones said that petitioner was not
covered by OP Memorandum Circular Nos. 1 and 2, to wit:
A cursory perusal of your appointment papers would show that it does not bear any indication that you are holding a
coterminous appointment. Neither your position as AGMO can be considered as created in excess of the authorized
staffing pattern since RA 7924, the law that created the MMDA clearly provided for such position. As further stated
above, your position will not fall under paragraph No. 2 of OP MC 1 because it is not yet considered as belonging to
the CES. Hence, we posit that you are not covered by OP MC 1 and 2.33
However, contrary to Executive Director Allones’ statement, the CESB, through Resolution No. 799 already declared
certain positions meeting the criteria set therein as embraced within the CES.
It is worthy of note that CESB Resolution No. 799 was issued on 19 May 2009, even prior to petitioner’s appointment
on 29 July 2009. Moreover, as early as 31 May 1994, the above classification was already embodied in CSC
Resolution No. 34-2925, circularized in CSC Memorandum Circular 21, Series of 1994.
Resolution No. 799 classified the following positions as falling within the coverage of the CES:
a. The Career Executive Service includes the positions of Undersecretary, Assistant Secretary, Bureau director,
Assistant Bureau Director, regional Director (department-wide and bureau-wide), Assistant Regional Director
(department-wide and bureau-wide), and Chief of Department Service;
b. Unless provided otherwise, all other managerial or executive positions in the government, including government-
owned or controlled corporations with original charters are embraced within the CES provided that they meet the
following criteria:
i.) The position is a career position;
ii.) The position is above division chief level; and,
iii.) The duties and responsibilities of the position require performance of executive and managerial functions.
Without a doubt, the AGMO position is not one of those enumerated in the above-cited paragraph(a) but it clearly
falls under paragraph(b) considering that it belongs to a government-owned and controlled corporation with an
original charter. The nature of AGMO is clear from the provisions of the MMDA Charter.
First, we have already determined that an AGMO is a career position that enjoys security of tenure by virtue of the
MMDA Charter.
Second, it is undisputed that the position of AGMO is above the division chief level, which is equivalent to the rank of
assistant secretary with Salary Grade 29.34
Third, a perusal of the MMDA Charter readily reveals that the duties and responsibilities of the position require the
performance of executive and managerial functions.
Section 12.4, Rule IV of the Rules and Regulations Implementing R.A. 7924 provides the powers, functions, duties
and responsibilities of an AGMO, as follows:
12.4 Assistant General Manager for Operations
The Assistant General Manager for Operations shall perform the following functions:
a. Establish a mechanism for coordinating and operationalizing the delivery of metro-wide basic services;
b. Maintain a monitoring system for the effective evaluation of the implementation of approved policies, plans and
programs for the development of Metropolitan Manila;
c. Mobilize the participation of local government units, executive departments or agencies of the national
government, and the private sector in the delivery of metro-wide services; and
d. Operate a central radio communication system.
He shall perform such other duties as are incidental or related to the above functions or as may be assigned from
time to time.
An AGMO performs functions that are managerial in character; exercises management over people, resource, and/or
policy; and assumes functions like planning, organizing, directing, coordinating, controlling, and overseeing the
activities of MMDA. The position requires the application of managerial or supervisory skills necessary to carry out
duties and responsibilities involving functional guidance, leadership, and supervision.
For the foregoing reasons, the position of AGMO is within the coverage of the CES.
In relation thereto, positions in the career service, for which appointments require examinations, are grouped into
three major levels:35
Sec. 8. Classes of positions in the Career Service. — (1) Classes of positions in the career service appointment to
which requires examinations shall be grouped into three major levels as follows:
(a) The first level shall include clerical, trades, crafts and custodial service positions which involve non-professional
or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate
studies;
(b) The second level shall include professional, technical, and scientific positions which involve professional,
technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work
up to Division Chief levels; and
(c) The third level shall cover positions in the Career Executive Service. (Emphasis supplied)
Entrance to different levels requires corresponding civil service eligibilities.36 Those at the third level (CES positions)
require career service executive eligibility (CSEE) as a requirement for permanent appointment.37
Evidently, an AGMO should possess all the qualifications required by third-level career service within the CES. In this
case, petitioner does not have the required eligibility. Therefore, we find that his appointment to the position of
AGMO was merely temporary.
Amores v. Civil Service Commission38 is instructive as to the nature of temporary appointments in the CES. The
Court held therein that an appointee cannot hold a position in a permanent capacity without the required CES
eligibility:
We begin with the precept, firmly established by law and jurisprudence that a permanent appointment in the civil
service is issued to a person who has met the requirements of the position to which the appointment is made in
accordance with law and the rules issued pursuant thereto. An appointment is permanent where the appointee meets
all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed,
and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil
service eligibility.
xxxx
With particular reference to positions in the career executive service (CES), the requisite civil service eligibility is
acquired upon passing the CES examinations administered by the CES Board and the subsequent conferment of
such eligibility upon passing the examinations. Once a person acquires eligibility, he either earns the status of a
permanent appointee to the CES position to which he has previously been appointed, or he becomes qualified for a
permanent appointment to that position provided only that he also possesses all the other qualifications for the
position. Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in
the career executive service a permanent one. Petitioner does not possess such eligibility, however, it cannot be said
that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the
government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill
vacancies in the government. But in all such cases, the appointment is at best merely temporary as it is said to be
conditioned on the subsequent obtention of the required CES eligibility. This rule, according to De Leon v. Court of
Appeals, Dimayuga v. Benedicto, Caringal v. Philippine Charity Sweepstakes Office, and Achacoso v. Macaraig, is
invariable even though the given appointment may have been designated as permanent by the appointing authority.
xxxx
Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon
passing the CES examinations administered by the CES Board x x x.
Petitioner undisputedly lacked CES eligibility. Thus, he did not hold the position of AGMO in a permanent capacity or
acquire security of tenure in that position. Otherwise stated, his appointment was temporary and "co-terminus with
the appointing authority."39 In Carillo v. CA,40 this Court ruled that "one who holds a temporary appointment has no
fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being no
need to show that the termination is for cause." Therefore, we find no violation of security of tenure when petitioner
was replaced by respondent upon the latter’s appointment to the position of AGMO by President Aquino.
Even granting for the sake of argument that the position of AGMO is yet to be classified by the CESB, petitioner’s
appointment is still deemed coterminous pursuant to CESB Resolution No. 945 issued on 14 June 2011, which
reads:
WHEREAS, on November 23, 2010, the Supreme Court in the case of PCSO v. CSC, G.R. NO. 185766 and G.R.
No. 185767 limited the coverage of positions belonging to the CES to positions requiring Presidential appointments.
WHEREAS, in the same vein, CES positions have now become synonymous to third level positions by virtue of the
said ruling.
WHEREFORE, foregoing premises considered, the Board RESOLVES, as it is hereby RESOLVED, to issue the
following guidelines to clarify the policy on the coverage of CES and its classification:
1. For career service positions requiring Presidential appointments expressly enumerated under Section 7(3),
Chapter 2, Subtitle A, Title 1, Book V of the Administrative Code of 1987 namely:
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, and Chief of Department Service, no classification of position is necessary to place them under
the coverage of the CES, except if they belong to Project Offices, in which case a position classification is required,
in consultation with the Department of Budget and Management (DBM).
2. For positions requiring Presidential appointments other than those enumerated above, a classification of positions
is necessary which shall be conducted by the Board, upon request of the head of office of the government
department/agency concerned, to place them under the coverage of the CES provided they comply with the following
criteria:
i.) The position is a career position;
ii.) The position is above division chief level; and,
iii.)The duties and responsibilities of the position require the performance of executive and managerial functions.
All appointments to positions which have not been previously classified as part of the CES would be deemed co-
terminus with the appointing authority. (Emphasis supplied)
Therefore, considering that petitioner is an appointee of then President Arroyo whose term ended on 30 June 2010,
petitioner’s term of office was also deemed terminated upon the assumption of President Aquino.
Likewise, it is inconsequential that petitioner was allegedly replaced by another non-CESO eligible. In a quo warranto
proceeding, the person suing must show that he has a clear right to the office allegedly held unlawfully by another.
Absent a showing of that right, the lack of qualification or eligibility of the supposed usurper is immaterial.41
All the foregoing considered, the petition merits an outright dismissal for disregarding the hierarchy of courts and
petitioner’s lack of cause of action against respondent for failure to sufficiently show that he has undisturbed rights to
the position of AGMO of the MMDA.
WHEREFORE, premises considered, the Petition is DENIED.
SO ORDERED.
G.R No. 168999 April 30, 2008
RAUL A. DAZA, in his capacity as Governor of Northern Samar, petitioner,
vs.
RONAN P. LUGO, respondent.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari1 of the Decision of the Court of Appeals promulgated on December 20, 2004,
reversing and setting aside Resolution No. 030006 of the Civil Service Commission (CSC) dated January 7, 2003
and reinstating the Order2 dated January 8, 2002 of the CSC Regional Officer.
The facts are as follows:
Records show that former Governor Madeleine P. Mendoza-Ong of Northern Samar issued an appointment dated
March 7, 2001 in favor of respondent Ronan P. Lugo as Sanitation Inspector I under permanent status. The
appointment was approved on March 20, 2001 by the CSC Provincial Field Office of Catarman, Northern Samar.
On August 10, 2001, petitioner Raul A. Daza, the newly elected Governor of Northern Samar, issued Memorandum
No. 352-01 directing the Department Heads to evaluate the performance of probationary employees (including
respondent) under their respective supervisions to determine whether they were qualified to acquire permanent
status. The Memorandum reads:
PGO MEMORANDUM NO. 352-01
TO : All Concerned Office/Department Heads/OICs
SUBJECT : Evaluation of concerned staff under probationary status
Please be reminded that there are a number of employees under your immediate supervision who are under
probationary status.
The probationary status of these employees will end on different dates in September/October 2001, per
attached list.
CSC rule provides that "all such persons must serve a probationary period of six (6) months following
their original appointment and shall undergo a thorough character investigation in order to acquire
permanent civil service status. A probationer may be dropped from the service for unsatisfactory
conduct or want of capacity any time before the expiration of the probationary period.
In this connection, as immediate supervisor, you are directed to evaluate those concerned employees using
our performance evaluation rating system and to submit a report to the undersigned on or before the end
of August 2001. Attached with the report is/are the Performance Evaluation Report/s, stating among others,
whether or not these employees are qualified to acquire permanent status.3
On September 5, 2001, petitioner issued a Memorandum informing respondent that his probationary service was
terminated due to his unsatisfactory conduct. The Memorandum reads:
 Pursuant to my authority under Rule VII, Section 2, CSC Omnibus Rules Implementing Book V of Executive
Order No. 292 (the Administrative Code of 1987), I hereby terminate your probationary service for
unsatisfactory conduct effective at the close of office hours on September 6, 2001.4
Respondent appealed petitioner's termination order to the CSC, Regional Office VIII (CSCRO VIII).
In an Order dated January 8, 2002, the CSC Regional Officer found that the termination of respondent was not in
order and pronounced, thus:
WHEREFORE, foregoing premises considered, the Termination Order (Memorandum dated September 5,
2001) issued by Governor Raul Daza to Ronan Lugo is hereby declared NOT IN ORDER, for being in
violation of CSC Memorandum Circular No. 2, series of 1987 and CSC Memorandum Circular No. 42, series
of 1989. Accordingly, Ronan Lugo is hereby ordered to be reinstated immediately to his previous post as
Sanitary Inspector I of Gamay Rural Health Unit, Gamay, Northern Samar, with payment of back salaries and
other monetary benefits.5
Petitioner's motion for reconsideration was denied for lack of merit. Thereafter, petitioner appealed to the CSC.
In Resolution No. 030006 dated January 7, 2003, the CSC ruled in favor of petitioner, thus:
WHEREFORE, the appeal of Governor Raul A. Daza is hereby granted. Accordingly, CSCRO VIII Order Nos.
010136 dated January 8, 2002 and 010160 dated March 4, 2002, respectively, are hereby reversed. Thus, the
termination of services of Ronan P. Lugo for unsatisfactory conduct is found to be in order.6
Respondent filed a petition for review before the Court of Appeals (CA).
In the Decision promulgated on December 20, 2004, the CA reinstated the Order of the CSC Regional Officer. The
dispositive portion of the Decision reads:
WHEREFORE, the assailed Resolution No. 030006, dated January 7, 2003, issued by the public respondent
Civil Service Commission (CSC) is hereby REVERSED AND SET ASIDE and the Order No. 010130, dated
January 8, 2002, issued by the CSC Regional Officer is hereby REINSTATED.7
The CA found that respondent was removed without just cause as his termination for unsatisfactory conduct was
without basis. The CA stated that respondent was terminated due to his failure to submit a Performance Evaluation
Report to his immediate head or to the personnel department in compliance with petitioner's Memorandum No. 352-
01. It pointed out that the Memorandum was not addressed personally to respondent, but to all concerned
"Office/Department Heads/OICs," and, therefore, it was respondent's immediate supervisor who failed to evaluate
and submit respondent's Personal Evaluation Report. The CA held:
. . . [I]t is therefore evident that the finding of unsatisfactory conduct against petitioner (Lugo) is without basis.
Aside from the fact there was no PER submitted by petitioner's immediate head to private respondent that
would support such finding, there were also no other documents that would show that petitioner's
performance as Sanitary Inspector I was inefficient or unsatisfactory. Thus it necessarily follows that the
notice of termination, dated September 5, 2002, served upon petitioner deprived him of due process.
Petitioner was never apprised of any poor or unsatisfactory performance but was instantaneously dismissed,
and worse, without any basis.
Petitioner's motion for reconsideration was denied by the CA in its Resolution promulgated on July 18, 2005.
Hence, this petition.
The main issue in this case is whether or not respondent's services were terminated without just cause.
Petitioner alleges that the CA erred in ruling that respondent was denied due process in the termination of his
services and in applying Miranda v. Carreon8 to this case.
Petitioner contends that the CA erred in stating that it was respondent's immediate supervisor who failed to evaluate
and submit respondent's Performance Evaluation Report. Petitioner asserts that based on former Governor
Madeleine P. Mendoza-Ong's office order on the Revised Performance Evaluation System of the provincial
government, it is required that each employee prepare the prescribed Performance Evaluation Form (PEF-1) and set
his/her performance standards together with his/her targets, and that at the end of the evaluation, the supervisor and
the employee meet to discuss the latter's accomplishments and they both give their ratings in the prescribed form
and settle/discuss differences, if there are any.
Petitioner argues that the prescribed form (PEF-1) shows that the employee, apart from his supervisor, also rates
himself; hence, respondent should have known that he was required to submit his Performance Evaluation Report
through his immediate supervisor, which he failed to do. Petitioner added that his memorandum to respondent's
supervisor was a reminder that he did not even have to, and respondent frustrated the performance rating process
by not submitting his Performance Evaluation Report, which was vital to the determination of the latter's worthiness
to continue in the service.
The Court is not persuaded by petitioner's arguments.
The Constitution provides that "[N]o officer or employee of the civil service shall be removed or suspended except for
cause provided by law."9 Sec. 26, par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987
states:
All such persons (appointees who meet all the requirements of the position) must serve a probationary period
of six months following their original appointment and shall undergo a thorough character investigation in
order to acquire permanent civil service status. A probationer may be dropped from the service for
unsatisfactory conduct or want of capacity any time before the expiration of the probationary
period; Provided, That such action is appealable to the Commission.
Thus, the services of respondent as a probationary employee may only be terminated for a just cause, that is,
unsatisfactory conduct or want of capacity.
In this case, petitioner's Memorandum No. 352-01 directed to "[a]ll Concerned Office/Department Heads/OICs" on
the subject of "evaluation of concerned staff under probationary status" clearly states: ". . . [A]s immediate
supervisor, you are directed to evaluate those concerned [probationary] employees using our performance
evaluation rating system and to submit a report to the undersigned on or before the end of August 2001."
Hence, the CA correctly stated:
[It is] crystal clear that the above-quoted memorandum [No. 352-01] did not in any manner direct all
employees under probationary status, including petitioner, to submit their own Performance Evaluation
Report. It would also be absurd for these employees to evaluate their own selves. Thus, if these employees,
including petitioner, failed to submit a Performance Evaluation Report to their immediate supervisors, the
same cannot be taken against them. Evidently, it was [Lugo's] immediate supervisor who failed to evaluate
and submit [Lugo's] Performance Evaluation Report as required by the subject memorandum. On this point is
the CSC Regional Officer's findings and conclusion, which We take leave to quote with approval, to wit -
"If indeed the manifestations of xxx Gov. Daza that the immediate supervisor of xxx Lugo failed to
submit the required Performance Evaluation Report, is true, the statement therefore, that Lugo had
committed 'unsatisfactory conduct' is without basis. For how can one claim unsatisfactory conduct
when there was no submitted report detailing the same, which would serve as basis for such finding."10
Even if respondent is allowed to rate himself in the Performance Evaluation Form, it is the supervisor's rating that is
controlling because, indeed, it would be absurd for a probationary employee to rate himself. The duty to evaluate the
performance of such employee belongs to the concerned department head who has supervision over him. Thus,
petitioner issued Memorandum No. 352-01 for department heads to evaluate their respective probationary
employees "using our performance evaluation rating system and to submit a report to the undersigned on or before
the end of August 2001." Petitioner, therefore, erred in insisting that it was respondent's duty to submit respondent's
Performance Evaluation Report and that respondent frustrated the performance rating process by not submitting the
said Report, because it was only proper that the Performance Evaluation Report be submitted by respondent's
supervisor to petitioner as required by petitioner's Memorandum.
Further, the CA found that there were no other documents presented to show that respondent's termination based on
unsatisfactory conduct was justified. It stated thus:
. . . Civil Service Rules on probationary period for permanent appointment require "a notice of termination of
service within ten (10) days immediately after it was proven that they have demonstrated unsatisfactory
conduct or want of capacity during the probationary period. Such notice shall state, among others, the
reasons for such termination and shall be supported by at least two of the following:
a) Performance Evaluation Report
b) Report of immediate supervisor (rater) on work related critical and unusual incidents on
unsatisfactory conduct, or
c) Other valid documents to support the notice.
The notice of termination sent by private respondent governor, however, is bereft of even a substantial
compliance of the aforecited Civil Service Rules. Thus Annex "B" (Notice of Termination) issued was not
supported by any document and obviously lack the proof of unsatisfactory conduct before the Board or
Committee (Performance Evaluation and Review Committee) created for the purpose.11
It is evident, therefore, that there was no basis for the termination of respondent's services on the ground of
unsatisfactory conduct since the Performance Evaluation Report on respondent was not submitted by respondent's
supervisor to petitioner, and there were no other documents presented to show that respondent was guilty of
unsatisfactory conduct.
Petitioner also contends that the CA erred in applying Miranda v. Carreon.
Miranda v. Carreon involves the termination of services of probationary employees, respondents therein, after a
probationary period of only three months of service instead of six months. The CSC ordered the reinstatement of the
said employees to their former positions with payment of backwages since it was improbable that the office head
could finally determine their performance after a probationary period of only three months. The decision of the CSC
was affirmed by the CA, and upheld by this Court.
Although Miranda v. Carreon is not on all fours with the present case, it does not affect the finding that respondent's
services were terminated without just cause. The reinstatement of respondent to his former position with payment of
backwages and other monetary benefits is thus warranted.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 76028
is AFFIRMED.
No costs.
SO ORDERED.
G.R. No. 170093 April 29, 2009
JOSE PEPITO M. AMORES, M.D., Petitioner,
vs.
CIVIL SERVICE COMMISSION, BOARD OF TRUSTEES OF THE LUNG CENTER OF THE PHILIPPINES, as
represented by Hon. MANUEL M. DAYRIT, and FERNANDO A. MELENDRES, M.D., Respondents.
DECISION
PERALTA, J.:
In this petition for review under Rule 45 of the Rules of Court, petitioner Jose Pepito M. Amores assails the
Decision1 of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, as well as its
Resolution2dated September 20, 2005 which denied reconsideration. The assailed Decision affirmed the October 14,
2003 Resolution3 of the Civil Service Commission which, in turn, ordered petitioner’s separation from service as
Deputy Director for Hospital Support Services at the Lung Center of the Philippines on account of his lack of the
necessary civil service eligibility.
Well established are the facts of the case.
Petitioner Jose Pepito M. Amores was the Deputy Director for Hospital Support Services at the Lung Center of the
Philippines (LCP). His civil service career began in 1982 when he was initially engaged at the LCP as a resident
physician.4 In the course of his service, he had been promoted to the position of Medical Specialist,5 then to
Department Manager,6 and finally to Deputy Director. Dr. Calixto Zaldivar was then the Executive Director of the LCP
and when he retired from service in 1999, petitioner was designated as officer-in-charge of the LCP by the
Department of Health (DOH) Secretary Alberto Romualdez, Jr.7
Petitioner had taken charge of the LCP in the interim that the DOH selection board was in the process of selecting a
new executive director. In the meantime, Dr. Fernando Melendres (Melendres), one of the respondents in this case,
was appointed by then President Joseph Estrada as Executive Director of the LCP. Melendres was holding the office
of the Deputy Director for Medical Support Services before his appointment as Executive Director, and although
petitioner claims that he was not challenging Melendres’ right to the office, he nevertheless believed that he himself
was the rightful person to be appointed as executive director inasmuch as he had top-billed the evaluation results of
the DOH Selection Board, with Melendres tailing behind in second place.8
It seems that the controversy started when petitioner and the other doctors and rank-and-file employees at the LCP
drafted a manifesto9 which supposedly ventilated their collective dismay and demoralization at Melendres’
appointment and leadership, and at some of his "unjustified and questionable acts" as Executive Director of the LCP.
In a nutshell, the said manifesto boldly exposed the alleged anomalous circumstances surrounding Melendres’
appointment; the reassignment of some of the members of the LCP personnel which amounted to demotion in their
rank and status; the anomalies in the procurement of property and supplies; his abusive conduct in publicly accusing
some of the doctors of having caused the fire that gutted the center in May 1998; in accusing Zaldivar of having
entered into anomalous contracts and negotiations with the DPWH relative to certain projects; and in practicing
favoritism and nepotism. The tenor of the manifesto even went as far as to be deeply personal as it likewise
questioned Melendres’ fitness to act as executive director on the ground of his previous brush with substance abuse
and the fact that he could no longer keep his marriage from failing.10
The seriousness of these allegations led the DOH to create a Fact-finding Committee to conduct an
investigation.11But at the proceedings before the said Committee, Melendres filed charges of dishonesty and double
compensation against petitioner alleging that the latter had been engaging in the private practice of medicine within
the LCP’s premises during official hours.12 At the close of the investigation, the Fact-finding Committee issued a
report declaring Melendres guilty of the charges against him.13 As for petitioner, the Committee absolved him of the
charge of receiving double compensation, but nevertheless found him guilty of having committed dishonesty by
engaging in the private practice of his profession during the hours that he should be engaging in public service in
violation of the Civil Service Law.141avvphil.net
Petitioner was caught by surprise when, on August 27, 2002, he received a letter from the LCP Board of Trustees
informing him of his separation from service as Deputy Director effective September 30, 2002.15 To the said letter
was attached a copy of the Board’s Resolution16 dated August 23, 2002, principally directing petitioner’s termination
from service after consultation with the Career Executive Service Board (CES Board).17 Petitioner brought an appeal
from the resolution to the Civil Service Commission (CSC).18
Resolving the appeal, the CSC declared that the LCP Board of Trustees had properly and validly separated
petitioner from his post as Deputy Director. In its Resolution No. 031050,19 the CSC declined to pass upon the
charge of dishonesty on the ground of pre-maturity as the issue had not yet been finally determined in a proper
proceeding and the Board had not yet in fact made a definite finding of guilt from which petitioner might as a matter
of course appeal.20 However, it pointed out that petitioner’s separation from service was anchored on his lack of a
CES eligibility which is required for the position of deputy director and, as such, he enjoyed no security in his
tenure.21
Petitioner lodged an Appeal22 with the Court of Appeals. However, it was dismissed and CSC Resolution No. 031050
was affirmed.23
This present petition for review imputes error to the Court of Appeals. First, in missing the fact that petitioner had
been denied due process when his separation from office was ordered on a ground not raised before the DOH Fact-
finding Committee24 and, second, in failing to appreciate the fact that his rights to equal protection had likewise been
violated inasmuch as he was similarly situated with other department managers in the LCP who had no CES
eligibility but who, however, had not been separated from service.25 He theorizes that his right to security of tenure
had been breached and that he was entitled to remain as deputy director because his promotion to the said position
supposedly issued by Zaldivar — which was a recognition of his competence — was permanent in character.26
The LCP, the CSC and the DOH, all represented by the Office of the Solicitor General, and Melendres, are one in
asserting that there can be no question as to the validity of petitioner’s removal from office for the basic fact that he
enjoyed no security of tenure on account of his lack of eligibility. In his Comment27 on the petition, Melendres
capitalizes on the fact that the LCP Board of Trustees arrived at the resolution to separate petitioner from service
upon consultation with the CES Board and the CSC; thus, concludes Melendres, it can only be surmised that the
cause for the removal of petitioner from office is actually his lack of eligibility and not his commission of dishonesty.
The LCP, for its part, is more to the point. It posits that petitioner’s separation from office did not result from an
administrative disciplinary action, but rather from his failure to qualify for the office of Deputy Director on account of
lack of eligibility. For their part, the CSC and the DOH characterizes petitioner as a third-level appointee who, again,
must be in possession of the corresponding third-level eligibility; but since petitioner has none, then he enjoys no
security of tenure and may thus be removed at a moment’s notice even without cause.
There is merit in the arguments of respondents.
What at the outset weighs heavily on petitioner’s case is the fact that the position of Deputy Director for Hospital
Support Services at the LCP belongs to the career executive service appointments to which by law require that the
appointees possess the corresponding CES eligibility. Petitioner, however, does not profess that at any time he was
holding the said position he was able to acquire the required eligibility therefor by taking the CES examinations and,
subsequently, conferred such eligibility upon passing the said examinations. In fact, no slightest suggestion can be
derived from the records of this case which would tend to show that in his entire tenure at the LCP he, at any given
point, had been conferred a CES eligibility. It is thus as much surprising as it is absurd why petitioner, despite the
limitations in his qualifications known to him, would insist that he had served as Deputy Director at the LCP in a
permanent capacity.
We begin with the precept, firmly established by law and jurisprudence, that a permanent appointment in the civil
service is issued to a person who has met the requirements of the position to which the appointment is made in
accordance with law and the rules issued pursuant thereto.28 An appointment is permanent where the appointee
meets all the requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed, and it is temporary where the appointee meets all the requirements for the position except only the
appropriate civil service eligibility.29
Under Section 730 of the Civil Service Law,31 positions in the civil service are classified into open career positions,
closed career positions and positions in the career service. In turn, positions in the career service are tiered in three
levels as follows:
SECTION 8. Classes of Positions in the Career Service. - (1) Classes of positions in the career service appointment
to which requires examinations which shall be grouped into three major levels as follows:
(a) The first level shall include the clerical, trades, crafts and custodial service positions which involve non-
professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four
years of collegiate studies;
(b) The second level shall include professional, technical and scientific positions which involve professional,
technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college
work up to the Division Chief level; and
(c) The third level shall cover positions in the Career Executive Service.
With particular reference to positions in the career executive service (CES), the requisite civil service eligibility is
acquired upon passing the CES examinations administered by the CES Board and the subsequent conferment of
such eligibility upon passing the examinations.32 Once a person acquires eligibility, he either earns the status of a
permanent appointee to the CES position to which he has previously been appointed, or he becomes qualified for a
permanent appointment to that position provided only that he also possesses all the other qualifications for the
position.33 Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment
in the career executive service a permanent one. Petitioner does not possess such eligibility, however, it cannot be
said that his appointment to the position was permanent.
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the
government34 in the absence of appropriate eligibles and when there is necessity in the interest of public service to
fill vacancies in the government.35 But in all such cases, the appointment is at best merely temporary36 as it is said to
be conditioned on the subsequent obtention of the required CES eligibility.37 This rule, according to De Leon v. Court
of Appeals,38 Dimayuga v. Benedicto,39 Caringal v. Philippine Charity Sweepstakes Office,40 and Achacoso v.
Macaraig,41 is invariable even though the given appointment may have been designated as permanent by the
appointing authority.
We now come to address the issue of whether petitioner’s separation from service violated his right to security of
tenure.
Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon
passing the CES examinations administered by the CES Board. It is that which entitles the examinee to conferment
of CES eligibility and the inclusion of his name in the roster of CES eligibles.42 Under the rules and regulations
promulgated by the CES Board, conferment of the CES eligibility is done by the CES Board through a formal board
resolution after an evaluation has been done of the examinee’s performance in the four stages of the CES eligibility
examinations. Upon conferment of CES eligibility and compliance with the other requirements prescribed by the
Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is
made by the President upon the Board’s recommendation. It is this process which completes the official’s
membership in the CES and confers on him security of tenure in the CES.43 Petitioner does not seem to have gone
through this definitive process.
At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility
and therefore had not held the subject office in a permanent capacity, there could not have been any violation of
petitioner’s supposed right to security of tenure inasmuch as he had never been in possession of the said right at
least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against
his separation from office even if it be for no cause and at a moment’s notice.44 Not even his own self-serving claim
that he was competent to continue serving as Deputy Director may actually and legally give even the slightest
semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any
case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on
the appointee inasmuch as the security of tenure of employees in the career executive service, except first and
second-level employees, pertains only to rank and not to the office or position to which they may be appointed.45
Anent the other issues raised in this petition, we find the same to be merely petitioner’s last-ditch attempts, futile as
they are, to remain in office. Suffice it to say that no further good may be served in needlessly expounding on them.
All told, we reiterate the long-standing rule that the mere fact that a particular position belongs to the career service
does not automatically confer security of tenure on its occupant. Such right will have to depend on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be
appointed to it in an acting capacity in the absence of appropriate eligibles.46
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 80971, dated
September 23, 2004, affirming Resolution No. 031050 of the Civil Service Commission, dated October 14, 2003,
is AFFIRMED.
SO ORDERED.
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED
VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in
his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his
Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA)
93352(Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to
exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all officials and employees
of the BIR and the BOC with at least six months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the
targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection
falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and
(6) submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax
reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the
officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only
in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the
constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees
of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for
classification or distinction as to why such a system should not apply to officials and employees of all other
government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it
lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials
may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does
not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the
President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable
target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the
doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature
as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the
exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution
of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed
mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared
objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct
from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard
that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the
legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to
overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication.
And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct
adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the
Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere
enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and concrete
legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake
in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The
grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And
where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice,
and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of
the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs
of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily
obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR
and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere
conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty
hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335
based on petitioners’ baseless supposition is an affront to the wisdom not only of the legislature that passed it but
also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the
concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and
loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as
well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws
against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in
detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of
their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or
mercenary activity" or the product of the irregular performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials, examiners,
and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts
of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties
shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of
such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished.19 When things or persons are different in fact or
circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court
declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same. The
equal protection clause does not forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is directed or by the territory within
which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea
of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply equally to each member of the class. This Court has
held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. Neither is it necessary
that the classification be made with mathematical nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis
supplied)
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation
or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the
revenue-generation capability and collection of the BIR and the BOC.23 Since the subject of the law is the revenue-
generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law
should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they
have the common distinct primary function of generating revenues for the national government through the collection
of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be headed by and
subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by
the President upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to the
management and control of the Commissioner of Customs, who shall be appointed by the President upon the
recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the
following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports
of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent functions – taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient
standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by
the delegate.26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map
out the boundaries of the delegate’s authority and prevent the delegation from running riot.27 To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the legislative policy and identify the conditions
under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a
system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue
targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to as the Fund,
is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective
revenue targets of the year, as determined by the Development Budget and Coordinating Committee
(DBCC), in the following percentages:
Excess of Collection of the Percent (%) of the Excess Collection to
Excess the Revenue Targets Accrue to the Fund
30% or below – 15%
 More than 30% – 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the
BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF)
submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of
the agencies’ revenue targets as allocated among its revenue districts in the case of the BIR, and the
collection districts in the case of the BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the
BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to
Congress.30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the
scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions under which
officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the
service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the following powers and
functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees whose revenue
collection falls short of the target by at least seven and a half percent (7.5%), with due consideration
of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated
under this Act, subject to civil service laws, rules and regulations and compliance with substantive and
procedural due process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as
has no historical record of collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period
under consideration unless the transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from economic difficulties brought
about by natural calamities or force majeure or economic causes as may be determined by the Board,
termination shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That
such decision shall be immediately executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be without prejudice to the
application of other relevant laws on accountability of public officers and employees, such as the
Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and
Corrupt Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The
guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other
than those provided by law and only after due process is accorded the employee.31 In the case of RA 9335, it lays
down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with
due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency
and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32 The
action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and
procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity,"
"public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public
interest.
Separation Of Powers
Section 12 of RA 9335 provides:
 SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint Congressional
Oversight Committee composed of seven Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two
senators representing the minority. The Members from the House of Representatives shall be appointed by
the Speaker with at least two members representing the minority. After the Oversight Committee will have
approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore
cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22,
2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its
alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and
academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of
the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly,
oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether agencies are properly administered, (c)
to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative
authority, and (d) to assess executive conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress
has delegated an enormous amount of legislative authority to the executive branch and the administrative
agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform
their functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to administrative
operations. Its primary purpose is to determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may request information and report from the
other branches of government. It can give recommendations or pass resolutions for consideration of
the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that are readily
available, congressional investigation involves a more intense digging of facts. The power of Congress
to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI,
xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional scrutiny
and investigation involve inquiry into past executive branch actions in order to influence future executive
branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-
making authority, and permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with the
force of law. These provisions require the President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such
legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of
a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime.
Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power between the
legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to
the executive branch or to independent agencies while retaining the option to cancel particular exercise of
such power without having to pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law
and practice. It suffices to say that the complexities of modern government have often led Congress-
whether by actual or perceived necessity- to legislate by declaring broad policy goals and general
statutory standards, leaving the choice of policy options to the discretion of an executive officer.
Congress articulates legislative aims, but leaves their implementation to the judgment of parties who
may or may not have participated in or agreed with the development of those aims. Consequently,
absent safeguards, in many instances the reverse of our constitutional scheme could be effected:
Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to
enact new legislation or to change existing law. But without some means of overseeing post enactment
activities of the executive branch, Congress would be unable to determine whether its policies have
been implemented in accordance with legislative intent and thus whether legislative intervention is
appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the executive
prerogatives. They urge that any post-enactment measures undertaken by the legislative branch
should be limited to scrutiny and investigation; any measure beyond that would undermine the
separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an
impermissible evasion of the President’s veto authority and intrusion into the powers vested in the executive
or judicial branches of government. Proponents counter that legislative veto enhances separation of powers
as it prevents the executive branch and independent agencies from accumulating too much power. They
submit that reporting requirements and congressional committee investigations allow Congress to scrutinize
only the exercise of delegated law-making authority. They do not allow Congress to review executive
proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions
of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the executive branch pursuant to a
delegation of authority by Congress. They further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority,
they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over
the evolution and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of
legislative veto provisions. The case arose from the order of the immigration judge suspending the
deportation of Chadha pursuant to § 244(c)(1) of the Immigration and Nationality Act. The United States
House of Representatives passed a resolution vetoing the suspension pursuant to § 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular
deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings
to implement the House order and the alien was ordered deported. The Board of Immigration Appeals
dismissed the alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The
United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to
order the alien’s deportation and that § 244(c)(2) violated the constitutional doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied away from
the issue of separation of powers and instead held that the provision violates the presentment clause and
bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
 Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade
Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes
containing legislative veto provisions although some of these provisions required the approval of both Houses
of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions
were not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature
and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA
9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was
tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and
approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system
of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power
in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution
imposes two basic and related constraints on Congress.37 It may not vest itself, any of its committees or its members
with either executive or judicial power.38 And, when it exercises its legislative power, it must follow the "single, finely
wrought and exhaustively considered, procedures" specified under the Constitution,39 including the procedure for
enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative
vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains
a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in
the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a
congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law
initially delegated broad powers.43It radically changes the design or structure of the Constitution’s diagram of power
as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility
for making necessary managerial decisions in conformity with those standards.46 In the latter case, the law must be
complete in all its essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is left for
the executive branch or the concerned administrative agency when it formulates rules and regulations implementing
the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual
operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect.49 Such rules and regulations partake of the
nature of a statute50and are just as binding as if they have been written in the statute itself. As such, they have the
force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality
in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not
pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of
powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power
unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition
for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the people by the provision
on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress which consists of
two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of
both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of
either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and
a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the
President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall
likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a
law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the
members voting for or against shall be entered in its Journal. The President shall communicate his veto of any
bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative
act with the force of law, it cannot take effect without such presentment even if approved by both chambers of
Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54Second, it must be presented to and approved by the President.55 As summarized by Justice Isagani
Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for some measures
that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by the Senate
President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature
or purpose, they may all be consolidated into one bill under common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its
entirety, scrutinized, debated upon and amended when desired. The second reading is the most important
stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are distributed at least
three days before the third reading. On the third reading, the members merely register their votes and explain
them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three
readings. If there are differences between the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the
House of Representatives will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law after the
required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be complete in all its essential terms and conditions when it
leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes
effective because it is only upon effectivity of the statute that legal rights and obligations become available to those
entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process
clause,61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is only
upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute
the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or
vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to
play any role in the implementation or enforcement of the law violates the principle of separation of powers and is
thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows
Congress or its members to overturn any directive or ruling made by the members of the executive branch charged
with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be
similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is
brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other
provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent court, the
remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and
effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is
valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather than
complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid
portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid
statute, which carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a
belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the
parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute
to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision
from the other provisions so that the latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete,
intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and
Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or
implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation66 and became effective 15 days thereafter.67 Until and unless the contrary is
shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight
Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of
RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect.
SO ORDERED.
G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), represented by its National President
(BOCEA National Executive Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the Department of Finance, HON. NAPOLEON L.
MORALES, in his capacity as Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her
capacity as Commissioner of the Bureau of Internal Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with prayer for injunctive relief/s under Rule 65 of the 1997
Rules of Civil Procedure, as amended, to declare Republic Act (R.A.) No. 9335,2 otherwise known as the Attrition Act
of 2005, and its Implementing Rules and Regulations3 (IRR) unconstitutional, and the implementation thereof be
enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into law R.A. No. 9335 which took effect on
February 11, 2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It covers all officials
and employees of the BIR and the BOC with at least six months of service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the
targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection
falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and
(6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA [No.] 9335, to be approved by a Joint Congressional Oversight Committee
created for such purpose.5
The Joint Congressional Oversight Committee approved the assailed IRR on May 22, 2006. Subsequently, the IRR
was published on May 30, 2006 in two newspapers of general circulation, the Philippine Star and the Manila
Standard, and became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No. 9335 are tainted with constitutional infirmities in
violation of the fundamental rights of its members, petitioner Bureau of Customs Employees Association (BOCEA),
an association of rank-and-file employees of the Bureau of Customs (BOC), duly registered with the Department of
Labor and Employment (DOLE) and the Civil Service Commission (CSC), and represented by its National President,
Mr. Romulo A. Pagulayan (Pagulayan), directly filed the present petition before this Court against respondents
Margarito B. Teves, in his capacity as Secretary of the Department of Finance (DOF), Commissioner Napoleon L.
Morales (Commissioner Morales), in his capacity as BOC Commissioner, and Lilian B. Hefti, in her capacity as
Commissioner of the Bureau of Internal Revenue (BIR). In its petition, BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate of R.A. No. 9335 and its IRR, and in
order to comply with the stringent deadlines thereof, started to disseminate Collection District Performance
Contracts7 (Performance Contracts) for the lower ranking officials and rank-and-file employees to sign. The
Performance Contract pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing Rules and Regulations (IRR) of the
Attrition Act of 2005, that provides for the setting of criteria and procedures for removing from the service Officials
and Employees whose revenue collection fall short of the target in accordance with Section 7 of Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing premises, parties unto this Agreement hereby agree
and so agreed to perform the following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection Target and further accepts/commits to
meet the said target under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby undertakes and binds
himself/herself that in the event the revenue collection falls short of the target with due consideration of all
relevant factors affecting the level of collection as provided in the rules and regulations promulgated under the
Act and its IRR, he/she will voluntarily submit to the provisions of Sec. 25 (b) of the IRR and Sec. 7 of the Act;
and
b.) That he/she will cascade and/or allocate to respective Appraisers/Examiners or Employees under his/her
section the said Revenue Collection Target and require them to execute a Performance Contract, and direct
them to accept their individual target. The Performance Contract executed by the respective
Examiners/Appraisers/Employees shall be submitted to the Office of the Commissioner through the LAIC on
or before March 31, 2008.
xxxx 8

BOCEA opined that the revenue target was impossible to meet due to the Government’s own policies on reduced
tariff rates and tax breaks to big businesses, the occurrence of natural calamities and because of other economic
factors. BOCEA claimed that some BOC employees were coerced and forced to sign the Performance Contract. The
majority of them, however, did not sign. In particular, officers of BOCEA were summoned and required to sign the
Performance Contracts but they also refused. To ease the brewing tension, BOCEA claimed that its officers sent
letters, and sought several dialogues with BOC officials but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy pressure on the District Collectors, Chiefs of
Formal Entry Divisions, Principal Customs Appraisers and Principal Customs Examiners of the BOC during
command conferences to make them sign their Performance Contracts. Likewise, BOC Deputy Commissioner
Reynaldo Umali (Deputy Commissioner Umali) individually spoke to said personnel to convince them to sign said
contracts. Said personnel were threatened that if they do not sign their respective Performance Contracts, they
would face possible reassignment, reshuffling, or worse, be placed on floating status. Thus, all the District Collectors,
except a certain Atty. Carlos So of the Collection District III of the Ninoy Aquino International Airport (NAIA), signed
the Performance Contracts.
BOCEA further claimed that Pagulayan was constantly harassed and threatened with lawsuits. Pagulayan
approached Deputy Commissioner Umali to ask the BOC officials to stop all forms of harassment, but the latter
merely said that he would look into the matter. On February 5, 2008, BOCEA through counsel wrote the Revenue
Performance Evaluation Board (Board) to desist from implementing R.A. No. 9335 and its IRR and from requiring
rank-and-file employees of the BOC and BIR to sign Performance Contracts.9 In his letter-reply10 dated February 12,
2008, Deputy Commissioner Umali denied having coerced any BOC employee to sign a Performance Contract. He
also defended the BOC, invoking its mandate of merely implementing the law. Finally, Pagulayan and BOCEA’s
counsel, on separate occasions, requested for a certified true copy of the Performance Contract from Deputy
Commissioner Umali but the latter failed to furnish them a copy.11
This petition was filed directly with this Court on March 3, 2008. BOCEA asserted that in view of the
unconstitutionality of R.A. No. 9335 and its IRR, and their adverse effects on the constitutional rights of BOC officials
and employees, direct resort to this Court is justified. BOCEA argued, among others, that its members and other
BOC employees are in great danger of losing their jobs should they fail to meet the required quota provided under
the law, in clear violation of their constitutional right to security of tenure, and at their and their respective families’
prejudice.
In their Comment,12 respondents, through the Office of the Solicitor General (OSG), countered that R.A. No. 9335
and its IRR do not violate the right to due process and right to security of tenure of BIR and BOC employees. The
OSG stressed that the guarantee of security of tenure under the 1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a reasonable and valid ground for the dismissal of an employee
which is germane to the purpose of the law. Likewise, R.A. No. 9335 and its IRR provided that an employee may
only be separated from the service upon compliance with substantive and procedural due process. The OSG added
that R.A. No. 9335 and its IRR must enjoy the presumption of constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that are unreasonable to achieve its stated
objectives; that the law is unduly oppressive of BIR and BOC employees as it shifts the extreme burden upon their
shoulders when the Government itself has adopted measures that make collection difficult such as reduced tariff
rates to almost zero percent and tax exemption of big businesses; and that the law is discriminatory of BIR and BOC
employees. BOCEA manifested that only the high-ranking officials of the BOC benefited largely from the reward
system under R.A. No. 9335 despite the fact that they were not the ones directly toiling to collect revenue. Moreover,
despite the BOCEA’s numerous requests,14 BOC continually refused to provide BOCEA the Expenditure Plan on
how such reward was distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in Abakada Guro Party List v. Purisima, BOCEA
filed a Motion to Consolidate15 the present case with Abakada on April 16, 2008. However, pending action on said
motion, the Court rendered its decision in Abakada on August 14, 2008. Thus, the consolidation of this case with
Abakada was rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief Justice Renato C. Corona, declared Section 1217of
R.A. No. 9335 creating a Joint Congressional Oversight Committee to approve the IRR as unconstitutional and
violative of the principle of separation of powers. However, the constitutionality of the remaining provisions of R.A.
No. 9335 was upheld pursuant to Section 1318 of R.A. No. 9335. The Court also held that until the contrary is shown,
the IRR of R.A. No. 9335 is presumed valid and effective even without the approval of the Joint Congressional
Oversight Committee.19
Notwithstanding our ruling in Abakada, both parties complied with our Resolution20 dated February 10, 2009,
requiring them to submit their respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE PROCESS OF THE
COVERED BIR AND BOC OFFICIALS AND EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND
EMPLOYEES TO THE EQUAL PROTECTION OF THE LAWS[;]
III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS
VIOLATE THE RIGHT TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS AND EMPLOYEES AS
ENSHRINED UNDER SECTION 2 (3), ARTICLE IX (B) OF THE CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE
REVENUE PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE PRINCIPLE OF SEPARATION OF
POWERS ENSHRINED IN THE CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF ATTAINDER AND HENCE[,] UNCONSTITUTIONAL
BECAUSE IT INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A PARTICULAR GROUP OR
CLASS OF OFFICIALS AND EMPLOYEES WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due course to its petition, events unfolded showing the
patent unconstitutionality of R.A. No. 9335. It narrated that during the first year of the implementation of R.A. No.
9335, BOC employees exerted commendable efforts to attain their revenue target of ₱196 billion which they
surpassed by as much as ₱2 billion for that year alone. However, this was attained only because oil companies
made advance tax payments to BOC. Moreover, BOC employees were given their "reward" for surpassing said
target only in 2008, the distribution of which they described as unjust, unfair, dubious and fraudulent because only
top officials of BOC got the huge sum of reward while the employees, who did the hard task of collecting, received a
mere pittance of around ₱8,500.00. In the same manner, the Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave out to the employees a measly sum of ₱8,500.00 while the top
level officials partook of millions of the excess collections. BOCEA relies on a piece of information revealed by a
newspaper showing the list of BOC officials who apparently earned huge amounts of money by way of reward.22 It
claims that the recipients thereof included lawyers, support personnel and other employees, including a dentist, who
performed no collection functions at all. These alleged anomalous selection, distribution and allocation of rewards
was due to the failure of R.A. No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few cases of attrition for the Fiscal Year 2007 by subjecting
five BOC officials from the Port of Manila to attrition despite the fact that the Port of Manila substantially complied
with the provisions of R.A. No. 9335. It is thus submitted that the selection of these officials for attrition without proper
investigation was nothing less than arbitrary. Further, the legislative and executive departments’ promulgation of
issuances and the Government’s accession to regional trade agreements have caused a significant diminution of the
tariff rates, thus, decreasing over-all collection. These unrealistic settings of revenue targets seriously affect BIR and
BOC employees tasked with the burden of collection, and worse, subjected them to attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to due process because the
termination of employees who had not attained their revenue targets for the year is peremptory and done
without any form of hearing to allow said employees to ventilate their side. Moreover, R.A. No. 9335 and its
IRR do not comply with the requirements under CSC rules and regulations as the dismissal in this case is
immediately executory. Such immediately executory nature of the Board’s decision negates the remedies
available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to equal protection of the law because
R.A. No. 9335 and its IRR unduly discriminates against BIR and BOC employees as compared to employees
of other revenue generating government agencies like the Philippine Amusement and Gaming Corporation,
Department of Transportation and Communication, the Air Transportation Office, the Land Transportation
Office, and the Philippine Charity Sweepstakes Office, among others, which are not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to security of tenure because R.A. No.
9335 and its IRR effectively removed remedies provided in the ordinary course of administrative procedure
afforded to government employees. The law likewise created another ground for dismissal, i.e., non-
attainment of revenue collection target, which is not provided under CSC rules and which is, by its nature,
unpredictable and therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress granted to the Revenue
Performance Evaluation Board (Board) the unbridled discretion of formulating the criteria for termination, the
manner of allocating targets, the distribution of rewards and the determination of relevant factors affecting the
targets of collection, which is tantamount to undue delegation of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a particular group or class of officials
and employees without trial. This is evident from the fact that the law confers upon the Board the power to
impose the penalty of removal upon employees who do not meet their revenue targets; that the same is
without the benefit of hearing; and that the removal from service is immediately executory. Lastly, it disregards
the presumption of regularity in the performance of the official functions of a public officer.25
On the other hand, respondents through the OSG stress that except for Section 12 of R.A. No. 9335, R.A. No. 9335
and its IRR are constitutional, as per our ruling in Abakada. Nevertheless, the OSG argues that the classification of
BIR and BOC employees as public officers under R.A. No. 9335 is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is essentially in the form of taxes, which is the lifeblood of the State,
while the revenue produced by other agencies is merely incidental or secondary to their governmental functions; that
in view of their mandate, and for purposes of tax collection, the BIR and BOC are sui generis; that R.A. No. 9335
complies with the "completeness" and "sufficient standard" tests for the permissive delegation of legislative power to
the Board; that the Board exercises its delegated power consistent with the policy laid down in the law, that is, to
optimize the revenue generation capability and collection of the BIR and the BOC; that parameters were set in order
that the Board may identify the officials and employees subject to attrition, and the proper procedure for their removal
in case they fail to meet the targets set in the Performance Contract were provided; and that the rights of BIR and
BOC employees to due process of law and security of tenure are duly accorded by R.A. No. 9335. The OSG likewise
maintains that there was no encroachment of judicial power in the enactment of R.A. No. 9335 amounting to a bill of
attainder since R.A. No. 9335 and its IRR merely defined the offense and provided for the penalty that may be
imposed. Finally, the OSG reiterates that the separation from the service of any BIR or BOC employee under R.A.
No. 9335 and its IRR shall be done only upon due consideration of all relevant factors affecting the level of collection,
subject to Civil Service laws, rules and regulations, and in compliance with substantive and procedural due process.
The OSG opines that the Performance Contract, far from violating the BIR and BOC employees’ right to due process,
actually serves as a notice of the revenue target they have to meet and the possible consequences of failing to meet
the same. More, there is nothing in the law which prevents the aggrieved party from appealing the unfavorable
decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s members to: (a) equal protection of laws,
(b) security of tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA has locus standi. BOCEA impugns the
constitutionality of R.A. No. 9335 and its IRR because its members, who are rank-and-file employees of the BOC,
are actually covered by the law and its IRR. BOCEA’s members have a personal and substantial interest in the case,
such that they have sustained or will sustain, direct injury as a result of the enforcement of R.A. No. 9335 and its
IRR.27
However, we find no merit in the petition and perforce dismiss the same.
It must be noted that this is not the first time the constitutionality of R.A. No. 9335 and its IRR are being challenged.
The Court already settled the majority of the same issues raised by BOCEA in our decision in Abakada, which
attained finality on September 17, 2008. As such, our ruling therein is worthy of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally allocated sphere.28 Necessarily
imbedded in this doctrine is the principle of non-delegation of powers, as expressed in the Latin maxim potestas
delegata non delegari potest, which means "what has been delegated, cannot be delegated." This doctrine is based
on the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the
delegate through the instrumentality of his own judgment and not through the intervening mind of another.29However,
this principle of non-delegation of powers admits of numerous exceptions,30 one of which is the delegation of
legislative power to various specialized administrative agencies like the Board in this case.
The rationale for the aforementioned exception was clearly explained in our ruling in Gerochi v. Department of
Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of legislative power to various specialized
administrative agencies is allowed as an exception to this principle. Given the volume and variety of interactions in
today’s society, it is doubtful if the legislature can promulgate laws that will deal adequately with and respond
promptly to the minutiae of everyday life. Hence, the need to delegate to administrative bodies — the principal
agencies tasked to execute laws in their specialized fields — the authority to promulgate rules and regulations to
implement a given statute and effectuate its policies. All that is required for the valid exercise of this power of
subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements
are denominated as the completeness test and the sufficient standard test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient
standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by
the delegate. It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map
out the boundaries of the delegate’s authority and prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the legislative policy and identify the conditions
under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of
rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance
Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their
revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the delegated power to the President to fix revenue
targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund, hereinafter referred to as the Fund, is
hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the
following percentages:
Excess of Collection [Over] Percent (%) of the Excess
the Revenue Targets Collection to Accrue to the
Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus
20% of the remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue
collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given
fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to
Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as
allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the
BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to
Congress. Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the
scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions under which
officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the
service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency shall have the following powers and
functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection
falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors
affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil
service laws, rules and regulations and compliance with substantive and procedural due process: Provided, That the
following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, and has
no historical record of collection performance that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under
consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance
of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or
customs officials or employees has suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such
decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an
official or employee from service under this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public
Officers and Employees and the Anti-Graft and Corrupt Practices Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient standards: "public interest", "justice and equity",
"public convenience and welfare" and "simplicity, economy and welfare". In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public
interest.33
We could not but deduce that the completeness test and the sufficient standard test were fully satisfied by R.A. No.
9335, as evident from the aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 534 of R.A. No. 9335 also
provides for the incentives due to District Collection Offices. While it is apparent that the last paragraph of Section 5
provides that "[t]he allocation, distribution and release of the district reward shall likewise be prescribed by the rules
and regulations of the Revenue Performance and Evaluation Board," Section 7 (a)35 of R.A. No. 9335 clearly
mandates and sets the parameters for the Board by providing that such rules and guidelines for the allocation,
distribution and release of the fund shall be in accordance with Sections 4 and 5 of R.A. No. 9335. In sum, the Court
finds that R.A. No. 9335, read and appreciated in its entirety, is complete in all its essential terms and conditions, and
that it contains sufficient standards as to negate BOCEA’s supposition of undue delegation of legislative power to the
Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly situated should be treated in a similar manner,
both as to rights conferred and responsibilities imposed. The purpose of the equal protection clause is to secure
every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the state’s duly constituted authorities. In other
words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective.361awphil
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation
or rational basis and not arbitrary. With respect to RA [No.] 9335, its expressed public policy is the optimization of the
revenue-generation capability and collection of the BIR and the BOC. Since the subject of the law is the revenue-
generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law
should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they
have the common distinct primary function of generating revenues for the national government through the collection
of taxes, customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal Revenue, which shall be headed by and subject
to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President
upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall be headed and subject to the management
and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of
the Secretary [of the DOF] and hereinafter referred to as Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports
of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent functions — taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under RA [No.] 9335 fully satisfy the demands of equal protection.37
As it was imperatively correlated to the issue on equal protection, the issues on the security of tenure of affected BIR
and BOC officials and employees and their entitlement to due process were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials and employees of the BIR and the
BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for
causes other than those provided by law and only after due process is accorded the employee. In the case of RA
[No.] 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at
least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous
to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil
service laws. The action for removal is also subject to civil service laws, rules and regulations and compliance with
substantive and procedural due process.38
In addition, the essence of due process is simply an opportunity to be heard, or as applied to administrative
proceedings, a fair and reasonable opportunity to explain one’s side.39 BOCEA’s apprehension of deprivation of due
process finds its answer in Section 7 (b) and (c) of R.A. No. 9335.40 The concerned BIR or BOC official or employee
is not simply given a target revenue collection and capriciously left without any quarter. R.A. No. 9335 and its IRR
clearly give due consideration to all relevant factors41 that may affect the level of collection. In the same manner,
exemptions42 were set, contravening BOCEA’s claim that its members may be removed for unattained target
collection even due to causes which are beyond their control. Moreover, an employee’s right to be heard is not at all
prevented and his right to appeal is not deprived of him.43 In fine, a BIR or BOC official or employee in this case
cannot be arbitrarily removed from the service without according him his constitutional right to due process. No less
than R.A. No. 9335 in accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court proceeds to resolve the last, but new
issue raised by BOCEA, that is, whether R.A. No. 9335 is a bill of attainder proscribed under Section 22,44 Article III
of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of attainder is a legislative act which inflicts
punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and
the lack of judicial trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City,46 Justice Florentino P. Feliciano traces the
roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few centuries back, Parliament would at times
enact bills or statutes which declared certain persons attainted and their blood corrupted so that it lost all heritable
quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]). In more modern terms, a bill of attainder is essentially a
usurpation of judicial power by a legislative body. It envisages and effects the imposition of a penalty — the
deprivation of life or liberty or property — not by the ordinary processes of judicial trial, but by legislative fiat. While
cast in the form of special legislation, a bill of attainder (or bill of pains and penalties, if it prescribed a penalty other
than death) is in intent and effect a penal judgment visited upon an identified person or group of persons (and not
upon the general community) without a prior charge or demand, without notice and hearing, without an opportunity to
defend, without any of the civilized forms and safeguards of the judicial process as we know it (People v. Ferrer, 48
SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed.
1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder wielded as
a means of legislative oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to inflict punishment without a
judicial trial. R.A. No. 9335 merely lays down the grounds for the termination of a BIR or BOC official or employee
and provides for the consequences thereof. The democratic processes are still followed and the constitutional rights
of the concerned employee are amply protected.
A final note.
We find that BOCEA’s petition is replete with allegations of defects and anomalies in allocation, distribution and
receipt of rewards. While BOCEA intimates that it intends to curb graft and corruption in the BOC in particular and in
the government in general which is nothing but noble, these intentions do not actually pertain to the constitutionality
of R.A. No. 9335 and its IRR, but rather in the faithful implementation thereof. R.A. No. 9335 itself does not tolerate
these pernicious acts of graft and corruption.48 As the Court is not a trier of facts, the investigation on the veracity of,
and the proper action on these anomalies are in the hands of the Executive branch. Correlatively, the wisdom for the
enactment of this law remains within the domain of the Legislative branch. We merely interpret the law as it is. The
Court has no discretion to give statutes a meaning detached from the manifest intendment and language
thereof.49 Just like any other law, R.A. No. 9335 has in its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the Constitution and not one that is doubtful,
speculative, or argumentative.50 We have so declared in Abakada, and we now reiterate that R.A. No. 9335 and its
IRR are constitutional.
WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is DISMISSED.
No costs.
SO ORDERED.
G.R. No. 172027 July 29, 2010
GONZALO S. GO, JR., Petitioner,
vs.
COURT OF APPEALS and OFFICE OF THE PRESIDENT, Respondents.
DECISION
VELASCO, JR., J.:
Assailed in this Petition for Certiorari1 under Rule 65 are the Resolutions dated August 17, 20052 and January 31,
20063 of the Court of Appeals (CA) in CA-G.R. SP No. 90665.
The facts are undisputed.
Petitioner Gonzalo S. Go, Jr. (Go) was appointed in 1980 as Hearing Officer III of the Board of Transportation (BOT),
then the government’s land transportation franchising and regulating agency, with a salary rate of PhP 16,860 per
annum.4 On June 19, 1987, Executive Order No. (EO) 2025 was issued creating, within the Department of
Transportation and Communications (DOTC), the Land Transportation Franchising and Regulatory Board (LTFRB) to
replace the BOT. The issuance placed the LTFRB under the administrative control and supervision of the DOTC
Secretary.6
On February 1, 1990, the DOTC Secretary extended Go a promotional appointment as Chief Hearing Officer (Chief,
Legal Division), with a salary rate of PhP 151,800 per annum.7 The Civil Service Commission (CSC) later approved
this permanent appointment.8 In her Certification9 dated October 27, 2005, LTFRB Administrative Division Chief
Cynthia G. Angulo stated that the promotion was to the position of Attorney VI, Salary Grade (SG)-26, obviously
following budgetary circulars allocating SG-26 to division chief positions.
The instant controversy started when the Department of Budget and Management (DBM), by letter10 of March 13,
1991, informed the then DOTC Secretary of the erroneous classification in the Position Allocation List (PAL) of the
DBM of two positions in his department, one in the LTFRB and, the other, in the Civil Aeronautics Board (CAB). The
error, according to the DBM, stemmed from the fact that division chief positions in quasi-judicial or regulatory
agencies, whose decisions are immediately appealable to the department secretary instead of to the court, are
entitled only to Attorney V, SG-25 allocation. Pertinently, the DBM letter reads:
Under existing allocation criteria division Chief positions in x x x department level agencies performing quasi-
judicial/regulatory functions where decisions are appealable to higher courts shall be allocated to Attorney VI, SG-26.
Division chief positions in quasi-judicial/regulatory agencies lower than departments such as the Civil Aeronautics
Board (CAB) and the Land Transportation Franchising and Regulatory Board (LTFRB) where decisions are
appealable to the Secretary of the DOTC and then the Office of the President shall, however be allocated to Attorney
V, SG-25.11 (Emphasis supplied.)
After an exchange of communications between the DBM and the DOTC, the corresponding changes in position
classification with all its wage implications were implemented, effective as of April 8, 1991.12
Unable to accept this new development where his position was allocated the rank of Attorney V, SG-25, Go wrote the
DBM to question the "summary demotion or downgrading [of his salary grade]" from SG-26 to SG-25. In his protest-
letter,13 Go excepted from the main reason proferred by the DBM that the decisions or rulings of the LTFRB are only
appealable to the DOTC Secretary under Sec. 6 of EO 202 and not to the CA. As Go argued, the aforecited proviso
cannot prevail over Sec. 9 (3) of Batas Pambansa Blg. (BP) 129, or the Judiciary Reorganization Act of 1980, under
which appeals from decisions of quasi-judicial bodies are to be made to the CA.
Ruling of the DBM Secretary & Office of the President
On September 14, 1998, the DBM Secretary denied Go’s protest, holding that decisions, orders or resolutions of the
LTFRB are appealable to the DOTC Secretary.14 The DBM reminded Go that based on the department’s standards
and criteria formulated pursuant to Presidential Decree No. (PD) 985 and Republic Act No. (RA) 6758,15 the division
chief of bureau-level agencies, like the LTFRB, is allocable to Attorney V, SG-25.
In time, Go sought reconsideration, with the following additional argument: LTFRB is similarly situated as another
bureau-level agency under DOTC, the CAB, which is listed under Rule 43 of the Rules of Court as among the quasi-
judicial agencies whose decisions or resolutions are directly appealable to the CA.
Following the denial of his motion for reconsideration, Go appealed to the Office of the President (OP).
On January 7, 2005, in OP Case No. 99-8880, the OP, agreeing with the ruling of the DBM and the premises holding
it together, rendered a Decision dismissing Go’s appeal.
The OP would subsequently deny Gonzalo’s motion for reconsideration.
Undaunted, Go interposed before the CA a petition for review under Rule 43, his recourse docketed as CA-G.R. SP
No. 90665.
 Ruling of the Court of Appeals
By Resolution dated August 17, 2005, the appellate court dismissed the petition on the following procedural grounds:
(a) Go resorted to the wrong mode of appeal, Rule 43 being available only to assail the decision of a quasi-judicial
agency issued in the exercise of its quasi-judicial functions, as DBM is not a quasi-judicial body; (b) his petition
violated Sec. 6 (a) of Rule 43; and (c) his counsel violated Bar Matter Nos. 287 and 1132.
Through the equally assailed January 31, 2006 Resolution, the CA rejected Go’s motion for reconsideration.
Hence, the instant petition for certiorari.
The Issues
I
DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED
OUTRIGHT THE PETITION ON THE GROUND OF ALLEGED WRONG MODE OF APPEAL THROUGH
RULE 43 OF THE RULES OF COURT –
– BY CLAIMING THAT WHEN RESPONDENT OP, WHOSE DECISION IN THE EXERCISE OF ITS QUASI-
JUDICIAL POWERS IS APPEALABLE TO THE [CA] UNDER RULE 43, AFFIRMED THE DECISION OF THE
DBM, IT WAS NOT IN THE EXERCISE OF ITS QUASI-JUDICIAL POWERS BUT IN THE EXERCISE OF
ADMINISTRATIVE SUPERVISION AND CONTROL OVER THE DBM AND THEREFORE APPEAL UNDER
RULE 43 CANNOT BE AVAILED OF, — FOR UNWARRANTEDLY READING WHAT IS NOT IN THE LAW
AND NOT BORNE OUT BY THE FACTS OF THE CASE?
II
DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED
OUTRIGHT THE PETITION ON THE GROUND OF FAILURE TO IMPLEAD A PRIVATE RESPONDENT –
– BY CLAIMING THAT "NO PRIVATE RESPONDENT IS IMPLEADED IN THE PETITION WHILE
IMPLEADING THE [DBM] AND THE [OP], IN VIOLATION OF SECTION 6 (A) RULE 43 OF THE RULES OF
COURT, — WHEN SAID PROVISION COULD NOT BE CONSTRUED AS TO HAVE REQUIRED
IMPLEADING A PRIVATE RESPONDENT IN THE PETITION, IF THERE WAS NONE AT ALL?
III
DID THE [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE
PETITION ON THE GROUND OF FAILURE OF PETITIONER’S COUNSEL TO INDICATE CURRENT IBP
AND PTR RECEIPT NOS. AND DATES OF ISSUE –
– BY CLAIMING THAT "PETITIONER’S COUNSEL HAS NOT INDICATED HIS CURRENT IBP AND PTR
RECEIPT NUMBERS AND DATES OF ISSUE" — EVEN AS IN THE MOTION FOR RECONSIDERATION,
PETITIONER GO EXPLAINED THAT IT WAS AN HONEST INADVERTENCE AND HE EVEN ATTACHED
THERETO COPIES OF COPIES THEMSELVES OF THE CURRENT IBP AND PTR RECEIPTS?
IV
DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT DISMISSED OUTRIGHT THE PETITION ON TECHNICAL AND FLIMSY
GROUNDS –
– THUS SHIRKING FROM ITS BOUNDEN TASK TO ADDRESS A VERY PRESSINIG LEGAL ISSUE OF
WHETHER EO 202 SEC. 6, A MERE EXECUTIVE ORDER, DIRECTING APPEAL TO THE DOTC
SECRETARY SHOULD PREVAIL OVER A LAW, BP BLG. 129, SEC, 9 (C) AND RULE 43, SEC. 1
DIRECTING APPEAL TO THE COURT OF APPEALS?16
The Court’s Ruling
There is merit in the petition.
The core issues may be reduced into two, to wit: first, the propriety of the dismissal by the CA of Go’s Rule 43
petition for review on the stated procedural grounds; and second, the validity of the reallocation of rank resulting in
the downgrading of position and diminution of salary.
Procedural Issue: Proper Mode of Appeal
As the CA held, Rule 43 is unavailing to Go, the remedy therein being proper only to seek a review of decisions of
quasi-judicial agencies in the exercise of their quasi-judicial powers. It added that the primarily assailed action is that
of the DBM, which is not a quasi-judicial body. In turn, thus, the affirmatory OP decision was made in the exercise of
its administrative supervision and control over the DBM, not in the exercise of its quasi-judicial powers.
The appellate court is correct in ruling that the remedy availed of by Go is improper but not for the reason it proffered.
Both Go and the appellate court overlooked the fact that the instant case involves personnel action in the
government, i.e., Go is questioning the reallocation and demotion directed by the DBM which resulted in the
diminution of his benefits. Thus, the proper remedy available to Go is to question the DBM denial of his protest
before the Civil Service Commission (CSC) which has exclusive jurisdiction over cases involving personnel actions,
and not before the OP. This was our ruling involving personnel actions in Mantala v. Salvador,17 cited in Corsiga v.
Defensor18 and as reiterated in Olanda v. Bugayong.19 In turn, the resolution of the CSC may be elevated to the CA
under Rule 43 and, finally, before this Court. Consequently, Go availed himself of the wrong remedy when he went
directly to the CA under Rule 43 without repairing first to the CSC.
Ordinarily, a dismissal on the ground that the action taken or petition filed is not the proper remedy under the
circumstances dispenses with the need to address the other issues raised in the case. But this is not a hard and fast
rule, more so when the dismissal triggered by the pursuit of a wrong course of action does not go into the merits of
the case. Where such technical dismissal otherwise leads to inequitable results, the appropriate recourse is to
resolve the issue concerned on the merits or resort to the principles of equity. This is as it should be as rules of
procedure ought not operate at all times in a strict, technical sense, adopted as they were to help secure, not
override substantial justice.20 In clearly meritorious cases, the higher demands of substantial justice must transcend
rigid observance of procedural rules.
Overlooking lapses on procedure on the part of litigants in the interest of strict justice or equity and the full
adjudication of the merits of his cause or appeal are, in our jurisdiction, matters of judicial policy. And cases
materially similar to the one at bench should invite the Court’s attention to the merits if only to obviate the resulting
inequity arising from the outright denial of the recourse. Here, the dismissal of the instant petition would be a virtual
affirmance, on technicalities, of the DBM’s assailed action, however iniquitous it may be.
Bearing these postulates in mind, the Court, in the greater interest of justice, hereby disregards the procedural
lapses obtaining in this case and shall proceed to resolve Go’s petition on its substantial merits without further delay.
The fact that Go’s protest was rejected more than a decade ago, and considering that only legal questions are
presented in this petition, warrants the immediate exercise by the Court of its jurisdiction.
Core Issue: Summary Reallocation Improper
Contrary to the DBM’s posture, Go maintains that the LTFRB decisions are appealable to the CA pursuant to Sec. 9
(3) of BP 129 and Rule 43 of the Rules of Court. He argues that the grievance mechanism set forth in Sec. 6 of EO
202 cannot prevail over the appeal provisos of a statute and remedial law. Go thus asserts that the summary
reallocation of his position and the corresponding salary grade reassignment, i.e., from Attorney VI, SG-26 to
Attorney V, SG-25, resulting in his demotion and the downgrading of the classification of his position, are without
legal basis.
EO 202 governs appeals from LTFRB Rulings
We understand where Go was coming from since the DBM letter to the DOTC Secretary implementing the summary
reallocation of the classification of the position of LTFRB Chief of the Legal Division gave the following to justify the
reclassification: the forum, i.e, the department secretary or the CA, where the appeal of a decision of division chief or
head of the quasi-judicial agency may be taken. The DBM, joined by the OP, held that LTFRB decisions are
appealable to the DOTC Secretary pursuant to Sec. 6 of EO 202. Therefrom, one may go to the OP before appealing
to the CA.
On this count, we agree with the DBM and the OP. Sec. 6 of EO 202 clearly provides:
Sec. 6. Decision of the Board [LTFRB]; Appeals therefrom and/or Review thereof. The Board, in the exercise of its
powers and functions, shall sit and render its decisions en banc. x x x
The decision, order or resolution of the Board shall be appealable to the [DOTC] Secretary within thirty (30) days
from receipt of the decision: Provided, That the Secretary may motu proprio review any decision or action of the
Board before the same becomes final. (Emphasis supplied.)
As may be deduced from the above provisos, the DOTC, within the period fixed therein, may, on appeal or motu
proprio, review the LTFRB’s rulings. While not expressly stated in Sec. 6 of EO 202, the DOTC Secretary’s decision
may, in turn, be further appealed to the OP. The "plain meaning" or verba legis rule dictates that if the statute is
clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation.21 Thus, the
LTFRB rulings are not directly appealable to the CA under Rule 43.
Go further contends that EO 202, a mere executive issuance, cannot be made to prevail over BP 129, Sec. 9 (3),
which provides for the appeal of the decisions and rulings of quasi-judicial agencies to the CA. Moreover, he points
to the 1997 revision of the Rules of Civil Procedure which now provides under Rule 43 the appeals before the CA of
decisions and rulings of quasi-judicial agencies.
Go is mistaken for the ensuing reasons: First, EO 202 was issued on June 19, 1987 by then President Corazon C.
Aquino pursuant to her legislative powers under the then revolutionary government. The legislative power of
President Aquino ended on July 27, 1987 when the first Congress under the 1987 Constitution convened.22 For all
intents and purposes, therefore, EO 202 has the force and effect of any legislation passed by Congress.
Second, EO 202, creating the LTRFB, is a special law, thus enjoying primacy over a conflicting general, anterior law,
such as BP 129. In Vinzons-Chato v. Fortune Tobacco Corporation,23 the Court elucidated on this issue in this wise:
A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read
together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts,
one of which is special and particular and the other general which, if standing alone, would include the same matter
and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more
clearly than that of a general statute and must not be taken as intended to affect the more particular and specific
provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning
at all. (Emphasis supplied.)
Given the foregoing premises, BP 129 must, on matters of appeals from LTFRB rulings, yield to the provision of EO
202, the subsequent special law being regarded as an exception to, or a qualification of, the prior general act.24
DBM has authority to allocate classifications of different positions in the Government service
There is no dispute that the DBM is vested the authority to enforce and implement PD 985, as amended, which
mandates the establishment of a unified compensation and position classification system for the government. Sec.
17 (a) of PD 985, as amended by Sec. 14 (a) of RA 6758, and the original Sec. 17 (b) of PD 985 pertinently provide,
thus:
Section 17. Powers and Functions. – The Budget Commission (now DBM), principally through the OCPC (now
CPCB, Compensation and Position Classification Board) shall, in addition to those provided under other Sections of
this Decree, have the following powers and functions:
a. Administer the compensation and position classification system established herein and revise it as necessary;
b. Define each grade in the salary or wage schedule which shall be used as a guide in placing positions to their
appropriate classes and grades;
Moreover, Secs. 2, 7 and 9 of RA 6758 respectively provide:
Sec. 2. Statement of Policy. — It is hereby declared the policy of the State to provide equal pay for substantially
equal work and to base differences in pay upon substantive differences in duties and responsibilities, and
qualification requirements of the positions. x x x For this purpose, the x x x (DBM) is hereby directed to establish
and administer a unified Compensation and Position Classification System, hereinafter referred to as the
System, as provided for in [PD] No. 985, as amended, that shall be applied for all government entities, as
mandated by the Constitution.
xxxx
Sec. 7. Salary Schedule. — The [DBM] is hereby directed to implement the Salary Schedule prescribed below:
xxxx
The [DBM] is hereby authorized to determine the officials who are of equivalent rank to the foregoing
Officials, where applicable, and may be assigned the same Salary Grades based on the following guidelines:
xxxx
Sec. 9. Salary Grade Assignments for Other Positions. — For positions below the Officials mentioned under Section
8 hereof and their equivalent, whether in the National Government, local government units, government-owned or
controlled corporations or financial institutions, the [DBM] is hereby directed to prepare the Index of
Occupational Services to be guided by the Benchmark Position Schedule prescribed hereunder and the
following factors: (1) the education and experience required x x x; (2) the nature and complexity of the work to be
performed; (3) the kind of supervision received; (4) mental and/or physical strain required x x x; (5) nature and extent
of internal and external relationships; (6) kind of supervision exercised; (7) decision-making responsibility x x x.
(Emphasis supplied.)
And while the Office of Compensation and Position Classification, now Compensation and Position Classification
Board (CPCB), is vested, under Sec. 825 of PD 985, the sole authority to allocate the classification of positions, its
determinations relative to the allocations require the approval of the DBM Secretary to be binding.
This brings us to the validity of the reallocation.
Summary reallocation illegal
Go argues that the summary reallocation of the classification of his position as Chief, LTFRB Legal Division to a
lower grade substantially reduced his salary and other benefits, veritably depriving him of property, hence, illegal.
We agree with Go on this count. The summary reallocation of his position to a lower degree resulting in the
corresponding downgrading of his salary infringed the policy of non-diminution of pay which the Court recognized
and applied in Philippine Ports Authority v. Commission on Audit,26 as well as in the subsequent sister
cases27involving benefits of government employees. Running through the gamut of these cases is the holding that
the affected government employees shall continue to receive benefits they were enjoying as incumbents upon the
effectivity of RA 6758.
Relevant to the critical issue at hand is Sec. 15 (b) of PD 985 which, as amended by Sec. 13 (a) of RA 6758,
pertinently reads:
SEC. 13. Pay Adjustments.- x x x
(b) Pay Reduction — If an employee is moved from a higher to a lower class, he shall not suffer a reduction in
salary: Provided, That such movement is not the result of a disciplinary action or voluntary demotion. (Emphasis
supplied.)
Prior to its amendment, Sec. 15 (b) of PD 985 reads:
(b) Pay Reduction — If an employee is moved from a higher to a lower class, he shall not suffer a reduction in
salary except where his current salary is higher than the maximum step of the new class in which case he
shall be paid the maximum: Provided, That such movement is not the result of a disciplinary action. (Emphasis
supplied.)
As may be noted, the legislature dropped from the original proviso on pay reduction the clause: "except where his
current salary is higher than the maximum step of the new class in which case he shall be paid the
maximum." The deletion doubtless indicates the legislative intent of maintaining, in line with the non-diminution
principle, the level or grade of salary enjoyed by an incumbent before the reallocation to a lower grade or
classification is effected. It must be made absolutely clear at this juncture that Go received his position classification
of Attorney VI and assigned SG-26 upon his promotional appointment as Chief, LTFRB Legal Division on February 1,
1990, or after the effectivity of RA 6758. Following the clear mandate of the aforequoted Sec. 15(b) of PD 985, as
amended, Go must not suffer a reduction in his salary even if there was a reallocation of his position to a lower
grade.
Lest it be overlooked, the transition provisos of RA 6758 provide additional justification for Go’s entitlement to
continue receiving the compensation and emoluments previously granted him upon his promotion as Chief, LTFRB
Legal Division. Go, as an incumbent of said position before the assailed reallocation was effected ostensibly through
the implementation of RA 6758, the statute’s transition provisions should apply mutatis mutandis to him. The
pertinent provisions are Secs. 12 and 17 of RA 6758, to wit:
Section 12. Consolidation of Allowances and Compensation.—All allowances, except for representation and
transportation allowances, clothing and laundry allowances; x x x and such other additional compensation not
otherwise specified herein as may determined by the [DBM], shall be deemed included in the standardized salary
rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by
incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized.
xxxx
Section 17. Salaries of Incumbents.—Incumbents of positions presently receiving salaries and additional
compensation/fringe benefits including those absorbed from local government units and other emoluments, the
aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such excess
compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the
amount of salary adjustment that the incumbent shall receive in the future.
Pursuant to the principle of non-diminution and consistent with the rule on the prospective application of laws in the
spirit of justice and fair play,28 the above provisions are, indeed, meant to protect incumbents who are receiving
salaries and allowances beyond what may be allowable under RA 6758. It may be that Go was not the occupant of
his present position as of July 1, 1989. Still the positions in the plantilla of the LTFRB were properly subjected to the
standardization under RA 6758. In fact, the matter of excess of salary and benefits in the application of RA 6758 and
PD 985 is a non-issue. What is at issue is the reallocation of the position from Attorney VI, SG-26 to Attorney V, SG-
25. Obviously, the question of who was sitting as Chief of the Legal Division as of July 1, 1989 is of no moment. Of
particular significance is the issue of whether the reallocation to a lower degree is proper given that Go was already
enjoying the salary and emoluments as Attorney VI, SG-26 upon his appointment on February 1, 1990 as Chief,
LTFRB Legal Division.
While the DBM is statutorily vested with the authority to reclassify or allocate positions to their appropriate classes,
with the concomitant authority to formulate allocating policies and criteria for bureau-level agencies, like the LTFRB,
the investiture could not have plausibly included unchecked discretion to implement a reallocation system offensive
to the due process guarantee.
It is recognized that one’s employment is a property right within the purview of the due process clause.1avvphi1 So it
was that in Crespo v. Provincial Board of Nueva Ecija29 the Court categorically held that "one’s employment,
profession, trade or calling is a ‘property right,’ and the wrongful interference therewith is an actionable wrong. The
right is considered to be property within the protection of a constitutional guaranty of due process of law."30
Per our count, from his promotional appointment as Chief, LTFRB Legal Division to the time (April 8, 1991) the
summary reallocation was implemented, Go had occupied the position and enjoyed the corresponding salary and
emoluments therefor for one year, two months and eight days. In this length of time, Go’s entitlement to the benefits
appurtenant to the position has well nigh ripened into a vested right.
As the records show, Go, as Attorney VI, SG-26, was receiving an annual salary of PhP 151,800. Consequent to the
enforcement of the summary reallocation of his position to Attorney V, SG-25, this was effectively reduced, reckoned
from April 8, 1991, to PhP 136,620,31 or a salary reduction of PhP 15,180 a year. These figures of course have yet to
factor in supervening pay adjustments occurring through the years.
A vested right is one whose existence, effectivity and extent do not depend upon events foreign to the will of the
holder, or to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent
upon a contingency.32 The term "vested right" expresses the concept of present fixed interest which, in right reason
and natural justice, should be protected against arbitrary State action, or an innately just and imperative right which
enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny.33
To be vested, a right must have become a title—legal or equitable—to the present or future enjoyment of property.34
To us, Go has established a clear, equitable vested right to the emoluments of his position as Attorney VI, SG-26. He
continues to occupy—at least up to April 11, 2006 when he filed this petition—the position of Chief, LTFRB Legal
Division. His title to Attorney VI, SG-26 is without question, having been legally appointed to the position on February
1, 1990. And being an incumbent to that position, he has, at the very least, an equitable right to receive the
corresponding salary and emoluments attached thereto. The summary demotion to a lower salary grade, with the
corresponding decrease in salary and emoluments after he has occupied his current rank and position, goes against
his right to continue enjoying the benefits accorded the position and which his predecessors must have been
receiving. His right thereto has ripened into a vested right, of which he could be deprived only by due process of law,
but which we believe he was denied through the summary reallocation. With the view we take of this case, Go was
neither apprised nor given the opportunity to contest the reallocation before its summary implementation.
Lest this Decision is taken out of context, the Court wishes to emphasize that it is not its intention to disturb the
reallocation of the position Chief, LTFRB Legal Division to Attorney V, SG-25. Accordingly, it behooves the DBM and
the LTFRB to enforce the classification of position of Attorney V, SG-25 to those who will succeed Go in the said
position.
It bears to stress nonetheless that this pro hac vice case disposition is predicated on the following key
considerations: (1) Go was duly appointed to an office previously classified as a division chief position with an
Attorney VI, SG 26 assignment; (2) under DBM circulars then obtaining, it would appear that division chief positions
carried a SG-26 classification without the qualification set forth in the DBM’s letter of March 31, 1991. In a real sense,
therefore, the present controversy is attributable to the DBM’s failure to incorporate, at the outset, the necessary
clarificatory qualifications/ distinctions in its position and salary allocation rules/circulars; (3) Go’s receipt for some
time of the salary and other emoluments attached to the position was cut short by the reallocation of the position,
resulting in his demotion and downgrading of salary; and (4) the reallocation was effected by the DBM in a summary
manner.
WHEREFORE, the instant petition is GRANTED. The Resolutions dated August 17, 2005 and January 31, 2006 of
the Court of Appeals in CA-G.R. SP No. 90665 are hereby REVERSED and SET ASIDE. The January 7, 2005
Decision and June 28, 2005 Order of the Office of the President in OP Case No. 99-8880 are likewise REVERSED
and SET ASIDE. Accordingly, the summary reallocation enforced and implemented on April 8, 1991 is declared
NULL and VOID. The Department of Transportation and Communications is hereby ORDERED to reinstate Gonzalo
S. Go, Jr. to the position of Attorney VI, SG-26 as the Chief of the Legal Division of the Land Transportation
Franchising and Regulatory Board, with the corresponding release to him of the differential of all emoluments
reckoned from April 8, 1991.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 175276 May 31, 2011
ISABELO L. GALANG, Petitioner,
vs.
LAND BANK OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175282
LAND BANK OF THE PHILIPPINES, Petitioner,
vs.
ISABELO L. GALANG, Respondent.
DECISION
VILLARAMA, JR., J.:
These are two consolidated petitions for review on certiorari1 filed by Isabelo L. Galang and Land Bank of the
Philippines (Land Bank) to assail the Decision2 dated May 25, 2006 and Resolution3 dated October 25, 2006 of the
Court of Appeals (CA) in CA-G.R. SP No. 91910. The CA had reversed and set aside Resolution Nos. 0408944 and
0512565 of the Civil Service Commission (CSC) denying Galang’s Motion for Issuance of Writ of Execution6 and
motion for reconsideration.
The facts of the case are undisputed.
On June 20, 1988, Isabelo L. Galang, the Branch Manager of Land Bank Baliuag, Bulacan was charged with
Dishonesty, Misconduct, Conduct Prejudicial to the Best Interest of the Service, Gross Neglect of Duty, Violation of
Rules and Regulations, and Receiving for Personal Use a Fee, Gift or Other Valuable Thing in the Course of Official
Duties or in Connection Therewith when such Fee is Given by Any Person in the Hope or Expectation of Receiving a
Favor or Better Treatment than that Accorded Other Persons or Committing Acts Punishable Under the Anti-Graft
Laws. The case was docketed as Administrative Case No. 88-002.7
Allegedly, Galang demanded money from four borrowers of the bank, namely, Ceferino Manahan, Gregorio Modelo,
Sotero Santos and Feliza de Vera, in return for a reduction of interest rates and condonation of penalty charges on
their overdue loans. The complaint further accuses Galang of making unauthorized disbursements for the repair of
the company car. Along with Galang, the borrowers also charged Conrado Ocampo, a Project Analyst in the same
branch, for his alleged participation in soliciting money from them.
On November 3, 1989, the Hearing Officer of Land Bank issued a Joint Resolution dismissing both charges for
insufficiency of evidence. This was later reversed by Land Bank’s General Counsel, Corazon P. Del Rosario, who
recommended Galang and Ocampo’s dismissal to the Board of Directors.
On April 26, 1990, the Board of Directors issued Resolution No. 90-0438 which approved Del Rosario’s
recommendation but modified the penalty to forced resignation with forfeiture of all benefits. Aggrieved, Galang and
Ocampo appealed to the Merit Systems Protection Board (MSPB).
In a Decision9 dated March 8, 1991, the MSPB sustained the penalty imposed upon Galang and Ocampo but found
them liable only for Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service, and
Receiving for Personal Use a Fee, Gift or Other Valuable Thing in the Course of Official Duties or in Connection
Therewith when such Fee is Given by Any Person in the Hope of Receiving a Favor or Better Treatment than that
Accorded Other Persons. The MSPB, however, absolved Galang of the charges of Gross Neglect of Duty and
Violation of Rules and Regulations. Galang and Ocampo filed a motion for reconsideration, which was denied in a
Decision10 dated June 11, 1991.
Before the CSC, Galang and Ocampo’s appeal was dismissed for lack of merit through Resolution No. 93-
100111dated March 12, 1993. Their motion for reconsideration was likewise denied in Resolution No. 93-3812.12
Galang alone filed a petition for certiorari13 with the Supreme Court alleging grave abuse of discretion committed by
the CSC. In a Resolution14 dated June 20, 1995, the Court referred the matter to the CA pursuant to Revised
Administrative Circular No. 1-95.15
On November 21, 1996, the CA rendered a Decision16 in CA-G.R. SP No. 37791 nullifying Resolution Nos. 93-1001
and 93-3812. The appellate court excluded the affidavits of the complainants as inadmissible in evidence for lack of
cross-examination. Without them, it found no substantial evidence to hold Galang administratively liable.
Subsequently, Galang filed a Motion for Clarification and/or Reconsideration17 with a prayer for the CA to order his
reinstatement and the payment of his back wages, bonuses and other fringe benefits reckoned from the date of his
dismissal. Land Bank, likewise, moved for reconsideration.
In a Resolution18 dated September 5, 1997, the CA granted Galang’s motion and directed Land Bank to reinstate him
and to pay him back salaries not exceeding five years. Land Bank received notice of said resolution on September
15, 1997, but filed no appeal.
Consequently, Galang filed a Motion to Effect Entry of Judgment.19 On November 14, 1997, Land Bank filed before
this Court a Petition for Certiorari20 which was docketed as G.R. No. 131186.
In a Resolution21 dated January 17, 2001, this Court dismissed the petition. This Court concluded that Land Bank’s
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, was merely an afterthought
considering that it failed to file a petition for review on certiorari under Rule 45 of said Rule. The bank moved for
reconsideration but was denied. Thus, on August 7, 2001, this Court issued an Entry of Judgment.22
In the meantime, Galang was reinstated in the payroll on August 16, 2001. However, on December 14, 2001, Galang
wrote Land Bank’s President, Margarito Teves, complaining that he has yet to receive Personnel Economic Relief
Allowance (PERA), Representation and Travel Allowance (RATA), Meal Allowance and Rice Subsidy. He claimed
that since this Court found Land Bank’s petition for certiorari to be a mere afterthought, he should have been
reinstated on October 1, 1997 – after the fifteen (15)-day period to appeal the Resolution dated September 5, 1997
had lapsed. Galang also insisted that his back salaries be computed based on the current salary rate prescribed for
his previous position.23
In a letter24 dated February 8, 2002, Land Bank expressed its willingness to pay Galang Meal Allowance and Rice
Subsidy. It, however, refused to include PERA and RATA as part of his back salaries for 1990 to 1995; the former,
because it was authorized to be paid to LBP employees only in 1997 and the latter, because he was unable to
discharge the functions of his office. Land Bank further explained that Galang could not be reinstated, or his back
wages paid from October 1, 1997 since there was yet no final and executory decision of the court then. The bank
maintained that his salaries were computed correctly, based on the prevailing rate for the period when he was unable
to work in accordance with the Court’s ruling in Bangalisan v. Court of Appeals.25
On June 7, 2002, Galang filed a Motion for Clarification26 with this Court to settle the following issues:
9.1 Whether Respondent is entitled to Meal and Rice Allowances, Representation and Travel Allowance and
Housing Allowance, and the basis thereof;
9.2 Whether the payment of Provident Fund is limited to five (5) years only;
9.3 The basis for computing the 5-year backwages;
9.4 Whether Respondent should have been reinstated since October 1, 1997.27
On July 24, 2002, this Court issued a Resolution28 which noted without action Galang’s motion for clarification in view
of the Entry of Judgment29 on August 7, 2001.
On May 15, 2003, Galang filed a Motion for Issuance of Writ of Execution30 with the CSC to enforce the November
21, 1996 Decision of the CA in CA-G.R. SP No. 37791, which ordered his reinstatement and the payment of his
backwages for five years.
The Commission denied said motion in Resolution No. 040894 dated August 9, 2004. Galang moved for
reconsideration, but his motion was denied in Resolution No. 05-1256 dated September 13, 2005. The CSC held that
execution will not lie because Land Bank had complied with the appellate court’s decision.
On November 5, 2005, Galang filed a Petition for Review31 under Rule 43 with the CA.
In the assailed Decision dated May 25, 2006, the appellate court granted said petition and declared Galang entitled
to PERA, RATA and other benefits attached to his position. However, it upheld his reinstatement on August 16, 2001
and sustained the computation of his back wages based on the prevailing rate at the time of his dismissal. The
motions for reconsideration respectively filed by Galang and Land Bank were likewise denied by the appellate court
in its Resolution dated October 25, 2006.
Hence, on December 8, 2006, Galang filed a petition for review on certiorari with this Court raising the following
issues:
I.
THE HONORABLE COURT ERRED IN NOT RULING THAT THE COMPUTATION OF PETITIONER’S
BACKWAGES SHOULD BE BASED ON HIS CURRENT SALARY LEVEL; AND
II.
THE HONORABLE COURT ERRED IN NOT RULING THAT PETITIONER IS ENTITLED TO
REINSTATEMENT AS EARLY AS 01 OCTOBER 1997.32
For its part, Land Bank filed a petition for review on certiorari on December 22, 2006 based on the following
assignment of errors:
I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT RULED THAT [PERSONNEL] ECONOMIC RELIEF ALLOWANCE (PERA)
AND REPRESENTATION AND [TRANSPORTATION] ALLOWANCE (RATA) SHOULD BE INCLUDED IN
THE PAYMENT OF RESPONDENT’S BACKWAGES.
II.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAS LIKEWISE COMMITTED GRAVE AND
REVERSIBLE ERROR WHEN IT HELD THAT RESPONDENT GALANG IS STILL ENTITLED TO THE
PAYMENT OF MEAL ALLOWANCE AND RICE SUBSIDY.33
In order to resolve these twin petitions, the Court must address the following questions: (1) When should Galang be
reinstated? (2) What should be the basis of computing his back salaries? and (3) Is he entitled to PERA, RATA, Meal
Allowance and Rice Subsidy?
Citing the case of Cristobal v. Melchor,34 Galang contends that his back wages should be computed based on the
rate of his salary at reinstatement. He argues that since Land Bank availed of the wrong remedy, his reinstatement
should be reckoned from October 1, 1997 or after the reglementary period to appeal had lapsed.
Land Bank, on the other hand, disputes Galang’s demand for PERA and RATA. It reasons that since the five-year
period for which Galang shall receive back salaries is from July 1990 to June 1995, he is not entitled to PERA, a
benefit which employees of the Land Bank started receiving only in 1997. As to RATA, Land Bank maintains that the
nature of such benefit precludes Galang from claiming it since he did not incur expenses for representation and
transportation while he was not allowed to work. Finally, it claims that it had already paid Galang’s Rice Subsidy and
Meal Allowance.
We find the petition partly meritorious.
The Omnibus Rules Implementing Book V of Executive Order No. 29235 and Other Pertinent Civil Service Lawsdefine
reinstatement as the issuance of an appointment to a person who has been previously appointed to a position in the
career service and who has, through no delinquency or misconduct, been separated therefrom, or to the restoration
of one who has been exonerated of the administrative charges filed against him.
In the present case, Galang was absolved of the administrative charges against him in the CA Decision dated
November 21, 1996. Upon motion, the appellate court issued the Resolution dated September 5, 1997, which
ordered his reinstatement and the payment of his back salaries for five years.
It is settled that an illegally terminated civil service employee is entitled to back salaries limited only to a maximum
period of five years, and not full back salaries from his illegal termination up to his reinstatement.36 Hence, in
Galang’s case, he is entitled to back salaries from July 1990 to June 1995. This is not disputed by the parties.
Rather, the uncertainty centers on when he should be reinstated.
The records show that Galang was reinstated in Land Banks’s payroll on August 16, 2001. He argues, however, that
he should be reinstated on October 1, 1997, after the fifteen (15)-day period to appeal the Resolution dated
September 5, 1997 had lapsed.
Galang’s position on the effective date of his reinstatement is correct.
Well-entrenched is that a judgment or order becomes final upon the lapse of the period to appeal, without an appeal
being perfected or a motion for reconsideration being filed.37
In this case, Land Bank received notice of the CA Resolution dated September 5, 1997 on September 15, 1997.
Thus, it had fifteen (15) days from September 15, 1997, or until September 30, 1997 to file an appeal. Yet, Land
Bank did not do so. Instead, it filed a petition for certiorari with this Court on November 14, 1997.
However, an original action for certiorari is an independent action and is neither a continuation nor a part of the trial
resulting in the judgment complained of. It does not interrupt the course of the original action if there was no writ of
injunction, even if in connection with a pending case in a lower court.38 Section 7, Rule 65 on certiorari provides:
SEC. 7. Expediting proceedings; injunctive relief. – The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for
the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against
public respondent from further proceeding in the case. (Emphasis supplied.)
Clearly, the petition for certiorari filed by Land Bank in G.R. No. 131186 did not suspend the running of the
prescriptive period to appeal. Besides, no temporary restraining order or writ of preliminary injunction was issued in
its favor that could effectively toll the running of the prescriptive period.
It is true that there are instances where, even if there is no writ of preliminary injunction or temporary restraining
order issued by a higher court, it would be proper for a lower court or court of origin to suspend its proceedings on
the precept of judicial courtesy. The principle of judicial courtesy, however, remains to be the exception rather than
the rule.39 Unfortunately for Land Bank, this is not a proper case for the operation of the said principle.
Land Bank’s failure to interpose an appeal within fifteen (15) days from its receipt on September 15, 1997 of the
Resolution dated September 5, 1997, rendered the same final and executory on October 1, 1997. Galang’s
reinstatement therefore must be reckoned, not from August 16, 2001 but from October 1, 1997. This entitles him to
receive back wages as well from the date when he should have been reinstated on October 1, 1997 to August 15,
2001, one day before he was actually reinstated.
Concomitant with reinstatement is the payment of back salaries. Section 59(e) of the Uniform Rules on
Administrative Cases in the Civil Service on the effect of exoneration on certain penalties provides that in case the
penalty imposed is dismissal, he shall immediately be reinstated without loss of seniority rights with payment of back
salaries. It was enunciated in Philippine Amusement and Gaming Corporation v. Salas40 that:
When an official or employee was illegally dismissed and his reinstatement has later been ordered, for all legal
purposes he is considered as not having left his office. Therefore, he is entitled to all the rights and privileges that
accrue to him by virtue of the office he held.
In this case, the second issue for resolution pertains to the base figure to be used in computing Galang’s back
salaries.
Galang invokes the 1980 case of Cristobal v. Melchor41 as authority in saying that the computation of his back wages
should be based on his salary at reinstatement. However, we find Galang’s reliance on said case misplaced.
In Cristobal v. Melchor, Jose C. Cristobal was reinstated as an Assistant in the Office of the President, a position
different from his position as Private Secretary I which he held when he was terminated. Upon being reinstated, he
was paid the salary corresponding to that of a Private Secretary I at the rate when he was wrongfully dismissed
fifteen (15) years back. The Court ruled therein that Cristobal must be given a position and compensation
commensurate and comparable to that which he held, taking into account the increases in salary during the fifteen
(15)-year period preceding his reinstatement. To stress this point, the Court fixed his compensation at the rate
prevailing at the time of his reinstatement inclusive of allowances, benefits and increases in salary. Moreover, it
ordered the respondents therein to pay Cristobal the differential between the current rate of the salary, for a position
commensurate to a Private Secretary I, and the old rate from the time he "reported for duty"42 that is, from the time
he was reinstated.
Clearly, what was in issue in Cristobal v. Melchor was the rate of Cristobal’s compensation upon his reinstatement,
not the rate of his back salaries. In fact, he did not dispute the payment of his back salaries for five years computed
at the rate when he was dismissed.43
The controlling rule on the rate at which back salaries shall be paid was laid down by the Court as early as 1977 in
the case of Balquidra v. CFI of Capiz, Branch II.44 In said case, the Court awarded back salaries to the petitioner
therein at the rate last received by him or his "original salary"45 for five years without qualification and deduction. This
means that the illegally dismissed government employee shall be paid back salaries at the rate he was receiving
when he was terminated unqualified by salary increases and without deduction from earnings received elsewhere
during the period of his illegal dismissal. We have invariably held so in Gementiza v. Court of Appeals,46Ginson v.
Municipality of Murcia, et al.,47 Gabriel v. Domingo,48 and Del Castillo v. Civil Service Commission.49 We find no
reason to depart from the said rule in the instant case.
Be that as it may, we cannot apply the foregoing rule in the computation of Galang’s back salaries from October 1,
1997 to August 15, 2001. His back salaries for such period represent recompense for the earnings he failed to
realize because he was belatedly reinstated. Following this Court’s pronouncement in Cristobal v. Melchor, Galang’s
back salaries for October 1, 1997 to August 15, 2001 should be computed at the rate prevailing at the proper date of
his reinstatement on October 1, 1997, inclusive of allowances, benefits and increases in salary prior to reinstatement.
Apart from back salaries, Galang demands payment of RATA, PERA, Meal Allowance and Rice Subsidy from Land
Bank.
Back wages represent the compensation that should have been earned but were not collected because of the unjust
dismissal.50 This includes other monetary benefits51 attached to the employee’s salary following the principle that an
illegally dismissed government employee who is later reinstated is entitled to all the rights and privileges that accrue
to him by virtue of the office he held.
Pertinent to this case, Republic Act (R.A.) No. 6758,52 otherwise known as the Compensation and Position
Classification Act of 1989, was enacted on July 1, 1989 to integrate certain benefits received by government official
and employees into their salaries. Section 12 of said Act provides:
SEC. 12. Consolidation of Allowances and Compensation. - All allowances, except for representation and
transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on
board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed
abroad; and such other additional compensation not otherwise specified herein as may be determined by the
DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional
compensation, whether in cash or in kind, being received by the incumbents only as of July 1, 1989 not integrated
into the standardized salary rates shall continue to be authorized.
Existing additional compensation of any national government official or employee paid from local funds of a local
government unit shall be absorbed into the basic salary of said official or employee and shall be paid by the National
Government.
Section 17 of the Act, however, exempts incumbent government officials and employees from the operation of
Section 12, thus:
SEC. 17. Salaries of Incumbents. - Incumbents of positions presently receiving salaries and additional
compensation/fringe benefits including those absorbed from local government units and other emoluments, the
aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such excess
compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the
amount of salary adjustment that the incumbent shall receive in the future.
The transition allowance referred to herein shall be treated as part of the basic salary for purposes of computing
retirement pay, year-end bonus and other similar benefits.
xxxx
Being an incumbent at the time, Galang would have continued to receive RATA, Meal Allowance and Rice Subsidy,
separate from his salary, had he not been illegally dismissed from service.
Representation and Transportation Allowance or RATA is a fringe benefit distinct from salary. Unlike salary which is
paid for services rendered, RATA belongs to a basket of allowances to defray expenses deemed unavoidable in the
discharge of office. Hence, it is paid only to certain officials who, by the nature of their offices, incur representation
and transportation expenses.53 The Department of Budget and Management (DBM) Manual on Position
Classification and Compensation discusses the nature of the RATA and qualifies the entitlement of reinstated
government employees thereto in certain fiscal years:
The pertinent general provisions of the General Appropriations Acts (GAAs) prior to FY 1993 and in the FY 1999
GAA provided that the officials listed therein and those of equivalent ranks as may be determined by the Department
of Budget and Management (DBM) are to be granted monthly commutable RATA. Hence, prior to FY 1993 and in FY
1999, RATA were allowances attached to the position.
The pertinent provisions of the FYs 1993 to 1998 GAAs and in the FY 2000 GAA provided that the officials listed
therein and those of equivalent ranks as may be determined by the DBM while in the actual performance of their
respective functions are to be granted monthly commutable RATA. This provision was reiterated in the pertinent
general provisions of the subsequent GAAs. Hence, in FYs 1993 to 1998 and beginning FY 2000 and up to the
present, the actual performance of an official’s duties and responsibilities was a pre-requisite to the grant of
RATA.
The rationale behind the qualifying phrase, "while in the actual performance of their respective functions," is to
provide the official concerned with additional funds to meet necessary expenses incidental to and connected with the
exercise or the discharge of the functions of the office. Thus, if the official is out of office, whether voluntary or
involuntary, the official does not and is not supposed to incur expenses. There being no expenses incurred, there is
nothing to reimburse.
Since RATA are privileges or benefits in the form of reimbursement of expenses, they are not salaries or part of
basic salaries. Forfeiture or non-grant of the RATA does not constitute diminution in pay. RATA may be spent
in variable amounts per work day depending on the situation. Entitlement thereto should not be proportionate to the
number of work days in a month, inclusive of regular and special holidays falling on work days. (Emphasis
supplied.)1avvphi1
For emphasis, the five-year period covered in the computation of Galang’s back salaries and other benefits is from
July 1990 to June 1995. Also, he shall receive back salaries and other benefits for the period during which he should
have been reinstated from October 1, 1997 to August 15, 2001. Since the General Appropriations Act (GAA) for 1993
to 1998 and in the year 2000 onwards require the actual performance of duty as a condition for the grant of RATA,
Galang shall not receive RATA in those years but shall be entitled to RATA only from July 1990 to December 1992
and in the year 1999.
On the other hand, Personnel Economic Relief Allowance (PERA) is a ₱500 monthly allowance authorized under the
pertinent general provision in the annual GAA. It is granted to augment the pay of government employees due to the
rising cost of living.
On February 12, 1997, Congress enacted R.A. No. 825054 (GAA for CY 1997), which granted PERA to all
government employees and officials as a replacement of the Cost of Living Allowance (COLA).55 This explains why
Land Bank employees began receiving PERA only in 1997 – because prior to 1997, said benefit was called by
another name, COLA. Hence, Land Bank is still liable to pay the monthly PERA to Galang.
In his Motion for Issuance of Writ of Execution, Galang acknowledges receipt of "Rice Allowance, which was
monetized based on the value of a sack of rice within the period from July 1990 to June 1995."56 Still, he claims Rice
Subsidy for the succeeding years. Considering, however, that Galang is entitled to back wages only from July 1990
to June 1995 and from October 1, 1997 to August 15, 2001, his claim for Rice Subsidy for the intervening years has
no legal basis.
As to Meal Allowance, Land Bank concedes Galang’s entitlement thereto, albeit, it claims that it had already paid the
same.
Jurisprudence dictates that the burden of proving payment of monetary claims rests on the employer.
The rationalefor this rule was explained in G & M Philippines, Inc. v. Cuambot57:
x x x [O]ne who pleads payment has the burden of proving it. The reason for the rule is that the pertinent personnel
files, payrolls, records, remittances and other similar documents - which will show that overtime, differentials, service
incentive leave, and other claims of workers have been paid - are not in the possession of the worker but in the
custody and absolute control of the employer. Thus, the burden of showing with legal certainty that the obligation has
been discharged with payment falls on the debtor, in accordance with the rule that one who pleads payment has the
burden of proving it. x x x58
To prove payment of Galang’s meal allowance for 1988 and July 1990 to 1995 in the amount of ₱34,860.00, Land
Bank annexed Disbursement Order No. 02-02-017059 dated February 8, 2002 to its Comment60 in CA-G.R. SP No.
91910. However, said disbursement order lacks the signature of Galang as recipient. Verily, we cannot take such
document as conclusive proof that Galang has been paid his meal allowance. Taking into account our determination
that Galang ought to be reinstated earlier, Land Bank shall likewise be liable to pay his Meal Allowance from October
1, 1997 to August 15, 2001.
WHEREFORE, the Decision dated May 25, 2006 and Resolution dated October 25, 2006 of the Court of Appeals in
CA-G.R. SP No. 91910 are AFFIRMED WITH MODIFICATIONS. Land Bank of the Philippines is ordered to pay
Isabelo L. Galang: (a) back salaries for five (5) years from the time of his unlawful dismissal in July 1990 to June
1995 at the rate last received by him without qualification and deduction; (b) back salaries from the proper date of his
reinstatement on October 1, 1997 until August 15, 2001, at the rate prevailing on October 1, 1997 inclusive of
increases in salary; (c) Cost of Living Allowance (COLA) from July 1990 to June 1995; (d) Personnel Economic
Relief Allowance (PERA) from October 1, 1997 to August 15, 2001; (e) Representation and Transportation
Allowance (RATA) from July 1990 to December 1992 and for the year 1999; (f) Meal Allowance in the amount of
₱34,860.00; and (g) Meal Allowance and Rice Subsidy for October 1, 1997 to August 15, 2001.
No pronouncement as to costs.
SO ORDERED.
A.M. No. MTJ-08-1727 March 22, 2011
(Formerly A.M. OCA I.P.I. No. 03-1465-MTJ)
MILAGROS VILLACERAN and OMAR T. MIRANDA, Complainants,
vs.
Judge MAXWEL S. ROSETE and Process Server EUGENIO TAGUBA, Municipal Trial Court in Cities, Branch
2, Santiago City, Isabela, Respondents.
DECISION
PER CURIAM:
Before the Court is an administrative complaint1 for violation of Republic Act No. 30192 filed, on August 12, 2003, by
complainants Milagros Villaceran and Omar T. Miranda against respondents Presiding Judge Maxwel S. Rosete3and
Process Server Eugenio Taguba of the Municipal Trial Court in Cities (MTCC), Branch 2, Santiago City, Isabela.
The Factual Antecedents
The antecedent facts, gathered from the records, are summarized below.
Complainant Villaceran and her husband Jose Villaceran were the accused in Criminal Case Nos. 1-4210 and 1-
4211,4 for violation of Batas Pambansa Blg. 22,5 with the MTCC, Santiago City, Isabela. Judge Ruben R. Plata of
Branch 1 initially heard the case, but upon his inhibition, the cases were re-raffled to Branch 2 of the same court
presided over by the respondent Judge. 6
In her affidavit dated July 25, 2003, complainant Villaceran alleged that her lawyer, Atty. Edmar Cabucana, assured
her that the change of judge was advantageous to them because the respondent Judge was easier to talk to, was an
associate in their law firm, and was his brother’s schoolmate. After their presentation of evidence, Atty. Cabucana
told her to produce ₱25,000.00 for the respondent Judge. Respondent Taguba subsequently asked about the money
and informed her that the respondent Judge had drafted a decision acquitting them. After the promulgation of the
decision on August 1, 2002, Atty. Cabucana asked her to produce another ₱25,000.00, supposedly the balance of
the ₱50,000.00 promised to the respondent Judge in exchange for the favorable decision. Her husband advised her
to ask for a receipt for the additional ₱25,000.00. On the same day, she instructed complainant Miranda (their driver)
to deliver the ₱25,000.00 to the office of Atty. Cabucana, and to demand a receipt therefor. Complainant Miranda
subsequently returned with a provisional receipt7 duly signed by respondent Taguba.8
In a separate affidavit also dated July 25, 2003, complainant Miranda corroborated complainant Villaceran’s material
allegations.9
In his comment dated November 3, 2003, the respondent Judge denied that he was a partner or an associate in the
Cabucana law office; that he talked to anyone about the Villacerans’ cases; or that he received, directly or indirectly,
any amount from the Villacerans during the pendency or after the termination of their cases with him. He claimed that
he decided cases based on the merits and the evidence presented at the trial. The Villacerans fabricated the
administrative case against him out of spite after he found them civilly liable despite their acquittal in the criminal
cases.10
For his part, respondent Taguba, in an affidavit dated October 16, 2003, admitted having received ₱25,000.00, but
insisted that it was not in exchange for the respondent Judge’s favorable decision. He explained that the ₱25,000.00
represented a personal loan he obtained from complainant Villaceran.11
The Administrative Investigation
The Court referred the administrative case to three judges in Isabela for investigation, but, at complainant
12

Villaceran’s instance,13 they successively inhibited themselves.14

The Court subsequently referred15 the case to Judge Henedino P. Eduarte, Regional Trial Court (RTC), Branch 20,
Cauayan City, Isabela, who conducted hearings on the case until he retired on May 14, 2006.16
The Court later referred17 the case to Judge Raul V. Babaran, RTC, Branch 19, Cauayan City, Isabela, but the latter
inhibited himself since the respondent Judge was his fraternity brother.18
The Court then designated Judge Menrado V. Corpuz (Investigating Judge), RTC, Branch 38, Maddela, Quirino, to
continue the investigation.19
Report of the Investigating Judge
In his report and recommendation dated January 21, 2008,20 the Investigating Judge recommended that the
respondent Judge be exonerated from the charge against him for insufficiency of evidence. He noted that
complainant Villaceran had no personal knowledge of the corrupt practice attributed to the respondent Judge. The
Investigating Judge also noted that the affidavits of Atty. Cabucana, dated October 14, 2003, and respondent
Taguba, dated October 16, 2003 disputed complainant Villaceran’s allegation of corruption against the respondent
Judge.21
As to respondent Taguba, the Investigating Judge recommended that he be held guilty of corruption and be
dismissed from the service. He noted that the charge against respondent Taguba was uncontroverted; he failed to
prove his innocence and to clear his name, despite numerous opportunities to do so.22
The Court referred the Investigating Judge's Report to the Office of the Court Administrator (OCA) for evaluation,
report and recommendation.23
The OCA Memorandum
In a memorandum dated April 10, 2008, the OCA agreed with the findings and recommendations of the Investigating
Judge. It noted that the complainants failed to substantiate the alleged corrupt practice of the respondent Judge
since complainant Villaceran admitted that she and her husband never talked to the respondent Judge during the
pendency of their cases, nor did they give him any money or token in connection with the criminal cases filed against
them.24
As to respondent Taguba, the OCA noted that he admitted that he received ₱25,000.00 from complainant Villaceran,
through the latter’s driver, complainant Miranda; he clearly acted on his own without the intervention of the
respondent Judge. It found that respondent Taguba violated Canon 1 of the Code of Conduct for Court Personnel.
This Canon provides that court personnel shall not use their official position to secure unwarranted benefits,
privileges or exemptions for themselves or for others.25
Thus, the OCA recommended that: (a) the administrative complaint be re-docketed as a regular administrative
matter; (b) the complaint against the respondent Judge be dismissed for insufficiency of evidence; and, (c)
respondent Taguba be held guilty of corruption and be dismissed from the service.26
In a Resolution dated December 10, 2008, the Court re-docketed the complaint as an administrative matter and
dismissed the complaint against the respondent Judge. With respect to the complaint against respondent Taguba,
the Court required the parties to manifest whether they were willing to submit the case for resolution based on the
pleadings and the records.27
Respondent Taguba submitted the case for resolution on March 16, 2009.28 Complainants Villaceran and Miranda
failed to comply with the Court’s directive.29
Our Ruling
After considering the OCA memorandum and the entire records, we find the OCA memorandum to be substantially
supported by the evidence on record, and by applicable law and jurisprudence. We, therefore, adopt the findings and
recommendations of the OCA memorandum, subject to the modifications indicated below.
Court personnel, from the lowliest employee, are involved in the dispensation of justice; parties seeking redress from
the courts for grievances look upon court personnel, irrespective of rank or position, as part of the Judiciary.30In
performing their duties and responsibilities, these court personnel serve as sentinels of justice and any act of
impropriety on their part immeasurably affects the honor and dignity of the Judiciary and the people’s trust and
confidence in this institution.31 Therefore, they are expected to act and behave in a manner that should uphold the
honor and dignity of the Judiciary, if only to maintain the people's confidence in the Judiciary.
This expectation is enforced, among others, by Section 2, Canon I of the Code of Conduct for Court Personnel which
mandates that "[c]ourt personnel shall not solicit or accept any gift, favor or benefit based on any or explicit
understanding that such gift, favor or benefit shall influence their official actions." Section 2(e), Canon III, on the other
hand, mandates that "[c]ourt personnel shall not x x x [s]olicit or accept any gift, loan, gratuity, discount, favor,
hospitality or service under circumstances from which it could reasonably be inferred that a major purpose of the
donor is to influence the court personnel in performing official duties." The acts addressed are strictly prohibited to
avoid the perception that court personnel can be influenced to act for or against a party or person in exchange for
favors.321awphi1
In the present case, respondent Taguba clearly violated the above norms of conduct as the complainants’ allegations
against him stood completely uncontroverted. Respondent Taguba’s proffered explanation that the ₱25,000.00 was
a personal loan from complainant Villaceran strains belief; it is a lame attempt to exculpate himself from
administrative liability. It is extremely difficult to believe that for a personal loan, respondent Taguba would arrange to
meet complainant Villaceran at her lawyer’s office. What rather appears, given the prevailing facts of this case, is that
respondent Taguba extracted money from complainant Villaceran for his personal gain, in exchange for the favorable
treatment that he was perceived to be capable of delivering because he was a court employee.
Respondent Taguba's act of collecting or receiving money from a litigant constitutes grave misconduct in office.
Grave misconduct is a grave offense that carries the extreme penalty of dismissal from the service even on a first
offense, pursuant to Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil
Service.33Dismissal carries with it the forfeiture of retirement benefits, except accrued leave credits, and perpetual
disqualification from re-employment in the government service.34
We note that this is not the first administrative infraction of respondent Taguba. In 2003, he was suspended for one
(1) month for simple misconduct.35 In 2005, he was suspended for six (6) months for conduct prejudicial to the best
interest of the service.36 In 2008, he was fined ₱2,000.00 for simple misconduct.37
At any rate, the penalty of dismissal can no longer be imposed because on August 6, 2007, the Court approved
respondent Taguba’s application for disability retirement38 under Republic Act No. 8291,39 effective September 1,
2006.40 In lieu of dismissal, we believe it appropriate – given the gravity of respondent Taguba’s offense – that the
disability retirement benefits still due him be declared forfeited. By Resolution of this Court, the release of these
benefits was withheld pending the final resolution of this case and the other cases pending against respondent
Taguba.41
As a final note, the affidavit itself of complainant Villaceran points to the complicity (or at least, the willing
participation) of her lawyer Atty. Edmar Cabucana in the corruption that attended her criminal case. This matter, to
the Court’s mind, deserves attention as his participation in the corruption that attended this case is no less real than
the participation of respondent Taguba. For this reason, we believe it proper to refer this case to the Office of the Bar
Confidant for its appropriate action.
WHEREFORE, premises considered, the Court finds respondent Eugenio Taguba GUILTY of Grave Misconduct. His
disability retirement benefits are hereby declared forfeited as penalty for his offense, in lieu of dismissal the Court
can no longer impose. He is likewise barred from re-employment in any branch or instrumentality of government,
including government-owned or controlled corporations.
The matter of Atty. Edmar Cabucana’s possible complicity or willing participation in an illegality affecting the Court, is
referred to the Office of the Bar Confidant for its consideration and appropriate action, with the directive to report
back to this Court on this matter within 30 days from receipt of this Decision.
SO ORDERED.
G.R. No. 184219 January 30, 2012
SAMUEL B. ONG, Petitioner,
vs.
OFFICE OF THE PRESIDENT, ET AL., Respondents.
 DECISION
REYES, J.:
The Case
Before us is a petition forreview1 on certiorari under Rule 45 of the Rules of Court filed by Samuel B. Ong (Ong) to
assail the Decision rendered by the Court of Appeals (CA) on August 5, 2008 in CA-G.R. SP No. 88673, the
2

dispositive portion of which reads:

WHEREFORE, in view of the foregoing premises, the petition for quo warranto filed in this case is hereby DENIED.
SO ORDERED.3
Ong died on May 22, 2009 during the pendency of the instant petition.4 Admittedly, Ong's death rendered the prayer
for reinstatement in the petition for quo warranto as moot and academic. However, substitution5 was sought because
in the event that the Court would rule that Ong was indeed entitled to the position he claimed, backwages pertaining
to him can still be paid to his legal heirs. Per Resolution6 issued on January 10, 2011, we granted the motion for
substitution. The deceased petitioner is now herein substituted by his wife Elizabeth, and children, Samuel Jr.,
Elizabeth and Carolyn, all surnamed Ong.
Antecedents Facts
The CA aptly summarized the facts of the case before the filing of the petition for quo warranto as follows:
The petitioner [Ong] joined the National Bureau of Investigation (NBI) as a career employee in 1978. He held the
position of NBI Director I from July 14, 1998 to February 23, 1999 and NBI Director II from February 24, 1998 to
September 5, 2001. On September 6, 2001, petitioner was appointed Director III by the President. His appointment
paper pertinently reads:
"x x x
Pursuant to the provisions of existing laws, the following are hereby appointed to the NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF JUSTICE co-terminus with the appointing authority:
xxx
SAMUEL B. ONG - DIRECTOR III
(vice Carlos S. Caabay) [DEPUTY DIRECTOR]
x x x"
On June 3, 2004, the petitioner received from respondent Reynaldo Wycoco Memorandum Circular No. 02-S.2004
informing him that his appointment, being co-terminus with the appointing authority's tenure, would end effectively at
midnight on June 30, 2004 and, unless a new appointment would be issued in his favor by the President consistent
with her new tenure effective July 1, 2004, he would be occcupying his position in a de facto/hold[-]over status until
his replacement would be appointed.
On December 01, 2004, the President appointed respondent Victor A. Bessat as NBI Director III as replacement of
the petitioner. Consequently, respondent Wycoco notified the petitioner that, effective on December 17, 2004, the
latter should cease and desist from performing his functions as NBI Director III in view of the presidential
appointment of respondent Bessat as petitioner's replacement. The petitioner received the aforementioned notice
only on January 27, 2005.7 (underscoring supplied and citations omitted)
On February 22, 2005, Ong filed before the CA a petition for quo warranto. He sought for the declaration as null and
void of (a) his removal from the position of NBI Director III; and (b) his replacement by respondent Victor Bessat
(Bessat). Ong likewise prayed for reinstatement and backwages.
The CA denied Ong's petition on grounds:
A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or
office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy
the privilege.8 Where the action is filed by a private person, in his own name, he must prove that he is entitled to the
controverted position, otherwise, respondent has a right to the undisturbed possession of the office.9
Section 27 of the Administrative Code of 1987, as amended, classifies the appointment status of public officers and
employees in the career service into permanent and temporary. A permanent appointment shall be issued to a
person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility
prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. In the
absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary
appointment shall be issued to a person who meets all the requirements for the position to which he is being
appointed except the appropriate civil service eligibility; provided, that such temporary appointment shall not exceed
twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.
x x x In Cuadra v. Cordova,10 temporary appointment is defined 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. The termination of a temporary appointment may be with or without a cause since the appointee
serves merely at the pleasure of the appointing authority.
In the career executive service, the acquisition of security of tenure presupposes a permanent appointment. As held
in General v. Roco,11 two requisites must concur in order that an employee in the career executive service may attain
security of tenure, to wit: 1) CES eligibility[;] and 2) appointment to the appropriate CES rank.
In the present case, it is undisputed that the petitioner is a non-CESO eligible. At best, therefore, his appointment
could be regarded only as temporary and, hence, he has no security of tenure. Such being the case, his appointment
can be withdrawn at will by the President, who is the appointing authority in this case, and "at a moment's notice."12
Moreover, a perusal of the petitioner's appointment will reveal that his appointment as NBI Director III is co-terminous
with the appointing authority. Correlatively, his appointment falls under Section 14 of the Omnibus Rules
Implementing Book V of the Revised Administrative Code of 1987 which provides that:13
"Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and
continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his
pleasure, or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds. "
The co-terminous status may thus be classified as follows:
xxxx
(2) Co-terminous with the appointing authority –
when appointment is co-existent with the tenure of the appointing authority or at his pleasure; x x x
xxxx
Thus, although petitioner's appointment is co-terminous with the tenure of the President, he nevertheless serves at
the pleasure of the President and his appointment may be recalled anytime. The case of Mita Pardo de Tavera v.
Philippine Tuberculosis Society, Inc.14 delineated the nature of an appointment held "at the pleasure of the appointing
power" in this wise:
An appointment held at the pleasure of the appointing power is in essence temporary in nature. It is co-extensive
with the desire of the Board of Directors. Hence, when the Board opts to replace the incumbent, technically there is
no removal but only an expiration of term and in an expiration of term, there is no need of prior notice, due hearing or
sufficient grounds before the incumbent can be separated from office. The protection afforded by Section 7.04 of the
Code of By-Laws on Removal [o]f Officers and Employees, therefore, cannot be claimed by petitioner.
All told, petitioner's appointment as well as its consequent termination falls within the ambit of the discretion
bestowed on the appointing authority, the President. Simply put, his appointment can be terminated at any time for
any cause and without the need of prior notice or hearing since he can be removed from his office anytime. His
termination cannot be said to be violative of Section 2(3), Article IX-B of the 1987 Constitution. When a temporary
appointee is required to relinquish his office, he is being separated from office because his term has expired.15Starkly
put, upon the appointment of respondent Bessat as his replacement, his term of office had already expired.
Likewise, it is inconsequential that the petitioner was replaced by another non-CESO eligible, respondent Besat. In
a quo warranto proceeding[,] the person suing must show that he has a clear right to the office allegedly held
unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.16
Indeed, 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. This is a political question involving considerations of wisdom which only the appointing
authority can decide.17
In sum, quo warranto is unavailing in the instant case, as the public office in question has not been usurped, intruded
into or unlawfully held by respondent Bessat. The petitioner had no legal right over the disputed office and his
cessation from office involves no removal but an expiration of his term of office.18
Hence, the instant petition ascribing to the CA the following errors:
I.
THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF THE PETITIONER'S REMOVAL BY
RESPONDENT WYCOCO AS NBI DIRECTOR III (DEPUTY DIRECTOR).19
II.
THE CA ERRED IN HOLDING THAT SINCE THE PETITIONER HELD A CO-TERMINOUS APPOINTMENT,
HE IS TERMINABLE AT THE PLEASURE OF THE APPOINTING POWER.20
Citing Ambas v. Buenaseda21 and Decano v. Edu,22 the instant petition emphasizes that the power of removal is
lodged in the appointing authority. Wycoco, and not the President, issued Memorandum Circular (MC) No. 02-S.2004
informing Ong that his co-terminous appointment as Director III ended effectively on June 30, 2004. The issuance of
MC No. 02-S.2004 was allegedly motivated by malice and revenge since Ong led the NBI employees in holding
rallies in July 2003 to publicly denounce Wycoco. Hence, Bessat's assumption of the position was null and void since
it was technically still occupied by Ong at the time of the former's appointment.
It is further alleged that it was erroneous for the CA to equate "an appointment co-terminous with the tenure of the
appointing authority with one that is at the pleasure of such appointing authority."23 Citing Alba, etc.. v. Evangelista,
etcl.,24 Ong's counsel distinguished a "term" as "the time during which the officer may claim to hold office as of right"
from a "tenure" which "represents the term during which the incumbent actually holds the office". Ong's appointment,
from which he cannot be removed without just cause, was co-terminous with the President's tenure which ended not
on June 30, 2004, but only on June 30, 2010.
Section 2(b), Article IX-G of the 1987 Constitution and Jocom v. Regalado25 are likewise cited to stress that
government employees, holding both career and non-career service positions, are entitled to protection from arbitrary
removal or suspension. In the case of Ong, who started his employment in 1978 and rose from the ranks, it is
allegedly improper for the CA to impliedly infer that the President acted in bad faith by converting his supposed
promotional appointment to one removable at the pleasure of the appointing authority.
In its Comment26 to the petition, the Office of the Solicitor General (OSG) maintains that the replacement of Ong by
Bessat was fair, just and in accord with the doctrine enunciated in Aklan College v. Guarino,27 and with Sections
1328and 14,29 Rule V, Civil Service Commission (CSC) Resolution No. 91-1631 issued on December 27, 1991.
Section 13 substantially provides that only a temporary appointment can be issued to a person who does not have
the appropriate civil service eligibility. Section 14(2), on the other hand, defines a co-terminous appointment as one
co-existent with the tenure of the appointing authority or at his pleasure. The last paragraph of Section 14 states that
appointments which are co-terminous with the appointing authority shall not be considered as permanent.
The OSG also points out that in issuing MC No. 02-S.2004, Wycoco did not remove Ong as Director III but merely
reminded the latter that after June 30, 2004, his appointment shall lapse into a de facto/hold-over status unless he
was re-appointed. Ong's colleagues applied for re-appointment. Bessat was in fact re-appointed as Director II on
August 13, 2004. Subsequently, on December 1, 2004, the President appointed Bessat as Director III, effectively
replacing Ong.
Further, the OSG claims that when Ong accepted promotional appointments in the Career Executive Service (CES)
for which he did not have the required eligibility, he became a temporary employee and had impliedly abandoned his
right to security of tenure.
Our Ruling
The petition is bereft of merit.
MC No. 02-S.2004 did not remove Ong from the position of Director III. Assuming arguendo that it did, the
defect was cured when the President, who was the appointing authority herself, in whose hands were lodged
the power to remove, appointed Bessat, effectively revoking Ong's appointment.
MC No. 02-S.2004,30 addressed to Ong, Bessat, Deputy Director Nestor Mantaring, and Regional Director Edward
Villarta, in part reads:
Records indicate your appointment status as "co-terminus" with the appointing power's tenure which ends effectively
at midnight of this day, 30 June 2004.
Unless, therefore, a new appointment is extended to you by Her Excellency GLORIA MACAPAGAL-ARROYO,
consistent with her new tenure effective 01 July 2004, your services shall lapse into a de facto/hold[-]over status, to
ensure continuity of service, until your replacements are appointed in your stead.31
On December 1, 2004, the President appointed Bessat as Ong's replacement.32 Bessat was notified on December
17, 2004. Wycoco furnished Ong with a Notice,33 dated December 20, 2004, informing the latter that he should cease
from performing the functions of Director III, effective December 17, 2004.
It is argued that in the hands of the appointing authority are lodged the power to remove. Hence, Wycoco allegedly
acted beyond the scope of his authority when he issued MC No. 02-S.2004.
This Court notes that MC No. 02-S.2004 did not in effect remove Ong from his post. It merely informed Ong that
records of the NBI showed that his co-terminous appointment had lapsed into a de facto/hold-over status. It likewise
apprised him of the consequences of the said status.
Be that as it may, if we were to assume for argument's sake that Wycoco removed Ong from his position as Director
III by virtue of the former's issuance of MC No. 02-S.2004, still, the defect was cured when the President herself
issued Bessat's appointment on December 1, 2004. The appointing authority, who in this case was the President,
had effectively revoked Ong's appointment.
Ong lacked the CES eligibility required for the position of Director III and his appointment was "co-terminus
with the appointing authority." His appointment being both temporary and co-terminous in nature, it can be
revoked by the President even without cause and at a short notice.
This Court likewise finds no error in the CA's ruling that since Ong held a co-terminous appointment, he was
removable at the pleasure of the appointing authority.
It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause
provided by law.34 However, this admits of exceptions for it is likewise settled that the right to security of tenure is not
available to those employees whose appointments are contractual and co-terminous in nature.35 1âwphi1
In the case at bar, Ong's appointment as Director III falls under the classifications provided in (a) Section 14(2) of the
Omnibus Rules Implementing Book V of the Administrative Code, to wit, that which is "co-existent with the tenure of
the appointing authority or at his pleasure"; and (b) Sections 13(b)36 and 14(2)37 of Rule V, CSC Resolution No. 91-
1631, or that which is both a temporary and a co-terminous appointment. The appointment is temporary as Ong did
not have the required CES eligibility.
The case of Amores v. Civil Service Commission, et al.38 is instructive anent the nature of temporary appointments in
the CES to which the position of Director III held by Ong belonged. The Court declared:
An appointment is permanent where the appointee meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the
requirements for the position except only the appropriate civil service eligibility.
xxxx
x x x Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the
career executive service a permanent one. x x x
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the
government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill
vacancies in the government. But in all such cases, the appointment is at best merely temporary as it is said to be
conditioned on the subsequent obtention of the required CES eligibility. x x x
xxx
Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon
passing the CES examinations administered by the CES Board. x x x
At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility
and therefore had not held the subject office in a permanent capacity, there could not have been any violation of
petitioner’s supposed right to security of tenure inasmuch as he had never been in possession of the said right at
least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against
his separation from office even if it be for no cause and at a moment’s notice. Not even his own self-serving claim
that he was competent to continue serving as Deputy Director may actually and legally give even the slightest
semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any
case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on
the appointee inasmuch as the security of tenure of employees in the career executive service, except first and
second-level employees, pertains only to rank and not to the office or position to which they may be
appointed.[45]39(underscoring supplied and citations omitted)
The Court is categorical in the Amores case that an appointee without the requisite CES eligibility cannot hold the
position in a permanent capacity. Temporary appointments are made if only to prevent hiatus in the government's
rendition of public service. However, a temporary appointee can be removed even without cause and at a moment's
notice. As to those with eligibilities, their rights to security of tenure pertain to ranks but not to the positions to which
they were appointed.
Ong never alleged that at any time during which he held the Director III position, he had acquired the requisite
eligibility. Thus, the right to security of tenure did not pertain to him at least relative to the Director III position.
The next logical query to be resolved then is whether or not Ong, as an appointee holding a position "co-terminus
with the appointing authority," was entitled to remain as Director III until the end of the President's tenure on June 30,
2010.
We likewise rule in the negative.
Both Section 14 of the Omnibus Rules Rules Implementing Book V of the Administrative Code and Section 14 (2) of
Rule V, CSC Resolution No. 91-1631 define a co-terminous appointment as one co-existent with the tenure of the
appointing authority or at his pleasure.
In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.40 cited by the CA in its decision, we sustained the
replacement of an incumbent, who held an appointment at the pleasure of the appointing authority. Such
appointment was in essence temporary in nature. We categorized the incumbent's replacement not as removal but
rather as an expiration of term and no prior notice, due hearing or cause were necessary to effect the same.
In Decano v. Edu,41 we ruled that the acceptance of a temporary appointment divests an appointee of the right to
security of tenure against removal without cause. Further, in Carillo vs. CA,42 we stated that "one who holds a
temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the
appointing authority, there being no need to show that the termination is for cause."
In Ong's case, his appointment was temporary and co-terminous. The doctrines enunciated in the cases of Mita
Pardo de Tavera, Decano, and Carillo apply. Hence, no legal challenge can be properly posed against the
President's appointment of Bessat as Ong's replacement. The CA correctly ruled that in quo warranto proceedings,
the petitioner must show that he has a clear right to the office allegedly held unlawfully by another and in the
absence of the said right, the lack of qualification or eligibility of the supposed usurper is immaterial. Stated
differently, where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not
prohibited.43
We note that Ong's counsel had painstakingly drawn distinctions between a term and a tenure. It is argued that since
Ong's appointment was co-terminous with the appointing authority, it should not had lapsed into a de factostatus but
continued until the end of the President's tenure on June 30, 2010.
Under the Omnibus Rules Implementing the Revised Administrative Code and CSC Resolution No. 91-1631, a co-
terminous appointment is defined as one "co-existing with the tenure of the appointing authority or at his pleasure."
Neither law nor jurisprudence draws distinctions between appointments "co-existing with the term of the appointing
authority" on one hand, and one "co-existing with the appointing authority's tenure" on the other. In the contrary,
under the aforecited rules, tenure and term are used rather loosely and interchangeably.
In Ong's case, the issues needed to be disposed of revolve around the concepts of temporary and co-terminous
appointments. The distinctions between term and tenure find no materiality in the instant petition. Besides, whether
or not the President's term ended on June 30, 2004 or her tenure ceased on June 30, 2010, the fact remains that she
appointed Bessat as Director III, in effect revoking Ong's temporary and co-terminous appointment.
This Court recognizes Ong's lengthy service rendered to the government and deeply commisserates with his earlier
plight. However, we cannot grant Ong the reliefs he sought as law and jurisprudence clearly dictate that being a
temporary and co-terminous appointee, he had no vested rights over the position of Director III.
IN VIEW OF THE FOREGOING, the petition is DENIED. The Decision rendered by the Court of Appeals on August
5, 2008 in CA-G.R. SP No. 88673 is AFFIRMED.
SO ORDERED.
G.R. No. 176162 October 9, 2012
CIVIL SERVICE COMMISSION, Petitioner,
vs.
COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS F. CEZAR, Respondents.
x-----------------------x
G.R. No. 178845
ATTY. HONESTO L. CUEVA, Petitioner,
vs.
COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS F. CEZAR, Respondents.
DECISION
MENDOZA, J.:
These are consolidated petitions for review under Rule 45 of the Revised Rules of Civil Procedure assailing the
December 29, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 95293, entitled "Dr. Dante G.
Guevarra and Atty. Augustus Cezar v. Civil Service Commission and Atty. Honesto L. Cueva."
The Facts
Respondents Dante G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar) were the Officer-in-Charge/President
and the Vice President for Administration, respectively, of the Polytechnic University of the Philippines (PUP)2 in
2005.
On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then PUP Chief Legal Counsel, filed an
administrative case against Guevarra and Cezar for gross dishonesty, grave misconduct, falsification of official
documents, conduct prejudicial to the best interest of the service, being notoriously undesirable, and for violating
Section 4 of Republic Act (R.A.) No. 6713.3 Cueva charged Guevarra with falsification of a public document,
specifically the Application for Bond of Accountable Officials and Employees of the Republic of the Philippines, in
which the latter denied the existence of his pending criminal and administrative cases. As the head of the school,
Guevarra was required to be bonded in order to be able to engage in financial transactions on behalf of PUP.4 In his
Application for Bond of Accountable Officials and Employees of the Republic of the Philippines (General Form No.
58-A), he answered Question No. 11 in this wise:
11. Do you have any criminal or administrative records? – NO. If so, state briefly the nature thereof – NO.5
This was despite the undisputed fact that, at that time, both Guevarra and Cezar admittedly had 17 pending cases
for violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan.6 Cezar, knowing fully well that both he and
Guevarra had existing cases before the Sandiganbayan, endorsed and recommended the approval of the
application.7
The respondents explained that they believed "criminal or administrative records" to mean final conviction in a
criminal or administrative case.8 Thus, because their cases had not yet been decided by the Sandiganbayan, they
asserted that Guevarra responded to Question No. 11 in General Form No. 58-A correctly and in good faith.9
On March 24, 2006, the Civil Service Commission (CSC) issued Resolution No. 06052110 formally charging Guevarra
with Dishonesty and Cezar with Conduct Prejudicial to the Best Interest of the Service after a prima facie finding that
they had committed acts punishable under the Civil Service Law and Rules.
Subsequently, the respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima Facie
Case11 praying that the case be suspended immediately and that the CSC declare a complete absence of a prima
facie case against them. Cueva, on the other hand, filed an Urgent Ex-Parte Motion for the Issuance of Preventive
Suspension12 and an Omnibus Motion13 seeking the issuance of an order of preventive suspension against Guevarra
and Cezar and the inclusion of the following offenses in the formal charge against them: Grave Misconduct,
Falsification of Official Document, Conduct Prejudicial to the Best Interest of the Service, Being Notoriously
Undesirable, and Violation of Section 4 of R.A. No. 6713.
In Resolution No. 061141, dated June 30, 2006,14 the CSC denied the motion for reconsideration filed by the
respondents for being a non-responsive pleading, akin to a motion to dismiss, which was a prohibited pleading under
Section 16 of the Uniform Rules on Administrative Cases in the Civil Service Commission.15 It also denied Cueva’s
motion to include additional charges against the respondents. The CSC, however, placed Guevarra under preventive
suspension for ninety (90) days, believing it to be necessary because, as the officer-in-charge of PUP, he was in a
position to unduly influence possible witnesses against him.
Aggrieved, Guevarra and Cezar filed a petition for certiorari and prohibition before the CA essentially questioning the
jurisdiction of the CSC over the administrative complaint filed against them by Cueva. On December 29, 2006, the
CA rendered its Decision granting the petition and nullifying and setting aside the questioned resolutions of the CSC
for having been rendered without jurisdiction. According to the CA, Section 47, Chapter 7, Subtitle A, Title I, Book V
of Executive Order No. 292 (The Administrative Code of 1987), the second paragraph of which states that heads of
agencies and instrumentalities "shall have jurisdiction to investigate and decide matters involving disciplinary action
against officers and employees under their jurisdiction," bestows upon the Board of Regents the jurisdiction to
investigate and decide matters involving disciplinary action against respondents Guevarra and Cezar. In addition, the
CA noted that the CSC erred in recognizing the complaint filed by Cueva, reasoning out that the latter should have
exhausted all administrative remedies by first bringing his grievances to the attention of the PUP Board of Regents.
Hence, these petitions.
THE ISSUE
In G.R. No. 176162, petitioner CSC raises the sole issue of:
Whether or not the Civil Service Commission has original concurrent jurisdiction over administrative cases
falling under the jurisdiction of heads of agencies.
The same issue is among those raised by petitioner Cueva in G.R. No. 178845.
The Court agrees that the only question which must be addressed in this case is whether the CSC has jurisdiction
over administrative cases filed directly with it against officials of a chartered state university.
The Court’s Ruling
The petitions are meritorious.
Both CSC and Cueva contend that because the CSC is the central personnel agency of the government, it has been
expressly granted by Executive Order (E.O.) No. 292 the authority to assume original jurisdiction over complaints
directly filed with it. The CSC explains that under the said law, it has appellate jurisdiction over all administrative
disciplinary proceedings and original jurisdiction over complaints against government officials and employees filed
before it by private citizens.16 Accordingly, the CSC has concurrent original jurisdiction, together with the PUP Board
of Regents, over the administrative case against Guevarra and Cezar and it can take cognizance of a case filed
directly with it, despite the fact that the Board of Regents is the disciplining authority of university employees.
Respondents Guevarra and Cezar, on the other hand, fully adopted the position of the CA in its questioned decision
and propounded the additional argument that the passage of R.A. No. 8292 has effectively removed from the CSC
the authority to hear and decide on cases filed directly with it.
CSC has jurisdiction over cases
filed directly with it, regardless of
who initiated the complaint
The CSC, as the central personnel agency of the government, has the power to appoint and discipline its officials
and employees and to hear and decide administrative cases instituted by or brought before it directly or on
appeal.17Section 2(1), Article IX(B) of the 1987 Constitution defines the scope of the civil service:
The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.
By virtue of Presidential Decree (P.D.) No. 1341,18 PUP became a chartered state university, thereby making it a
government-owned or controlled corporation with an original charter whose employees are part of the Civil Service
and are subject to the provisions of E.O. No. 292.19
The parties in these cases do not deny that Guevarra and Cezar are government employees and part of the Civil
Service. The controversy, however, stems from the interpretation of the disciplinary jurisdiction of the CSC as
specified in Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292:
SECTION 47. Disciplinary Jurisdiction.— (1) The Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding
thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed
directly with the Commission by a private citizen against a government official or employee in which case it may hear
and decide the case or it may deputize any department or agency or official or group of officials to conduct the
investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the
penalty to be imposed or other action to be taken.
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their
jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or
fine in an amount not exceeding thirty days’ salary. In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially appealed to the department and finally to the Commission
and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall
be executory only after confirmation by the Secretary concerned. [Emphases and underscoring supplied]
While in its assailed decision, the CA conceded that paragraph one of the same provision abovequoted allows the
filing of a complaint directly with the CSC, it makes a distinction between a complaint filed by a private citizen and
that of an employee under the jurisdiction of the disciplining authority involved. The CA resolved that because Cueva
was then the Dean of the College of Law and the Chief Legal Counsel of PUP when he filed the complaint with the
CSC, he was under the authority of the PUP Board of Regents. Thus, it is the Board of Regents which had exclusive
jurisdiction over the administrative case he initiated against Guevarra and Cezar.
The Court finds itself unable to sustain the reading of the CA.
The issue is not novel.
The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 which states that "a
complaint may be filed directly with the Commission by a private citizen against a government official or employee" is
that the CSC can only take cognizance of a case filed directly before it if the complaint was made by a private citizen.
The Court is not unaware of the use of the words "private citizen" in the subject provision and the plain meaning rule
of statutory construction which requires that when the law is clear and unambiguous, it must be taken to mean
exactly what it says. The Court, however, finds that a simplistic interpretation is not in keeping with the intention of
the statute and prevailing jurisprudence. It is a well-established rule that laws should be given a reasonable
interpretation so as not to defeat the very purpose for which they were passed. As such, "a literal interpretation is to
be rejected if it would be unjust or lead to absurd results."20 In Secretary of Justice v. Koruga,21 the Court emphasized
this principle and cautioned us on the overzealous application of the plain meaning rule:
The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the
contrary, they should be given their plain, ordinary, and common usage meaning. However, a literal interpretation of
a statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the evident meaning of the
statute taken as a whole. After all, statutes should receive a sensible construction, such as will give effect to the
legislative intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to give words
meanings that would lead to absurd or unreasonable consequences.22
A literal interpretation of E.O. 292 would mean that only private citizens can file a complaint directly with the CSC.
For administrative cases instituted by government employees against their fellow public servants, the CSC would
only have appellate jurisdiction over those. Such a plain reading of the subject provision of E.O. 202 would effectively
divest CSC of its original jurisdiction, albeit shared, provided by law. Moreover, it is clearly unreasonable as it would
be tantamount to disenfranchising government employees by removing from them an alternative course of action
against erring public officials.
There is no cogent reason to differentiate between a complaint filed by a private citizen and one filed by a member of
the civil service, especially in light of Section 12(11), Chapter 3, Subtitle A, Title I, Book V of the same E.O. No. 292
which confers upon the CSC the power to "hear and decide administrative cases instituted by or brought before it
directly or on appeal" without any qualification.
In the case of Camacho v. Gloria,23 the Court stated that "under E.O. No. 292, a complaint against a state university
official may be filed with either the university’s Board of Regents or directly with the Civil Service Commission."24 It is
important to note that the Court did not interpret the Administrative Code as limiting such authority to exclude
complaints filed directly with it by a member of the civil service.
Moreover, as early as in the case of Hilario v. Civil Service Commission,25 the Court interpreted Section 47, Chapter
7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the direct filing with the CSC by a public official of a
complaint against a fellow government employee. In the said case, Quezon City Vice-Mayor Charito Planas directly
filed with the CSC a complaint for usurpation, grave misconduct, being notoriously undesirable, gross
insubordination, and conduct prejudicial to the best interest of the service against the City Legal Officer of Quezon
City. The CSC issued a resolution ruling that the respondent official should not be allowed to continue holding the
position of legal officer. In a petition to the Supreme Court, the official in question asserted that the City Mayor was
the only one who could remove him from office directly and not the CSC. The Court upheld the decision of the CSC,
citing the same provision of the Administrative Code:
Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a complaint
directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer entitled to
hold the position of City Legal Officer, it was acting within its authority under the Administrative Code to hear and
decide complaints filed before it.26 [Underscoring supplied]
It has been argued that Hilario is not squarely in point.27 While it is true that the circumstances present in the two
cases are not identical, a careful reading of Hilario reveals that petitioner therein questioned the authority of the CSC
to hear the disciplinary case filed against him, alleging that the CSC’s jurisdiction was only appellate in nature.
Hence, the reference to the abovequoted passage in Hilario is very appropriate in this case as respondents herein
pose a similar query before us.
It cannot be overemphasized that the identity of the complainant is immaterial to the acquisition of jurisdiction over an
administrative case by the CSC. The law is quite clear that the CSC may hear and decide administrative disciplinary
cases brought directly before it or it may deputize any department or agency to conduct an investigation.
CSC has concurrent original jurisdiction
with the Board of Regents over
administrative cases
The Uniform Rules on Administrative Cases in the Civil Service28 (the Uniform Rules) explicitly allows the CSC to
hear and decide administrative cases directly brought before it:
Section 4. Jurisdiction of the Civil Service Commission. – The Civil Service Commission shall hear and decide
administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and
shall review decisions and actions of its offices and of the agencies attached to it.
Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final
authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and
upon all matters relating to the conduct, discipline and efficiency of such officers and employees. [Emphases and
underscoring supplied]
The CA construed the phrase "the Civil Service Commission shall have the final authority to pass upon the removal,
separation and suspension of all officers and employees in the civil service" to mean that the CSC could only step in
after the relevant disciplinary authority, in this case the Board of Regents of PUP, had investigated and decided on
the charges against the respondents. Regrettably, the CA failed to take into consideration the succeeding section of
the same rules which undeniably granted original concurrent jurisdiction to the CSC and belied its suggestion that the
CSC could only take cognizance of cases on appeal:
Section 7. Jurisdiction of Heads of Agencies. – Heads of Departments, agencies, provinces, cities, municipalities and
other instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective officers
and employees.29 [Emphasis supplied]
It was also argued that although Section 4 of the Uniform Rules is silent as to who can file a complaint directly with
the CSC, it cannot be construed to authorize one who is not a private citizen to file a complaint directly with the CSC.
This is because a rule issued by a government agency pursuant to its law-making power cannot modify, reduce or
enlarge the scope of the law which it seeks to implement.30
Following the earlier disquisition, it can be said that the Uniform Rules does not contradict the Administrative Code.
Rather, the former simply provides a reasonable interpretation of the latter. Such action is perfectly within the
authority of the CSC, pursuant to Section 12(2), Chapter 3, Subtitle A, Title I, Book V of E.O. No. 292, which gives it
the power to "prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil
Service Law and other pertinent laws."
Another view has been propounded that the original jurisdiction of the CSC has been further limited by Section 5 of
the Uniform Rules, such that the CSC can only take cognizance of complaints filed directly with it which: (1) are
brought against personnel of the CSC central office, (2) are against third level officials who are not presidential
appointees, (3) are against officials and employees, but are not acted upon by the agencies themselves, or (4)
otherwise require direct or immediate action in the interest of justice:
Section 5. Jurisdiction of the Civil Service Commission Proper. – The Civil Service Commission Proper shall have
jurisdiction over the following cases:
A. Disciplinary
1. Decisions of the Civil Service Regional Offices brought before it on petition for review;
2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities,
imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary
brought before it on appeal;
3. Complaints brought against Civil Service Commission Proper personnel;
4. Complaints against third level officials who are not presidential appointees;
5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and
such other complaints requiring direct or immediate action, in the interest of justice;
6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;
7. Appeals from the Order of Preventive Suspension; and
8. Such other actions or requests involving issues arising out of or in connection with the foregoing
enumerations.
It is the Court’s position that the Uniform Rules did not supplant the law which provided the CSC with original
jurisdiction. While the Uniform Rules may have so provided, the Court invites attention to the cases of Civil Service
Commission v. Alfonso31 and Civil Service Commission v. Sojor,32 to be further discussed in the course of this
decision, both of which buttressed the pronouncement that the Board of Regents shares its authority to discipline
erring school officials and employees with the CSC. It can be presumed that, at the time of their promulgation, the
members of this Court, in Alfonso and Sojor, were fully aware of all the existing laws and applicable rules and
regulations pertaining to the jurisdiction of the CSC, including the Uniform Rules. In fact, Sojor specifically cited the
Uniform Rules in support of its ruling allowing the CSC to take cognizance of an administrative case filed directly with
it against the president of a state university. As the Court, in the two cases, did not consider Section 5 of the Uniform
Rules as a limitation to the original concurrent jurisdiction of the CSC, it can be stated that Section 5 is merely
implementary. It is merely directory and not restrictive of the CSC’s powers. The CSC itself is of this view as it has
vigorously asserted its jurisdiction over this case through this petition.
The case of Alfonso33 is on all fours with the case at bench. The case involved a complaint filed before the CSC
against a PUP employee by two employees of the same university. The CA was then faced with the identical issue of
whether it was the CSC or the PUP Board of Regents which had jurisdiction over the administrative case filed
against the said PUP employee. The CA similarly ruled that the CSC could take cognizance of an administrative
case if the decisions of secretaries or heads of agencies, instrumentalities, provinces, cities and municipalities were
appealed to it or if a private citizen directly filed with the CSC a complaint against a government official or employee.
Because the complainants in the said case were PUP employees and not private citizens, the CA held that the CSC
had no jurisdiction to hear the administrative case. It further posited that even assuming the CSC had the authority to
do so, immediate resort to the CSC violated the doctrine of exhaustion of administrative remedies as the complaint
should have been first lodged with the PUP Board of Regents to allow them the opportunity to decide on the matter.
This Court, however, reversed the said decision and declared the following:
xxx. Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government departments,
agencies and instrumentalities. However, a complaint may be filed directly with the CSC, and the Commission has
the authority to hear and decide the case, although it may opt to deputize a department or an
agency to conduct the investigation. x x x
xxx xxx xxx
We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing bodies
in different branches, subdivisions, agencies and instrumentalities of the government to hear and decide
administrative complaints against their respective officers and employees. Be that as it may, we cannot interpret the
creation of such bodies nor the passage of laws such as – R.A. Nos. 8292 and 4670 allowing for the creation of such
disciplinary bodies – as having divested the CSC of its inherent power to supervise and discipline government
employees, including those in the academe. To hold otherwise would not only negate the very purpose for which the
CSC was established, i.e. to instill professionalism, integrity, and accountability in our civil service, but would also
impliedly amend the Constitution itself.
xxx xxx xxx
But it is not only for this reason that Alfonso’s argument must fail. Equally significant is the fact that he had already
submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit and his motion for reconsideration
and requested for a change of venue, not from the CSC to the BOR of PUP, but from the CSC-Central Office to the
CSC-NCR. It was only when his motion was denied that he suddenly had a change of heart and raised the question
of proper jurisdiction. This cannot be allowed because it would violate the doctrine of res judicata, a legal principle
that is applicable to administrative cases as well. At the very least, respondent’s active participation in the
proceedings by seeking affirmative relief before the CSC already bars him from impugning the Commission’s
authority under the principle of estoppel by laches.
In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not lodged before the
disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing respondent’s alleged
violation of civil service laws, rules and regulations. After a fact-finding investigation, the Commission found that a
prima facie case existed against Alfonso, prompting the Commission to file a formal charge against the latter. Verily,
since the complaints were filed directly with the CSC, and the CSC has opted to assume jurisdiction over the
complaint, the CSC’s exercise of jurisdiction shall be to the exclusion of other tribunals exercising concurrent
jurisdiction. To repeat, it may, however, choose to deputize any department or agency or official or group of officials
such as the BOR of PUP to conduct the investigation, or to delegate the investigation to the proper regional office.
But the same is merely permissive and not mandatory upon the Commission.34 [Emphases and underscoring
supplied]
It has been opined that Alfonso does not apply to the case at bar because respondent therein submitted himself to
the jurisdiction of the CSC when he filed his counter-affidavit before it, thereby preventing him from later questioning
the jurisdiction of the CSC. Such circumstance is said to be totally absent in this case.35
The records speak otherwise. As in Alfonso, respondents herein submitted themselves to the jurisdiction of the CSC
when they filed their Joint Counter-Affidavit.36 It was only when their Motion for Reconsideration and Motion to
Declare Absence of Prima Facie Case37 was denied by the CSC that they thought to put in issue the jurisdiction of
the CSC before the CA, clearly a desperate attempt to evade prosecution by the CSC. As in Alfonso, respondents
are also estopped from questioning the jurisdiction of the CSC.
Based on all of the foregoing, the inescapable conclusion is that the CSC may take cognizance of an administrative
case filed directly with it against an official or employee of a chartered state college or university. This is regardless
of whether the complainant is a private citizen or a member of the civil service and such original jurisdiction is shared
with the Board of Regents of the school.
Gaoiran not applicable
In its decision, the CA relied heavily on Gaoiran v. Alcala38 to support its judgment that it is the Board of Regents, and
not the CSC, which has jurisdiction over the administrative complaint filed against the respondents.
A thorough study of the said case, however, reveals that it is irrelevant to the issues discussed in the case at bench.
Gaoiran speaks of a complaint filed against a high school teacher of a state-supervised school by another employee
of the same school. The complaint was referred to the Legal Affairs Service of the Commission on Higher Education
(LAS-CHED). After a fact-finding investigation established the existence of a prima facie case against the teacher,
the Officer-in-Charge of the Office of the Director of LAS-CHED issued a formal charge for Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service, together with the Order of Preventive Suspension. The newly-
appointed Director of LAS-CHED, however, dismissed the administrative complaint on the ground that the letter-
complaint was not made under oath. Unaware of this previous resolution, the Chairman of the CHED issued another
resolution finding petitioner therein guilty of the charges against him and dismissing him from the service. The trial
court upheld the resolution of the director of LAS-CHED but on appeal, this was reversed by the CA, affirming the
decision of the CHED chairman removing petitioner from service. One of the issues raised therein before this Court
was whether the CA erred in disregarding the fact that the complaint was not made under oath as required by the
Omnibus Rules Implementing Book V of E.O. 292.
In the said case, the Court concurred with the findings of the CA that it was the formal charge issued by the LAS-
CHED which constituted the complaint, and because the same was initiated by the appropriate disciplining authority,
it need not be subscribed and sworn to and CHED acquired jurisdiction over the case. The Court further affirmed the
authority of the heads of agencies to investigate and decide matters involving disciplinary action against their officers
and employees. It bears stressing, at this point, that there is nothing in the case that remotely implies that this Court
meant to place upon the Board of Regent exclusive jurisdiction over administrative cases filed against their
employees.
In fact, following the ruling in Gaoiran, it can be argued that it was CSC Resolution No. 060521 which formally
charged respondents that constituted the complaint, and since the complaint was initiated by the CSC itself as the
disciplining authority, the CSC properly acquired jurisdiction over the case.
R.A. No. 8292 is not in conflict
with E.O. No. 292.
In addition, the respondents argue that R.A. No. 8292, which granted to the board of regents or board of trustees
disciplinary authority over school employees and officials of chartered state colleges and universities, should prevail
over the provisions of E.O. No. 292.39 They anchor their assertion that the Board of Regents has exclusive
jurisdiction over administrative cases on Section 4 of R.A. No. 8292,40 to wit:
Section 4. Powers and duties of Governing Boards. – The governing board shall have the following specific powers
and duties in addition to its general powers of administration and the exercise of all the powers granted to the board
of directors of a corporation under Section 36 of Batas Pambansa Blg. 68 otherwise known as the Corporation Code
of the Philippines;
xxxx
(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions
of the revised compensation and classification system and other pertinent budget and compensation laws governing
hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves
of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not with
standing; and to remove them for cause in accordance with the requirements of due process of law. [Emphasis
supplied]
The respondents are mistaken.
Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of
interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance
with the legal maxim interpretare et concordare leges legibus est optimus interpretandi modus.41 Simply because a
later statute relates to a similar subject matter as that of an earlier statute does not result in an implied repeal of the
latter.42
A perusal of the abovequoted provision clearly reveals that the same does not indicate any intention to remove
employees and officials of state universities and colleges from the ambit of the CSC. What it merely states is that the
governing board of a school has the authority to discipline and remove faculty members and administrative officials
and employees for cause. It neither supersedes nor conflicts with E.O. No. 292 which allows the CSC to hear and
decide administrative cases filed directly with it or on appeal.
In addition to the previously cited case of Alfonso, the case of The Civil Service Commission v. Sojor43 is likewise
instructive. In the said case, this Court ruled that the CSC validly took cognizance of the administrative complaints
directly filed with it concerning violations of civil service rules committed by a university president. This Court
acknowledged that the board of regents of a state university has the sole power of administration over a university, in
accordance with its charter and R.A. No. 8292. With regard to the disciplining and removal of its employees and
officials, however, such authority is not exclusive to it because all members of the civil service fall under the
jurisdiction of the CSC:
Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in
the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific
power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive.
When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters,
it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with
the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.
All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-
career civil servant does not remove respondent from the ambit of the CSC.
Career or non-career, a civil service official or employee is within the jurisdiction of the CSC.44[Emphases and
underscoring supplied]
It has been pointed out that the case of Sojor is not applicable to the case at bar because the distinction between a
complaint filed by a private citizen and one filed by a government employee was not taken into consideration in the
said case.45 The dissent fails to consider that Sojor is cited in the ponencia to support the ruling that R.A. No. 8292 is
not in conflict with E.O. No. 292 and to counter respondents’ flawed argument that the passage of R.A. No. 8292
granted the Board of Regents exclusive jurisdiction over administrative cases against school employees and officials
of chartered state colleges and universities. Also noteworthy is the fact that the complainants before the CSC in
Sojor were faculty members of a state university and were, thus, government employees. Nevertheless, despite this,
the Court allowed the CSC to assert jurisdiction over the administrative case, proclaiming that the power of the Board
of Regents to discipline its officials and employees is not exclusive but is concurrent with the CSC.46
The case of University of the Philippines v. Regino47 was also cited to bolster the claim that original jurisdiction over
disciplinary cases against government officials is vested upon the department secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities, whereas the CSC only enjoys appellate jurisdiction over such
cases.48 The interpretation therein of the Administrative Code supposedly renders effectual the provisions of R.A. No.
8292 and does not "deprive the governing body of the power to discipline its own officials and employees and render
inutile the legal provisions on disciplinary measures which may be taken by it."49
The Court respectfully disagrees. Regino is obviously inapplicable to this case because there, the school employee
had already been found guilty and dismissed by the Board of Regents of the University of the Philippines. Therefore,
the issue put forth before this Court was whether the CSC had appellate jurisdiction over cases against university
employees, considering the university charter which gives it academic freedom allegedly encompassing institutional
autonomy. In contrast, no administrative case was filed before the Board of Regents of PUP because the case was
filed directly with the CSC and so, the question here is whether the CSC has original concurrent jurisdiction over
disciplinary cases. Rationally, the quoted portions in Regino find no application to the case at bench because those
statements were made to uphold the CSC’s appellate jurisdiction which was being contested by petitioner therein. At
the risk of being repetitive, it is hereby stressed that the authority of the CSC to hear cases on appeal has already
been established in this case. What is in question here is its original jurisdiction over administrative cases.
A different interpretation of the Administrative Code was suggested in order to harmonize the provisions of R.A. No.
8292 and E.O. 292. By allowing only a private citizen to file a complaint directly with the CSC, the CSC maintains its
power to review on appeal decisions of the Board of Regents while at the same time the governing board is not
deprived of its power to discipline its officials and employees.50
To begin with, there is no incongruity between R.A. No. 8292 and E.O. No. 292, as previously explained in Sojor.
Moreover, the Court fails to see how a complaint filed by a private citizen is any different from one filed by a
government employee. If the grant to the CSC of concurrent original jurisdiction over administrative cases filed by
private citizens against public officials would not deprive the governing bodies of the power to discipline their own
officials and employees and would not be violative of R.A. No. 8292, it is inconceivable that a similar case filed by a
government employee would do so. Such a distinction between cases filed by private citizens and those by civil
servants is simply illogical and unreasonable. To accede to such a mistaken interpretation of the Administrative Code
would be a great disservice to our developing jurisprudence.1âwphi1
It is therefore apparent that despite the enactment of R.A. No. 8292 giving the board of regents or board of trustees
of a state school the authority to discipline its employees, the CSC still retains jurisdiction over the school and its
employees and has concurrent original jurisdiction, together with the board of regents of a state university, over
administrative cases against state university officials and employees.
Finally, with regard to the concern that the CSC may be overwhelmed by the increase in number of cases filed
before it which would result from our ruling,51 it behooves us to allay such worries by highlighting two important facts.
Firstly, it should be emphasized that the CSC has original concurrent jurisdiction shared with the governing body in
question, in this case, the Board of Regents of PUP. This means that if the Board of Regents first takes cognizance
of the complaint, then it shall exercise jurisdiction to the exclusion of the CSC.52 Thus, not all administrative cases will
fall directly under the CSC. Secondly, Section 47, Chapter 7, Subtitle A, Title I, Book V of the Administrative Code
affords the CSC the option of whether to decide the case or to deputize some other department, agency or official to
conduct an investigation into the matter, thereby considerably easing the burden placed upon the CSC.
Having thus concluded, the Court sees no need to discuss the other issues raised in the petitions.
WHEREFORE, the petitions are GRANTED. The December 29, 2006 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Resolution Nos. 060521 and 061141 dated March 24, 2006 and June 30,
2006, respectively, of the Civil Service Commission are REINSTATED.
SO ORDERED.
G.R. No. 167916 August 26, 2008
SARAH P. AMPONG, petitioner,
vs.
CIVIL SERVICE COMMISSION, CSC-Regional Office No. 11, respondents.
DECISION
REYES R.T., J.:
CAN the Civil Service Commission (CSC) properly assume jurisdiction over administrative proceedings against a
judicial employee involving acts of dishonesty as a teacher, committed prior to her appointment to the judiciary?
Before Us is a petition for review on certiorari assailing the Decision1 of the Court of Appeals (CA) affirming the
CSC’s exercise of administrative jurisdiction over petitioner.
The Facts
The following facts are uncontroverted:
On November 10, 1991, a Professional Board Examination for Teachers (PBET)2 was held in Davao City. A certain
Evelyn Junio-Decir3 applied for and took the examination at Room 16, Kapitan Tomas Monteverde Elementary
School. She passed with a rating of 74.27%.4
At the time of the PBET examinations, petitioner Sarah P. Ampong (nee Navarra) and Decir were public school
teachers under the supervision of the Department of Education, Culture and Sports (DECS).5 Later, on August 3,
1993, Ampong transferred to the Regional Trial Court (RTC) in Alabel, Sarangani Province, where she was
appointed as Court Interpreter III.
On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office (CSRO) No.
XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. During the course of the transaction, the CSRO
personnel noticed that the woman did not resemble the picture of the examinee in the Picture Seat Plan (PSP). Upon
further probing, it was confirmed that the person claiming the eligibility was different from the one who took the
examinations. It was petitioner Ampong who took and passed the examinations under the name Evelyn Decir.
The CSRO conducted a preliminary investigation and determined the existence of a prima facie case against Decir
and Ampong for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. On
August 23, 1994, they were formally charged and required to file answers under oath. The formal charge reads:
That sometime before the conduct of the November 10, 1991 Professional Board Examination for Teachers
(PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16 Kapitan Tomas
Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That on July 5, 1994 she
appeared before the CSC Region XI Office to get her Guro Certificate; That upon verification, it was found out
that the picture attached in the Picture Seat Plan, marked as Annex "A" and "A-1," respectively, were not the
same compared to the picture attached in the CSC Form 212 of Evelyn Junio-Decir marked herein as annex
"B," "B-1," respectively. There was also a marked difference in the signatures affixed in the said
annexes; That further investigations revealed that it was the pictures of Ms. Sarah Navarra, wife of her
husband’s first cousin, who took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional
teacher; That the said act of Mesdames Decir and Navarra are acts of dishonesty and conduct prejudicial to
the best interest of the service; that in (sic) taking the CS examination for and in behalf of another undermines
the sanctity of the CS examinations; All these contrary to existing civil service laws and regulations.
(Emphasis supplied)
In her sworn statement dated November 3, 1994, Decir denied the charges against her. She reasoned out that it
must have been the examination proctor who pasted the wrong picture on the PSP and that her signatures were
different because she was still signing her maiden name at the time of the examination. In her Answer, Decir
contended that:
2. The same accusation is denied, the truth being:
a. When I took the Professional Board Examination for Teachers (PBET) in the year 1991, I handed
my 1x1 I.D. picture to the proctor assigned in the examination room who might have inadvertently
pasted in the Seat Plan [the] wrong picture instead [of] my own picture;
b. With respect to the marked difference in my signature both appearing in the aforesaid Seat Plan and
also with the Form 212, the disparity lies in that in the year 1991, when I took the afroresaid
 examination, I was still sporting my maiden name Evelyn B. Junio in order to coincide with all my
pertinent supporting papers, like the special order (s.o.), appointment and among others, purposely to
take said communications. However, immediately after taking the PBET Examination in 1991, I started
using the full name of Evelyn Junio-Decir.6
Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995 and
admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel, petitioner
voluntarily waived said right.
On March 13, 1995, petitioner gave another admission in the following tenor:
Q: Now, what is then your intention in coming to this Region inasmuch as you are still intending to file an
answer to the formal charge?
A: I came here because I want to admit personally. So that I will not be coming here anymore. I will submit
my case for Resolution.
Q: So, you intend to waive your right for the formal hearing and you also admit orally on the guilt of the
charge on the Formal Charge dated August 24, 1994?
A: Yes, Ma’am.
Q: What else do you want to tell the Commission?
A: x x x Inasmuch as I am already remorseful, I am repenting of the wrong that I have done. I am hoping
that the Commission can help x x x so that I will be given or granted another chance to serve the government.
xxxx
Q: Now inasmuch as you have declared that you have admitted the guilt that you took the examination for
and in behalf of Evelyn Junio Decir, are you telling this to the Commission without the assistance of the
counsel or waiver of your right to be assisted by counsel.
A: Yes, Ma’am. I am waiving my right.7 (Emphasis supplied)
Petitioner reiterated her admission in her sworn Answer dated March 16, 1995:
3. That, during the commission of the act, I was still under the Department of Education, Culture and Sports,
as Teacher in-charge of San Miguel Primary School, Malungon North District, way back in 1991, when the
husband of Evelyn Junio-Decir, my husband’s cousin came to me and persuaded me to take the examination
in behalf of his wife to which I disagreed but he earnestly begged so that I was convinced to agree because I
pity his wife considering that she is an immediate relative, and there was no monetary consideration involved
in this neither a compensatory reward for me, as I was overcome by their persuasion;
4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a ground for
disciplinary action and punishable by dismissal;
5. That I should not have conformed to this anomalous transaction considering that I was born in a Christian
family, and was brought up in the fear of Lord, and had been a consistent officer of the Church Board, had
been a religious leader for so many years, and had been the organizer of the Music Festival of the
Association of Evangelical Churches of Malungon, Sarangani Province, thus I was devoted to church work
and was known to be of good conduct; and that my friends and acquaintances can vouch to that, but I was
just forced by circumstances to agree to the spouses Godfre and Evelyn Decir.8 (Emphasis added)
CSC Finding and Penalty
On March 21, 1996, the CSC found petitioner Ampong and Decir guilty of dishonesty, dismissing them from the
service. The dispositive part of the CSC resolution states:
WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of Dishonesty.
Accordingly, they are meted the penalty of dismissal with all its accessory penalties. The PBET rating of Decir
is revoked.9
Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction.10 She argued that the exclusive
authority to discipline employees of the judiciary lies with the Supreme Court; that the CSC acted with abuse of
discretion when it continued to exercise jurisdiction despite her assumption of duty as a judicial employee. She
contended that at the time the case was instituted on August 23, 1994, the CSC already lost jurisdiction over her.
She was appointed as Interpreter III of the RTC, Branch 38, Alabel, Sarangani Province on August 3, 1993.
The CSC denied the motion for reconsideration.11 According to the Commission, to allow petitioner to evade
administrative liability would be a mockery of the country’s administrative disciplinary system. It will open the
floodgates for others to escape prosecution by the mere expedient of joining another branch of government. In
upholding its jurisdiction over petitioner, the CSC differentiated between administrative supervision exercised by the
Supreme Court and administrative jurisdiction granted to the Commission over all civil service employees:
 Moreover, it must be pointed out that administrative supervision is distinct from administrative
jurisdiction. While it is true that this Commission does not have administrative supervision over employees in
the judiciary, it definitely has concurrent jurisdiction over them. Such jurisdiction was conferred upon the Civil
Service Commission pursuant to existing law specifically Section 12(11), Chapter 3, Book V of the
Administrative Code of 1987 (Executive Order No. 292) which provides as follows:
"(11) Hear and decide administrative cases instituted by or through it directly or on appeal, including
contested appointment, and review decisions and actions of its offices and of the agencies attached to
it x x x."
The fact that court personnel are under the administrative supervision of the Supreme Court does not totally
isolate them from the operations of the Civil Service Law. Appointments of all officials and employees in the
judiciary is governed by the Civil Service Law (Section 5(6), Article VIII, 1987 Constitution). (Emphasis
supplied)
CA Disposition
Via petition for review under Rule 43, petitioner elevated the matter to the CA.12 She insisted that as a judicial
employee, it is the Supreme Court and not the CSC that has disciplinary jurisdiction over her.
In a Decision dated November 30, 2004,13 the CA denied the petition for lack of merit.
The CA noted that petitioner never raised the issue of jurisdiction until after the CSC ruled against her. Rather, she
willingly appeared before the commission, freely admitted her wrongdoing, and even requested for clemency. Thus,
she was estopped from questioning the Commission’s jurisdiction. The appellate court opined that while lack of
jurisdiction may be assailed at any stage, a party’s active participation in the proceedings before a court, tribunal or
body will estop such party from assailing its jurisdiction.
The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies. As a public
school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules and regulations. When
she committed acts in violation of the Civil Service Law, the CSC was clothed with administrative jurisdiction over
her.
Issue
Petitioner, through this petition, assigns the lone error that:
The Honorable Court of Appeals-First Division decided a question of substance in a way not in accord with
law and jurisprudence, gravely erred in facts and in law, and has sanctioned such departure and grave error
because it ignored or was not aware of Garcia v. De la Peña, 229 SCRA 766 (1994) and Adm. Matter No.
OCA I.P.I. 97-329-P (CSC v. Ampong) dated January 31, 2001, which reiterate the rule that exclusive
authority to discipline employees of the judiciary lies with the Supreme Court, in issuing the questioned
decision and resolution; which grave error warrant reversal of the questioned decision and resolution.14
Put simply, the issue boils down to whether the CSC has administrative jurisdiction over an employee of the Judiciary
for acts committed while said employee was still with the Executive or Education Department.
Our Ruling
The answer to the question at the outset is in the negative but We rule against the petition on the ground of estoppel.
It is true that the CSC has administrative jurisdiction over the civil service. As defined under the Constitution and the
Administrative Code, the civil service embraces every branch, agency, subdivision, and instrumentality of the
government, and government-owned or controlled corporations.15 Pursuant to its administrative authority, the CSC is
granted the power to "control, supervise, and coordinate the Civil Service examinations."16 This authority grants to
the CSC the right to take cognizance of any irregularity or anomaly connected with the examinations.17
However, the Constitution provides that the Supreme Court is given exclusive administrative supervision
over all courts and judicial personnel.18 By virtue of this power, it is only the Supreme Court that can oversee the
judges’ and court personnel’s compliance with all laws, rules and regulations. It may take the proper administrative
action against them if they commit any violation. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers.19 Thus, this Court ruled that the Ombudsman cannot justify its
investigation of a judge on the powers granted to it by the Constitution. It violates the specific mandate of the
Constitution granting to the Supreme Court supervisory powers over all courts and their personnel; it undermines the
independence of the judiciary.20
In Civil Service Commission v. Sta. Ana,21 this Court held that impersonating an examinee of a civil service
examination is an act of dishonesty. But because the offender involved a judicial employee under the administrative
supervision of the Supreme Court, the CSC filed the necessary charges before the Office of the Court Administrator
(OCA), a procedure which this Court validated.
A similar fate befell judicial personnel in Bartolata v. Julaton,22 involving judicial employees who also impersonated
civil service examinees. As in Sta. Ana, the CSC likewise filed the necessary charges before the OCA because
respondents were judicial employees. Finding respondents guilty of dishonesty and meting the penalty of dismissal,
this Court held that "respondents’ machinations reflect their dishonesty and lack of integrity, rendering them unfit to
maintain their positions as public servants and employees of the judiciary."23
Compared to Sta. Ana and Bartolata, the present case involves a similar violation of the Civil Service Law by a
judicial employee. But this case is slightly different in that petitioner committed the offense before her appointment to
the judicial branch. At the time of commission, petitioner was a public school teacher under the administrative
supervision of the DECS and, in taking the civil service examinations, under the CSC. Petitioner surreptitiously took
the CSC-supervised PBET exam in place of another person. When she did that, she became a party to cheating or
dishonesty in a civil service-supervised examination.
That she committed the dishonest act before she joined the RTC does not take her case out of the administrative
reach of the Supreme Court.
The bottom line is administrative jurisdiction over a court employee belongs to the Supreme Court,
regardless of whether the offense was committed before or after employment in the judiciary.
Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before the OCA.
Records show that the CSC did not adhere to this procedure in the present case.
However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The previous
actions of petitioner have estopped her from attacking the jurisdiction of the CSC. A party who has affirmed and
invoked the jurisdiction of a court or tribunal exercising quasi-judicial functions to secure an affirmative relief may not
afterwards deny that same jurisdiction to escape a penalty.24 As this Court declared in Aquino v. Court of Appeals:25
In the interest of sound administration of justice, such practice cannot be tolerated. If we are to sanction this
argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other
respects would simply become useless.26
Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to impugn the
court’s jurisdiction.27 In Emin v. De Leon,28 this Court sustained the exercise of jurisdiction by the CSC, while
recognizing at the same time that original disciplinary jurisdiction over public school teachers belongs to the
appropriate committee created for the purpose as provided for under the Magna Carta for Public School
Teachers.29 It was there held that a party who fully participated in the proceedings before the CSC and was accorded
due process is estopped from subsequently attacking its jurisdiction.
Petitioner was given ample opportunity to present her side and adduce evidence in her defense before the CSC. She
filed with it her answer to the charges leveled against her. When the CSC found her guilty, she moved for a
reconsideration of the ruling. These circumstances all too clearly show that due process was accorded to petitioner.
Petitioner’s admission of guilt stands. Apart from her full participation in the proceedings before the CSC,
petitioner admitted to the offense charged – that she impersonated Decir and took the PBET exam in the latter’s
place. We note that even before petitioner filed a written answer, she voluntarily went to the CSC Regional Office
and admitted to the charges against her. In the same breath, she waived her right to the assistance of counsel. Her
admission, among others, led the CSC to find her guilty of dishonesty, meting out to her the penalty of dismissal.
Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial investigations,
the assistance of counsel is necessary in order for an extra-judicial confession to be made admissible in evidence
against the accused in a criminal complaint. If assistance was waived, the waiver should have been made with the
assistance of counsel.30
But while a party’s right to the assistance of counsel is sacred in proceedings criminal in nature, there is no such
requirement in administrative proceedings. In Lumiqued v. Exevea,31 this Court ruled that a party in an administrative
inquiry may or may not be assisted by counsel. Moreover, the administrative body is under no duty to provide the
person with counsel because assistance of counsel is not an absolute requirement.32
Petitioner’s admission was given freely. There was no compulsion, threat or intimidation. As found by the CSC,
petitioner’s admission was substantial enough to support a finding of guilt.
The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement and/or use
of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the
same, cheating, collusion, impersonation, or any other anomalous act which amounts to any violation of the Civil
Service examination."33Petitioner impersonated Decir in the PBET exam, to ensure that the latter would obtain a
passing mark. By intentionally practicing a deception to secure a passing mark, their acts undeniably involve
dishonesty.34
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of
integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to
defraud, deceive or betray."35 Petitioner’s dishonest act as a civil servant renders her unfit to be a judicial employee.
Indeed, We take note that petitioner should not have been appointed as a judicial employee had this Court been
made aware of the cheating that she committed in the civil service examinations. Be that as it may, petitioner’s
present status as a judicial employee is not a hindrance to her getting the penalty she deserves.
The conduct and behavior of everyone connected with an office charged with the dispensation of justice is
circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is mirrored in
the conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and lowest of
its personnel.36 As the Court held in another administrative case for dishonesty:
x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not be
countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the slightest breach
of duty by, and the slightest irregularity in the conduct of, said officers and employees, if so warranted. Such
breach and irregularity detract from the dignity of the highest court of the land and erode the faith of the
people in the judiciary.
xxxx
As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or
circumvention, on the part of any employee to follow and conform to the rules and regulations enunciated by
this Court and the Commission on Civil Service, should be tolerated. The Court, therefore, will not hesitate to
rid its ranks of undesirables who undermine its efforts toward an effective and efficient system of
justice.37 (Emphasis added)
We will not tolerate dishonesty for the Judiciary expects the best from all its employees.38 Hindi namin papayagan
ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakamabuti sa lahat nitong kawani.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
G.R. No. 185668 December 13, 2011
PHILIPPINE AMUSEMENT AND GAMING CORPORATION, Petitioner,
vs.
COURT OF APPEALS and MIA MANAHAN, Respondents.
DECISION
REYES, J.:
Before us is a Petition for Certiorari1 under Rule 65 of the 1997 Rules of Civil Procedure which assails the following
decision and resolution of public respondent Court of Appeals (CA) in the case docketed as CA-G.R. SP No. 100908,
entitled Philippine Amusement & Gaming Corporation v. Mia Manahan:
(a) the Decision2 dated October 2, 2008 which denied herein petitioner's Petition for Review and affirmed in
toto the Resolutions dated July 10, 2007 and September 10, 2007 of the Civil Service Commission on the
issue of PAGCOR's dismissal from the service of herein private respondent; and
(b) the Resolution3 dated November 27, 2008 which denied the petitioner's Motion for Reconsideration of the
Decision of October 2, 2008.
The Facts
Private respondent Mia Manahan (Manahan) was a Treasury Officer of petitioner Philippine Amusement and Gaming
Corporation (PAGCOR) assigned in Casino Filipino-Manila Pavilion (CF-Pavilion). Among her functions as Treasury
Officer was the handling of fund transfer requests received by CF-Pavilion and the supervision of the office's Vault-in-
Charge and Senior Cashier.
On April 14, 2004, at around 1:30 in the afternoon, Manahan received from the fax machine of CF-Pavilion's SVIP-
Treasury a document that appeared to be a Request for Fund Transfer4 coming from Casino Filipino-Laoag (CF-
Laoag). The request was for Four Million Two Hundred Thousand Pesos (₱4,200,000.00) to be released by CF-
Pavilion to "Arnulfo Fuentabella or David Fuentabella."
About 30 minutes from Manahan's receipt of the fax document, a person who represented himself to be "David
Fuentabella" claimed from CF-Pavilion the amount of ₱4,200,000.00. Said "David Fuentabella" presented an SSS
Identification Card5 to prove his identity, duly accepted by the respondent, who as the Treasury Officer then on duty,
also approved the release of the money and chips to the claimant. ₱2,000,000.00 was released in cash, and
₱2,200,000.00 was released in the form of chips.
At around 7:30 in the evening of April 15, 2004, the Treasury Officer of CF-Pavilion then on duty, Jennifer Bagtas,
informed CF-Laoag through phone that the fund transfer for ₱4,200,000.00 had already been paid by CF-Pavilion to
Mr. Fuentabella. However, CF-Laoag's Vault-in-Charge Norman Santiago and Treasury Head Joselito Ricafort
denied that such fund transfer had been made by CF-Laoag to CF-Pavilion. Close to midnight of the same day,
Manahan was called by PAGCOR's Assistant Chief Security Officer asking her to report immediately to CF-Pavilion,
where she was informed of CF-Laoag's claim that it sent no fund transfer for ₱4,200,000.00 in favor of "Arnulfo or
David Fuentabella." Manahan was interrogated by PAGCOR's Casino Operations Manager, Branch Manager and
Senior Chief Security Officer on what transpired on April 14, 2004.
A notice of preventive suspension dated April 15, 2004 and signed by Dan N. Dia, Senior Branch Manager of CF-
Pavilion, was received by .Manahan on April 16, 2004. The pertinent portions of the notice read:
You are hereby informed of the charge against you of SERIOUS PROCEDURAL DEVIATION/GROSS
NEGLIGENCE, arising from the anomalous fund transfer transaction in the amount of [₱]4.2 million, consummated at
the VIP Booth last April 14, 2004 wherein you were on the 6-2PM duty.
Pending result of the investigation of the case, please be informed that you are hereby placed under preventive
suspension effective immediately.6
From April 16 to 17, 2004, Manahan was instructed to report to the Corporate Office of PAGCOR where she was
again questioned regarding the fund transfer incident. On April 21, 2004, she received a Notice to Appear and
Explain of even date, signed by Atty. Noel Ostrea, Assistant Head of PAGCOR's Corporate Investigation Unit (CIU),
and which reads in part:
The Corporate Investigation Unit is tasked to conduct a fact-finding inquiry into the performance by several Treasury
officers and personnel of different casino branches, including yourself, of their duties and responsibilities in relation to
the untoward events of 14 April 2004, and all circumstances pertinent thereto. We have invited you through CF-
Pavilion to appear before us today. However, you failed to appear. In this regard, may we again invite you to appear
before this Unit on Friday, 23 April 2004 at around 2:00 pm. Should you fail to do so, this will be deemed a waiver of
your right to be heard, without further recourse.7
On April 26, 2004, Manahan filed with the CIU a Written Statement8 giving her account of the events that transpired
in relation to the disputed fund transfer. The Statement was filed in lieu of her oral testimony, after the CIU allegedly
did not allow her to be assisted by counsel during the April 23, 2004 meeting and instead granted her the option to
submit a written statement.9
Particularly on the matter of her failure to avert the release of ₱4.2 million under a spurious request for fund transfer,
Manahan explained in her Written Statement that per actual practice, she was not required to confirm the fund
transfer from CF-Laoag, it being sufficient that "David Fuentabella" was a regular player of CF-Pavilion and the
request document she received was complete with pertinent information and the required signatures. Manahan also
claimed that immediately after the release of the amount of ₱4.2 million to the claimant, she confirmed this fact by
fax to CF-Laoag.
On June 2, 2004, Manahan finally received from PAGCOR's Human Resource Department (HRD) Senior Managing
Head, Visitacion F. Mendoza, a letter of even date informing her of the PAGCOR Board of Directors' (BOD) decision
to dismiss her from the service. The pertinent portions of the letter read:
Please be informed that the Board of Directors in its meeting on June 1, 2004, resolved to dismiss you from the
service effective April 16, 2004 due to the following offense:
"Gross neglect of duty; Violations of company rules and regulations; Conduct prejudicial to the best interests of the
corporation; and Loss of trust and confidence; Failure to comply with Treasury rules and regulations which resulted in
payment of a spurious Fund Transfer amounting to [₱]4.2 million last April 14, 2004."101avvphi1
Manahan filed a Motion for Reconsideration11 of the PAGCOR BOD's decision to dismiss her from the service, giving
the following grounds in support thereof: (1) she was deprived of her constitutional right to due process of law when
the PAGCOR BOD outrightly dismissed her from service without informing her of the formal charges and apprising
her of the documentary evidence against her; (2) she was not guilty of gross neglect of duty in allowing the spurious
fund transfer considering that when she handled the fund transfer request, she did what was required of her per
common practice in the Treasury Offices of PAGCOR; (3) she was not a confidential employee and thus could not
have been dismissed on the ground of loss of trust and confidence; and, (4) even assuming that she committed an
act of negligence, the loss incurred by PAGCOR was directly caused by a scheme employed by perpetrators who
clearly knew of the lax internal controls observed by PAGCOR, making the penalty of dismissal too harsh and
excessive as it was not commensurate to the act attributed to her. The motion was denied by the PAGCOR BOD for
lack of merit, as disclosed in a letter12 dated July 7, 2004 addressed to Manahan and also signed by HRD Senior
Managing Head Mendoza.
Feeling aggrieved, Manahan appealed from the PAGCOR's rulings to the Civil Service Commission (CSC).
The Ruling of the CSC
On July 10, 2007, the CSC issued Resolution No. 07126413 granting herein respondent Manahan's appeal from the
decisions of PAGCOR. After a finding of violation of Manahan's right to due process, the Commission remanded the
case to PAGCOR for the issuance of a formal charge, if warranted, then a formal investigation pursuant to the
Uniform Rules on Administrative Cases in the Civil Service. It declared the preventive suspension of Manahan null
and void for having been issued by virtue of an invalid charge and for its failure to specify the duration of preventive
suspension. Further, the CSC noted that the order of dismissal served upon Manahan was a mere notice issued by
the HRD Senior Managing Head informing her of the PAGCOR BOD's decision to dismiss her from the service,
instead of a copy of the BOD Resolution on the order of dismissal.
Thus, the dispositive portion of the CSC Resolution reads:
WHEREFORE, the appeal of Mia B. Manahan, Treasury Officer, Philippine Amusement and Gaming Corporation
(PAGCOR), Roxas Boulevard, Ermita, Metro Manila, is hereby GRANTED. Accordingly, the instant case is
remanded to the PAGCOR for the issuance of the required formal charge, if the evidence so warrants, and thereafter
to proceed with the formal investigation of the case. The formal investigation should be completed within three (3)
calendar months from the date of receipt of the records of the case from the Commission. Within fifteen (15) days
from the termination of the investigation, the disciplining authority shall render its decision; otherwise, the
Commission shall vacate and set aside the appealed decision and declare respondent exonerated from the
charge(s) against her, pursuant to Section 48, Rule III, Uniform Rules on Administrative Cases in the Civil Service.
The order of preventive suspension issued to Manahan is hereby declared NULL AND VOID. Thus, she should be
paid the salaries and other benefits that should have accrued to her during the period of her preventive suspension.
The Director IV of the Civil Service Commission-National Capital Region (CSC-NCR) is hereby directed to monitor
the implementation of this Resolution and submit a report to the Commission.14
PAGCOR's Motion for Reconsideration15 was denied by the CSC via its Resolution No. 07177916 dated September
10, 2007, prompting PAGCOR to file with public respondent CA a Petition for Review17 under Rule 43 of the 1997
Rules of Civil Procedure with the following arguments: (1) the decision of the CSC was not supported by the
evidence on record; and (2) the errors of law or irregularities attributed to the CSC were prejudicial to the interest of
PAGCOR.
The Ruling of the CA
On October 2, 2008, the CA rendered the assailed Decision18 affirming in toto the Resolutions of the CSC. The
dispositive portion of the decision reads:
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Resolutions of the Civil Service
Commission dated 10 July 2007 and 10 September 2007 are AFFIRMED in toto.
SO ORDERED.19
PAGCOR's Motion for Reconsideration20 was denied by the CA via its Resolution21 dated November 27, 2008.
The Present Petition
PAGCOR then filed the present Petition for Certiorari under Rule 65, assailing the rulings of the CA on the ground of
grave abuse of discretion. The following arguments are presented to support the petition:
A. Public respondent CA acted with grave abuse of discretion in ruling contrary to its own precedent
jurisprudence enunciated in the case of Philippine Amusement and Gaming Corporation vs.
Joaquin,22wherein the validity of a Notice of Charges issued by a Senior Branch Manager of PAGCOR was
upheld by the CA despite deficiencies in requirements under CSC rules;
B. The public respondent acted with grave abuse of discretion in ignoring that respondent Manahan was given
the right to be heard; and
C. The public respondent acted with grave abuse of discretion in overlooking the undisputed facts supporting
the petitioner's decision to dismiss respondent Manahan.
This Court's Ruling
After due study, this Court finds the petition bereft of merit.
Before a party can resort to Rule 65 of the Rules of Court, there must be no other plain, speedy, and adequate
remedy that is available to question the assailed ruling.
At the outset, we rule that the petitioner availed of the wrong remedy to question the rulings of public respondent CA
considering that it had the opportunity to file a Petition for Review on Certiorari under Rule 45 of the Rules of Court.
Section 1 thereof provides:
Section 1. Filing of Petition with Supreme Court.
A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which
must be distinctly set forth. (emphasis supplied)
The period to file such petition, as provided in Section 2, Rule 45, is 15 days from notice of the judgment or final
order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in
due time after notice of the judgment. Since PAGCOR declares having received on December 2, 2008 a copy of the
CA Resolution denying its Motion for Reconsideration, it had 15 days from the said date, or until December 17, 2008,
within which to exercise the remedy of a petition for review on certiorari then available to it.
PAGCOR's resort to Rule 65 of the Rules of Court is thus misplaced. It is explicit in Section 1, Rule 65 that before a
party can resort to this remedy, there must be no other plain, speedy and adequate remedy that is available to the
petitioner to question the findings and rulings of the CA. It reads:
Section 1. Petition for Certiorari.
When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as
provided in the third paragraph of Section 3, Rule 46. (emphasis supplied)
Thus, jurisprudence is replete with the pronouncement that where appeal is available to the aggrieved party, the
special civil action of certiorari will not be entertained – remedies of appeal and certiorari are mutually exclusive, not
alternative or successive.23 The proper remedy of the party aggrieved by a decision of the CA is a petition for review
under Rule 45, which is not identical with a petition under Rule 65. Under Rule 45, decisions, final orders or
resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings involved, may be
appealed to us by filing a petition for review, which would be but a continuation of the appellate process over the
original case. On the other hand, a special civil action under Rule 65 is an independent action based on the specific
ground therein provided and, as a general rule, cannot be availed of as a substitute for the lost remedy of an ordinary
appeal, including that to be taken under Rule 45.24 One of the requisites of certiorari is that there is no available
appeal or any plain, speedy and adequate remedy. Where an appeal was available, as in this case, certiorari will not
prosper even if the ground therefor is grave abuse of discretion.25
That the remedy of a Petition for Review on Certiorari was no longer available to PAGCOR at the time of filing of this
petition is of no moment. Again, we emphasize that certiorari is not and cannot be a substitute for lost appeal,
especially if one's own negligence or error in one's choice of remedy occasioned such loss or lapse.26 The special
civil action for certiorari is a limited form of review and is a remedy of last recourse.27
PAGCOR attempts to justify its resort to Rule 65 by reasoning that this petition does not involve a "novel question of
law" required in appeals by certiorari under Rule 45. Rule 45, however, merely requires that there be a "question of
law," which according to jurisprudence exists when the doubt or controversy concerns the correct application of law
or jurisprudence to a certain set of facts,28 as in this case. The rulings made by the CA and the issues now involved
in this petition are on the application of the CSC rules and relevant jurisprudence on the right of the respondent to
due process. While the case originally brought before the CSC delved on the grounds for the petitioner’s decision to
dismiss Manahan from the service, the issue now before us has become limited to the propriety and correctness of
the case's remand to PAGCOR for further investigation after a finding of violation of the respondent's right to due
process, a matter that involves the proper application of law and jurisprudence for its proper resolution.
In any case, even granting that this petition can be properly filed under Rule 65 of the Rules of Court, we hold that it
is bound to fail. "Grave abuse of discretion" under Rule 65 has a specific meaning. It is the arbitrary or despotic
exercise of power due to passion, prejudice or personal hostility, or the whimsical, arbitrary or capricious exercise of
power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in
contemplation of law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of
discretion must be patent and gross.29 A review of the assailed rulings of the CA shows that it did not commit such
grave abuse of discretion. On the contrary, its findings are supported by factual and legal bases.
From a valid dismissal from the government service, the requirements of due process must be complied with.
Citing CSC Resolution No. 99-1936 entitled "Uniform Rules on Administrative Cases in the Civil Service", particularly
Section 16 thereof on the requirement of a formal charge in investigations, the appellate court correctly ruled that:
As contemplated under the foregoing provision, a formal charge is a written specification of the charge(s) against an
employee. While its form may vary, it generally embodies a brief statement of the material and relevant facts
constituting the basis of the charge(s); a directive for the employee to answer the charge(s) in writing and under oath,
accompanied by his/her evidence; and advice for the employee to indicate in his/her answer whether he/she elects a
formal investigation; and a notice that he/she may secure the assistance of a counsel of his/her own choice. A
cursory reading of the purported formal charge issued to Manahan shows that the same is defective as it does not
contain the abovementioned statements, and it was not issued by the proper disciplining authority. Hence, under the
foregoing factual and legal milieu, Manahan is not deemed to have been formally charged.30
Reference to CSC Resolution No. 99-1936 is proper, being the law applicable to formal charges in the civil service
prior to the imposition of administrative sanctions. The requirements under Section 16 thereof are clear, as it
provides:
Section 16. Formal Charge. – After a finding of a prima facie case, the disciplining authority shall formally charge the
person complained of. The formal charge shall contain a specification of charge(s), a brief statement of material or
relevant facts, accompanied by certified true copies of the documentary evidence, if any, sworn statements covering
the testimony of witnesses, a directive to answer the charge(s) in writing under oath in not less than seventy-two (72)
hours from receipt thereof, an advice for the respondent to indicate in his answer whether or not he elects a formal
investigation of the charge(s) and a notice that he is entitled to be assisted by a counsel of his choice.
If the respondent has submitted his comment and counter-affidavits during the preliminary investigation, he shall be
given the opportunity to submit additional evidence.
The disciplining authority shall not entertain requests for clarification, bills of particulars or motions to dismiss which
are obviously designed to delay the administrative proceedings. If any of these pleadings are interposed by the
respondent, the same shall be considered as an answer and shall be evaluated as such.
Evidently, the petitioner failed to substantially comply with the requisite formal charge, as well as with the other
requirements under CSC Resolution No. 99-1936 concerning the procedure for the conduct of an administrative
investigation. What PAGCOR claims to be the formal charge it issued in compliance with the CSC rules was the
memorandum addressed to Manahan under the subject "Preventive Suspension," which was issued by CF-Pavilion's
Senior Branch Manager only, and which merely states, as follows:
You are hereby informed of the charge against you of SERIOUS PROCEDURAL DEVIATION/GROSS
NEGLIGENCE, arising from the anomalous fund transfer transaction in the amount of ₱4.2 million, consummated at
the VIP Booth last April 14, 2004 wherein you were on the 6-2PM duty.31
We find no reason to deviate from the appellate court's finding that a Senior Branch Manager is not among the
company's disciplining authority, he or she being merely charged with the duty, among others, "to recommend
disciplinary sanctions for violations of house rules and company policies and procedures."32 The petitioner assails
this finding and invokes the pronouncement of the CA in Philippine Amusement and Gaming Corporation (PAGCOR)
v. Joaquin33 to support its argument that a Senior Branch Manager is a competent disciplining
authority. PAGCOR imputes grave abuse of discretion on the part of the CA in disregarding its own ruling in said
case upholding the validity of the formal charge, issued also by a Senior Branch Manager. A perusal of the CA
decision in PAGCOR v. Joaquin however reveals that the authority of a Senior Branch Manager to sign and issue a
formal charge was not a matter raised in said case. The declaration of the Court against a "myopic interpretation of
the legal requirement as to the issuance of a formal charge"34 was made after it ordered the remand of the case by
the CSC to PAGCOR for failure to meet two (2) requirements for a formal charge's validity, considering that: (1) the
prescribed period given to respondent Joaquin to explain was only 48 hours, not 72, and (2) the notice failed to
mention that the respondent was entitled to a lawyer. These requirements were declared remedied because
exhaustive proceedings preceded the rendition by the PAGCOR BOD of its decision to dismiss Joaquin, together
with the fact that she was allowed to be represented by two (2) counsels during the proceedings conducted by
PAGCOR's Branch Management Panel.
The circumstances and procedural deficiencies are different in this case. It is worthy to note that the respondent
herein had signified her desire to be represented by a counsel during the proceedings before PAGCOR, and even
requested to be furnished with documents during the investigations then being conducted by the petitioner. Her
requests were evidenced by her counsel's letter35 dated April 19, 2004 to the PAGCOR's Head of Investigation Unit.
Instead of allowing these reasonable requests of the respondent, PAGCOR, in its letter36 dated April 26, 2004 to the
respondent's counsel, replied that her requests deserved scant consideration, and were even premature, due to the
following reasons:
The presence of counsel is neither an antecedent nor indispensable element of administrative due process.
In Sebastian, Sr. vs. Garchitorena (G.R. No. 114028, October 18, 2000 [343 SCRA 463]), Mr. Justice Sabino R. De
Leon Jr. succinctly enunciated the dictum that:
"Entrenched is the rule that the rights provided in Section 12, Article III of the 1987 Constitution may be invoked only
when a person is under 'custodial investigation' or is 'in custody investigation.' Custodial investigation has been
defined as any questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in a significant way.
"While an investigation conducted by an administrative body may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an administrative inquiry may not be assisted by counsel, irrespective of
the nature of the charges and of the respondent's capacity to represent himself, and no duty rests on such a body to
furnish the person investigated with counsel. x x x
xxxx
Ergo, Manahan's counsel has neither right nor privilege to be furnished with any information gathered during
the investigation. Although Ms. Manahan may be advised regarding the technical intricacies akin to the fact
in issue, she may not be accompanied or represented by her lawyer during the investigation. This absolute
prohibition is consistent with the internal rules and/or customary practice of PAGCOR. Hence, a lawyer
stands as a mere bystander or a distant observer during all phases of the investigation process.Needless to
say, the witness' refusal to appear before the CIU shall be deemed a waiver of her right to be heard.37(emphasis
supplied)
Thus, the petitioner did not refute Manahan’s allegation in her Written Statement dated April 26, 2004 that she was
not allowed to be assisted by counsel during the scheduled meeting with the CIU on April 23, 2004, when the CIU
was to ask her questions and take her statement. This stance of PAGCOR was in clear disregard of the respondent's
rights protected under the cited Section 16 of CSC Resolution No. 99-1936. While due process in an agency
investigation may be limited as compared to due process in criminal proceedings, where however a statute
specifically provides for a procedure and grants particular rights to a party under investigation such as in the
investigations of persons covered by the Civil Service Rules, these rights shall not be utterly disregarded, especially
so when invoked by the party under investigation, as was Manahan, because these rights already form part of a
procedural due process.
The finding that PAGCOR failed to comply with the required procedure is further supported by the fact that in
PAGCOR's letter dated April 26, 2004, it explained that the investigation process against the respondent had just
commenced.38 If this were the case, i.e., that the investigation process had just began at that time, then the
proceedings conducted by PAGCOR were clearly flawed, since a formal charge can be made only after a finding of
prima facie case during investigations. Section 15 of CSC Resolution No. 99-1936 provides as follows:
Section 15. Decision or Resolution After Preliminary Investigation. If a prima facie case is established during the
investigation, a formal charge shall be issued by the disciplining authority. A formal investigation shall follow.
In the absence of a prima facie case, the complaint shall be dismissed.
Even the filing by respondent Manahan of a motion for reconsideration of PAGCOR's decision to dismiss her from
the service could not have cured the violation of her right to due process. After a clear denial of due process during
the investigations, it was only through a decision that sufficiently apprised the respondent of the wrongful acts she
supposedly committed and the rules she purportedly violated that Manahan could be able to truly defend herself.
PAGCOR's letter dated June 2, 2004 to respondent Manahan on the BOD's decision to dismiss her from the service,
again reproduced hereunder for emphasis, failed in this regard:
Please be informed that the Board of Directors in its meeting on June 1, 2004, resolved to dismiss you from the
service effective April 16, 2004 due to the following offense:
"Gross neglect of duty; Violations of company rules and regulations; Conduct prejudicial to the best interests of the
corporation; and Loss of trust and confidence; Failure to comply with Treasury rules and regulations which resulted in
payment of a spurious Fund Transfer amounting to ₱4.2 Million last April 14, 2004."39
While a liberal construction of administrative rules of procedure is allowed and applied in some cases, this is resorted
to when it can promote their objective and aid the parties in reaching a just, speedy and inexpensive determination of
their respective claims and defenses.40 Without proper investigation and, thereafter, a decision that clearly indicated
the facts constituting the offense imputed upon the respondent and the company rules she supposedly violated, the
respondent did not get the chance to sufficiently defend herself; and more importantly, the petitioner, the CSC and
the courts could not have had the chance to reasonably ascertain the truth which the CSC rules aim to accomplish.
This Court shall not delve into the sufficiency of grounds to justify the private respondent's dismissal from the service,
as the said issue is among those for determination by PAGCOR following the remand of the case.
WHEREFORE, premises considered, the petition is hereby DISMISSED. The Decision dated October 2, 2008 and
Resolution dated November 27, 2008 of the CA in CA-G.R. SP No. 100908 are hereby AFFIRMED.
SO ORDERED.
G.R. No. 163859 August 15, 2012
DR. FERNANDO A. MELENDRES, M.D., Executive Director of the Lung Center of the Philippines
(LCP),Petitioner,
vs.
PRESIDENTIAL ANTI-GRAFT COMMISSION, acting through its duly authorized representative,
COMMISSIONER CESAR D. BUENAFLOR, ALBERTO G. ROMULO, Executive Secretary, AND SUSAN SY
NAVAL, THERESA M. ALCANTARA, JOSE PEPITO M. AMORES, VINCENT M. BALANAG, JR., GUILLERMO G.
BARROA, JR., REY A. DESALES, NORBERTO A. FRANCISCO, DAVID F. GEOLLEGUE, BENILDA B. GALVEZ,
LUISITO F. IDOLOR, VICTORIA C. !DOLOR, BUENA VENTURA V. MEDINA, JR., NEWELL R. NACPIL, RAOUL
C. VILLARETE and GUILLERMO T. MADLANG-AWA, all of the Lung Center of the Philippines
(LCP),Respondents.
DECISION
VILLARAMA, JR., J.:
The present petition under Rule 45 assails the Decision1 dated February 27, 2004 and Resolution2 dated May 28,
2004 of the Court of Appeals (CA) in CA-G.R. SP No. 74272 affirming the Order dated December 3, 2002 of the
Presidential Anti-Graft Commission (PAGC).
The factual antecedents:
Petitioner Dr. Fernando A. Melendres was appointed Executive Director of the Lung Center of the Philippines (LCP)
in 1999 by then President Joseph Ejercito Estrada. Acting on a complaint lodged by 15 physicians of the LCP, the
Secretary of Health issued Department Order No. 119, s. 2002, dated April 3, 2002 creating a Fact-Finding
Committee to look into their charges against petitioner. The Committee simultaneously investigated the charges
against petitioner, and the latter’s counter-charges against Dr. Jose Pepito Amores, LCP Deputy Director for Hospital
Support Services, and the 14 complainant-physicians.
On June 28, 2002, the Committee submitted its Final Report of its findings and recommendations to then Health
Secretary Manuel M. Dayrit. Said report enumerated the complaints against petitioner as follows:
i. Procurement of presentation banner without bidding, complexed with falsification of documents;
ii. Unlawful/excessive availments of gasoline privileges;
iii. Procurement/payment of the cellular phone and pager bills of respondent using LCP funds;
iv. Awarding of a Contract of Lease of a room/clinic in the LCP for respondent’s own and direct benefit;
v. Unlawful award of the Sports Consultant Services Agreement;
vi. Appointment of Architect Federico R. Medina in which the second of two architectural service agreements was
falsified;
vii. Respondent’s propensity to make special petty cash funds in substantial amounts to circumvent the public
bidding/canvass requirement, particularly for the construction of the 2nd floor of the T-Block Building of the LCP;
viii. Issuance of Center Order No. 155-A, s. 2001 on the use of alternative modes other than public bidding for
purchases or acquisitions of a unit or system valued in excess of P1M;
ix. Refusal or inaction to implement the Resolution of the Office of the Government Corporate Counsel (OGCC)
finding Ms. Heidi Basobas guilty of gross neglect of duty, inefficiency and competence, and recommending her
dismissal from the service;
x. Issuance of Center Order No. 55, s. 2000 which granted double payment of RATA for the single position of
Pharmacy Division Head;
xi. Implementing reorganization and personnel movements within LCP not in accordance with the Department of
Health (DOH) Rationalization and Streamlining Plan nor approved by the Department of Budget and Management,
and without factual and legal bases;
xii. Multiple demotion of Dr. Jose Pepito Amores by issuing orders removing from his supervision and jurisdiction the
following Divisions: Accounting & Budget, Billing, Credit Collection, Nursing Service, and Research;
xiii. Questionable personnel appointments made in the absence of any (1) announced vacancy in the plantilla
positions; (2) list of applicants to the said positions; and
(3) deliberations from LCP’s Medical Staff Accreditation Committee;
xiv. Use of Demerol and Nubaine, for which he had coerced Drs. Victoria Canlas Idolor and Theresa Alcantara to
issue prescriptions for said drugs;
xv. Invalid appointment as LCP Director which should be by the majority vote of all the members of the LCP Board of
Trustees; and
xvi. Undue Discrimination in the grant of privilege to engage in the private practice of medicine and other instances of
discrimination against some medical staff.3
The Committee found prima facie case against petitioner for the following offenses: (a) procurement of presentation
banner without public bidding complexed with falsification of documents; (b) falsification of documents in the hiring of
architectural consultant; (c) violation of auditing rules on the drawing of petty cash advances to circumvent the law on
public bidding of infrastructure projects; and (d) unauthorized implementation of a reorganization plan unapproved by
the Board of Trustees.
Adopting the findings of the Fact-Finding Committee, the LCP Board of Trustees, chaired by the Secretary of Health,
issued a Resolution4 dated August 23, 2002 (1) recommending to the Office of the President (OP) the filing of formal
administrative charges against petitioner and his preventive suspension pending investigation; (2) directing the
separation from service of LCP Deputy Director Jose Pepito Amores effective September 30, 2002; and (3) directing
the transmission of a copy of the Report of the Fact-Finding Committee to the Civil Service Commission (CSC) in
relation to the complaint filed against the 14 LCP physicians.
Sometime in August 2002, the same physicians, including most of herein individual respondents, issued a
Manifesto5 addressed to President Gloria Macapagal-Arroyo expressing their disenchantment with petitioner whom
they claimed does not deserve to continue holding the position of LCP Executive Director because of his abusive
behavior such as making sarcastic and slanderous remarks to humiliate staff members, accusations against several
doctors allegedly involved in the May 1998 fire which gutted the LCP and his predecessor Dr. Calixto Zaldivar for
alleged anomalous contracts with the Department of Public Works and Highways, immorality (living-in with a mistress
who is a former LCP nurse), unlawful personnel actions (designating his hand-picked staff to key positions and
transferring those occupying such positions to other units or departments without diminution in rank or salary),
harassment of staff members who are not in his good graces, nepotism, and entering into questionable contracts
with suppliers. These acts imputed to petitioner allegedly caused demoralization among the LCP medical staff and
rank and file.
On October 22, 2002, a Complaint-Affidavit was filed before the PAGC by herein individual respondents, 15
physicians of the LCP, containing the same 16 charges subject of the investigation conducted by the Fact-Finding
Committee.6
On September 11, 2002, Executive Secretary Alberto G. Romulo issued Administrative Order (AO) No. 39 directing
the PAGC to conduct a formal investigation against petitioner, ordering his preventive suspension for 90 days, and
authorizing the Secretary of Health to appoint an interim officer-in-charge of the LCP.
AO No. 39 specifically stated that –
The PAGC shall observe the prevailing rules and procedures prescribed under existing Civil Service laws and
regulations, and shall terminate the formal inquiry within ninety (90) days from receipt of this Order.
The PAGC shall, likewise, within twenty (20) days after receipt of the last pleading or evidence, if any, in case
respondent Executive Director Melendres does not elect a formal investigation, or after the termination of the formal
investigation, should respondent Executive Director Melendres elect one, forward to this Office the entire records of
the case together with its findings and recommendations, as well as a draft decision for the approval of the
President.7
Finding sufficient basis to commence an administrative investigation (PAGC-ADM-0112-02), PAGC Hearing
Commissioner Cesar D. Buenaflor issued an Order on November 8, 2002 directing the petitioner to submit within 10
days his Counter-Affidavit/Verified Answer. On November 18, 2002, petitioner submitted his Counter-Affidavit. The
preliminary conference was then set on November 21, 2002.8
At the preliminary conference, petitioner appeared with his counsel. During the continuation of preliminary
conference on November 28, 2002, the parties were directed to submit within five days or until December 4, 2002
their respective Position Paper/Memorandum. The designated hearing officer, Commissioner Buenaflor, likewise
declared that based on the records/pleadings and the position papers submitted, the case shall be deemed
submitted for resolution. Petitioner’s counsel questioned the order and the jurisdiction of the PAGC. Commissioner
Buenaflor advised said counsel to bring the issues raised by him before the proper forum, and reiterated his order for
the parties to file their respective position papers.9
On November 29, 2002, petitioner through counsel filed a Motion for Formal Hearing and/or Investigation, invoking
Section 22 of the Revised Uniform Rules on Administrative Cases in the Civil Service (URACC).10
On even date, petitioner filed a Motion for Inhibition alleging bias and partiality on the part of Commissioner
Buenaflor in terminating the case which deprived him of his right to due process as required by the URACC, which
should be observed and complied with by the said hearing officer.11
In an Order12 dated December 3, 2002, Commissioner Buenaflor denied for lack of merit both motions filed by
petitioner. Complainants submitted their position paper as required. Petitioner did not file a position paper but instead
filed before the CA a petition for certiorari with prayer for temporary restraining order and/or writ of preliminary
injunction. Petitioner argued that the PAGC order is a patent nullity because Commissioner Buenaflor terminated the
proceedings with undue haste, in violation of petitioner’s right to substantive and procedural due process, as it
deprived him of the opportunity to submit a supplemental affidavit for which he had made a reservation, as well as
records and taped proceedings of the Fact-Finding Committee.13
Meanwhile, the PAGC submitted to the OP its investigation report. On February 4, 2003, the OP issued AO No. 59
declaring that the PAGC’s findings and recommendation are in order. Thus, as recommended by the PAGC, the OP
dismissed petitioner from the service, with forfeiture of his leave credits and retirement benefits, and disqualification
from re-employment in the government service, effective immediately upon receipt of the order.14
By Decision dated February 27, 2004, the CA dismissed the petition and affirmed the assailed orders of the PAGC.
The CA held that petitioner’s right to due process was not violated since Section 3, Rule III of the New Rules of
Procedure of the PAGC authorizes the PAGC hearing commissioner to determine whether or not there is a necessity
for conducting formal hearings. Moreover, petitioner was given ample opportunity to present his side and defend
himself when he was required to file his Counter-Affidavit/Verified Answer, he appeared with his counsel in the
preliminary conference held on November 21 and 28, 2002, and he was given the opportunity to submit his Position
Paper/Memorandum. Accordingly, the CA ruled that no grave abuse of discretion was committed by public
respondent Commissioner in issuing the assailed orders.
Petitioner’s motion for reconsideration was likewise denied by the CA in its Resolution dated May 28, 2004.
Hence, this petition setting forth the following arguments:
I.
WITH DUE RESPECT, THE APPELLATE COURT COMMITTED GRAVE ERROR IN DECLARING THAT THE
ORDER ISSUED BY PUBLIC RESPONDENT PAGC DID NOT VIOLATE THE RIGHT OF PETITIONER
MELENDRES TO BE ACCORDED OF HIS CONSTITUTIONALLY GUARANTEED RIGHT TO DUE PROCESS
II.
WITH DUE RESPECT, THE APPELLATE COURT EGREGIOUSLY COMMITTED ERROR IN NOT RECOGNIZING,
AS IN FACT IT IGNORED, THE FACT THAT THE ORDER ISSUED BY RESPONDENT PAGC WAS IN VIOLATION
OF ADMINISTRATIVE ORDER NO. 39 WHICH DIRECTED PAGC TO CONDUCT A FORMAL INVESTIGATION
AND TO OBSERVE THE PREVAILING RULES AND PROCEDURES PRESCRIBED UNDER EXISTING CIVIL
SERVICE RULES AND REGULATIONS, AND SHALL TERMINATE THE FORMAL INQUIRY WITHIN NINETY (90)
DAYS FROM THE RECEIPT OF AO NO. 39.
III.
THE APPELLATE COURT, IN SUSTAINING AND AFFIRMING THE DECEMBER 3, 2003 ORDER OF PAGC
IGNORED, AS IN FACT IT VIRTUALLY CLOSED, ANY OPPORTUNITY FOR PETITIONER MELENDRES TO A
FORMAL HEARING AND TO ADDUCE EVIDENCE IN HIS BEHALF WHEN PUBLIC RESPONDENT PAGC WITH
UNDUE HASTE TERMINATED THE PROCEEDINGS WITHOUT A HEARING AND IGNORED THE PLEA OF
PETITIONER TO SUBMIT A SUPPLEMENTAL AFFIDAVIT IN CLEAR VIOLATION OF THE ELEMENTARY
REQUIREMENTS OF ADMINISTRATIVE DUE PROCESS.
IV.
THE APPELLATE COURT, IN AFFIRMING AND SUSTAINING THE DECEMBER 3, 2003 ORDER OF PAGC,
BLINDED ITSELF TO THE REALITY THAT PAGC DESPOTICALLY, WHIMSICALLY AND CAPRICIOUSLY SWEPT
ASIDE ITS OWN ADMINISTRATIVE INVESTIGATION PARAMETERS EMBODIED IN ITS ORDER OF NOVEMBER
11, 2002, LET ALONE THE DIRECTIVE EMBODIED IN AO NO. 39 MANDATING PAGC TO OBSERVE
PREVAILING RULES AND PROCEDURES PRESCRIBED UNDER CIVIL SERVICE LAWS AND REGULATIONS.
V.
THE APPELLATE COURT, IN PROMULGATING ITS DECISION ALONG WITH ITS RESOLUTION DENYING
PETITIONER MELENDRES’S MOTION FOR RECONSIDERATION, REFUSED TO SEE THE GRAVE ABUSE OF
DISCRETION OF PUBLIC RESPONDENT PAGC IN ISSUING THE ORDER VIOLATING PETITIONER
MELENDRES’S RIGHT TO DUE PROCESS WHEN IT DISREGARDED SECTION 22, RULE II OF THE UNIFORM
RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE.15
The petition has no merit.
Petitioner’s claim that he was denied due process is anchored on Section 22, Rule II of the URACC, which provides:
SEC. 22. Conduct of Formal Investigation. – Although the respondent does not request a formal investigation, one
shall nevertheless be conducted by the disciplining authority where from the allegations of the complaint and the
answer of the respondent, including the supporting documents of both parties, the merits of the case cannot be
decided judiciously without conducting such investigation.
The investigation shall be held not earlier than five (5) days nor later than ten (10) days from receipt of the
respondent’s answer. Said investigation shall be finished within thirty (30) days from the issuance of the formal
charge, or the receipt of the answer unless the period is extended by the disciplining authority in meritorious cases.
For this purpose, the Commission may entrust the formal investigation to lawyers of other agencies pursuant to
Section 79.
The URACC, however, does not preclude the adoption of procedural rules for administrative cases by other
government agencies. This is evident from Section 2, Rule I thereof, which states in part:
SEC. 2. Coverage and Definition of Terms. – These Rules shall be applicable to all cases brought before the Civil
Service Commission and other government agencies, except where a special law provides otherwise. (Emphasis
supplied.)
Executive Order (EO) No. 12 issued on April 16, 2001 created the PAGC which replaced the Presidential
Commission Against Graft and Corruption (PCAGC) established under EO No. 151 (both offices now defunct). EO
No. 12 authorized the PAGC to investigate presidential appointees and non-presidential appointees who may have
acted in conspiracy with such presidential appointees. Pursuant to Section 17 of EO No. 12, the PAGC promulgated
on March 14, 2002 its New Rules of Procedure to govern the investigations conducted by the Commission En Banc
and Panel of Hearing Officers.
The pertinent rules on the investigation of formal complaints are found in Rule III of the PAGC New Rules of
Procedure, as follows:
Section 1. How Respondent Charged. – Where a prima facie case is determined to have been established, the
respondent shall be required, through an ORDER, to file his or her counter-affidavit/verified answer (not a Motion to
Dismiss or Motion for Bill of Particulars) to the charges against him or her, furnishing him or her with copies of the
complaint, the sworn statements and other documents submitted by the complainant.
Respondent is given an inextendible period of ten (10) days from receipt of the Order to file his Counter-
Affidavit/verified Answer (not a Motion to Dismiss or Motion for Bill of Particulars), together with the affidavits of his or
her witnesses and other documents in his or her defense and proof of service on the complainant or his or her
counsel.
Any motion to dismiss or for a bill of particulars that may be filed shall be expunged from the records, and the filing
thereof shall not suspend the proceedings nor the period for the filing of the respondent’s Counter-Affidavit/verified
Answer.
The filing or submission of reply-affidavits and/or rejoinders shall not be required or allowed except where new issues
of fact or questions of law which are material and substantial in nature are raised or invoked in the counter-affidavit
or subsequent pleadings and there exists a need for said issues or questions to be controverted or rebutted, clarified
or explained to enable the Commission to arrive at a fair and judicious resolution of the case.
If allowed or required by the Commission, the period for the submission of reply affidavits or rejoinders shall not
exceed five (5) days.
Sec. 2. Failure to file Response. – The respondent’s failure to file his Counter-Affidavit/verified Answer within the
ten (10) day period given him or her shall be considered a waiver of his or her right to file the same and to present
evidence in his or her behalf, and the Commissioner assigned shall recommend the appropriate action to the
Commission, on the basis of the complaint and documents on record.
Sec. 3. Action After Respondent’s Response. – If upon evaluation of the documents submitted by both parties, it
should appear either that the charge or charges have been satisfactorily traversed by the respondent in his Counter-
Affidavit/verified Answer, or that the Counter-Affidavit/verified Answer does not tender a genuine issue, the
Commissioner assigned shall forthwith, or after a clarificatory hearing to ascertain the authenticity and/or significance
of the relevant documents, submit for adoption by the Commission the appropriate recommendation to the President.
The Commissioner assigned may, at his sole discretion, set a hearing to propound clarificatory questions to the
parties or their witnesses if he or she believes that there are matters which need to be inquired into personally by him
or her. In said hearing, the parties shall be afforded the opportunity to be present but without the right to examine or
cross-examine. If they so desire, they may submit written questions to the Commissioner assigned who may
propound such questions to the parties or witnesses concerned. Thereafter, the parties be required, to file with the
Commission, within an inextendible period of five (5) days, and serve on the adverse party his verified Position
Paper.
Sec. 4. Summary Resolution After Preliminary Conference. – Should it be determined prior to the first hearing
date, that the issues can be resolved without need for setting the case for clarificatory questioning, the Commissioner
assigned shall forthwith, submit for adoption by this Commission, the appropriate recommendation to the
President.15-a (Underscoring and boldfacing of headings in the original; italicization and other boldfacing supplied.)
In this case, petitioner as directed submitted his Counter-Affidavit within the ten-day period given by Commissioner
Buenaflor in his Order dated November 21, 2002 during the preliminary conference where petitioner appeared with
his counsel. In the same order, the complainants were given three days to submit their Reply to the Counter-Affidavit
if they deemed it necessary, and the respondent was granted a similar period within which to submit his Rejoinder to
the Reply, if there is any. On November 28, 2002, during the continuation of the preliminary conference, since there
was no Reply filed by the complainants, Commissioner Buenaflor directed the parties to submit their respective
Position Paper/Memorandum within five days or until December 4, 2002, and declared that based on the
records/pleadings and the Position Papers to be submitted, the case shall be deemed submitted for resolution.
Commissioner Buenaflor observed the procedure laid down in the 2002 PAGC New Rules of Procedure and
exercised his discretion not to conduct further hearings for clarificatory questions after finding from the pleadings and
evidence submitted by the parties, that a hearing for clarificatory questions is not necessary. Petitioner failed to show
that such act of Commissioner Buenaflor submitting the case for resolution on the basis of the records/pleadings and
the Position Papers, was tainted with grave abuse of discretion. In the same vein, no grave abuse of discretion
attended the denial of petitioner’s Motion for Formal hearing and/or Investigation, in which petitioner invoked Section
22 of the URACC. It may be noted that under the 2007 PAGC Rules of Procedure, the Commission is also allowed,
after the submission of the Answer by the respondent or conduct of hearing for clarificatory questions, to require the
parties to submit position papers to argue their case.16
As to the Motion for Inhibition of Commissioner Buenaflor, the same is grounded on his earlier order submitting the
case for resolution on the basis of pleadings on record and position papers. Said motion was properly denied as no
iota of evidence had been adduced by the petitioner to substantiate his allegation of bias and partiality. Indeed, bias
and partiality cannot be presumed.17 Mere suspicion of partiality is not enough. There should be hard evidence to
prove it, as well as manifest showing of bias and partiality stemming from an extrajudicial source or some other
basis.18
Petitioner nonetheless asserts that the assailed order was contrary to the directive in AO No. 39 which specifically
recognized his right to elect a formal investigation. Having requested for such formal investigation, petitioner claims
the PAGC violated his right to due process when it denied his motion for a formal investigation.
We are not persuaded.
Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. It is
satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In
administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to
answer the accusations against him constitute the minimum requirements of due process. More often, this
opportunity is conferred through written pleadings that the parties submit to present their charges and defenses.19But
as long as a party is given the opportunity to defend his or her interests in due course, said party is not denied due
process.20
As this Court held in Medina v. Commission on Audit21 :
As correctly pointed out by the OSG, the denial of petitioner’s request for a formal investigation is not tantamount to a
denial of her right to due process. Petitioner was required to file a counter-affidavit and position paper and later on,
was given a chance to file two motions for reconsideration of the decision of the deputy ombudsman. The essence of
due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the
action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is
rendered, the demands of due process are sufficiently met.22 (Emphasis supplied.)
Since petitioner was given the opportunity to defend himself from the charges against him, as in fact he submitted a
Counter-Affidavit with the PAGC, though he failed to comply with the order for the submission of position paper, he
cannot complain of denial of due process. It may be noted that while petitioner in his Counter-Affidavit made a
reservation to submit a supplemental counter-affidavit because he was supposedly still in the process of completing
the review of all documents including the tape recording of the proceedings of the Fact-Finding Committee and the
sworn statements given by the witnesses to provide details of his defense, said reservation was conditioned on
whether the stenographic notes will be made available at all "after the review and completion of the review and
evaluation of the proceedings by the Committee Investigator." However, as mentioned in the same pleading,
petitioner’s request for a copy of the transcript of stenographic notes was already denied by the Chairman of the
Fact-Finding Committee under the letter dated November 11, 200223 which stated that the Committee never took
stenographic notes in the course of its investigation. Moreover, the Committee had long completed its investigation
as in fact the Final Report on its findings and recommendations became the basis of the LCP Board of Trustees
Resolution dated August 23, 2002 adopting the Committee’s findings and recommendations.
We note that in AO No. 59 imposing the penalty of dismissal on petitioner, the OP found no error or abuse committed
by the PAGC in issuing the assailed orders, thus:
PAGC correctly denied respondent Executive Director Melendres’ motions for a formal hearing and for inhibition. A
formal hearing is not a mandatory requirement of due process in administrative proceedings. One may be heard not
solely by verbal presentation, but also and perhaps even many times creditably and practicably than oral argument,
through pleadings. Thus, it is enough that the parties are given the opportunity to be heard by means of the
submission of pleadings, memoranda and/or position papers. In fact, aside from counter-affidavit, respondent
Executive Director Melendres was also required by PAGC to submit his position paper but he failed to do so. Such
failure amounts to a waiver to present additional evidence on his behalf. It is, therefore, puzzling why respondent
Executive Director was asking for a full-blown formal hearing when he could not even submit a position paper.
Moreover, in his counter-affidavit, respondent Executive Director Melendres admitted that "the same complaint
subject of this case had already been investigated, reviewed, evaluated, heard, and terminated by the Fact-Finding
Committee created by Secretary Manuel M. Dayrit of the Department of Health". Thus, one may validly ask why
respondent Executive Director Melendres wanted another full-blown investigation. Undoubtedly, the inescapable
conclusion that can be made from the filing of the motion for a formal hearing is that respondent Executive Director
Melendres was merely buying time by trying to prolong the disposition of the case in order to unduly perpetuate
himself as the head of the Lung Center of the Philippines.
On the other hand, the denial of the motion for inhibition against Commissioner Cesar Buenaflor for alleged bias and
impartiality is in order considering that the grounds adduced are not grounds for mandatory disqualification or
inhibition of judges. Rule 137, Section 1 of the Rules of Court enumerates the grounds for the absolute
disqualification of judges, x x x
xxxx
The rule enumerates the grounds under which a judge is legally disqualified from sitting in a case, and excludes all
other grounds not specified therein. The judge may, however, "in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than those mentioned above. Hence, the decision to
inhibit is left to the sound discretion of the judge himself. No one has the right to supplant the exercise of such
discretion provided the exercise of the same is devoid of grave abuse.24
As to petitioner’s contention that the PAGC should not have entertained the affidavit-complaint filed on October 22,
2002 as it is a "brand new" complaint which was not that indicated by AO No. 39, suffice it to state that the said
affidavit-complaint merely reiterated the charges for which petitioner was already investigated by the Fact-Finding
Committee created by the Secretary of Health. Petitioner being a presidential appointee, the OP is the disciplining
authority which can properly impose disciplinary actions on him; hence, it is the OP through AO No. 39 which
ordered his preventive suspension pending investigation on the same charges against him by the PAGC. There was
no "new" complaint because the respondent-physicians simply instituted a formal complaint, this time before the OP
which is by law the disciplining authority over presidential appointees, the DOH being merely the investigating
authority.
Initiation of administrative complaints before the PAGC is provided for in Section 1, Rule II of the PAGC New Rules
of Procedure, which states:
Section 1. Administrative Charge; How Initiated. – An administrative charge within the jurisdiction of the
Commission may be initiated and prosecuted by:
(a) written complaint under oath accompanied by affidavits of witnesses and other evidences in support of the
charge(s), or
(b) upon written charge by the disciplining authority.
In this case, the administrative charge against petitioner was initiated under both (a) and (b), the complainant-
physicians having filed their own formal complaint after the OP had issued AO No. 39 ordering that petitioner be
investigated on those charges for which the LCP Board of Trustees had found prima facie evidence of his culpability
based on the findings and recommendations of the Fact-Finding Committee. Notably, the allegations set forth in the
Affidavit-Complaint filed on October 22, 2002 and the LCP Board of Trustees Resolution are practically the same.
The PAGC can thus properly take cognizance of the findings and evidence submitted in both written
complaints/charges.
Finally, we find no merit in petitioner’s suggestion that in the disposition of this case, the dismissal of the following
criminal complaints should be considered: (1) Criminal Case No. SB 08-CRM-0282 for Falsification of Public
Documents under Article 171(6) of the Revised Penal Code, as per Resolution25 dated June 2, 2010 of the
Sandiganbayan’s Fourth Division granting petitioner’s demurrer to evidence based on insufficiency of evidence; (2)
Criminal Case No. SB 08-CRM-0281 dismissed for lack of probable cause as per the Minutes26 of the proceedings of
the Third Division held on June 16, 2008, and Memorandum27 dated July 2, 2008 of the Office of the Special
Prosecutor, Office of the Ombudsman; (3) OMB-C-C-02-0507-I for Violation of Executive Order No. 301 (1987),
Section 3, Implementing Rules and Regulations of EO No. 262 and Section 3(a) of Republic Act (R.A.) No. 3019, as
amended, as per Resolution28 dated April 8, 2003; and (4) Memorandum29 dated June 4, 2007 of the Office of the
Special Prosecutor in OMB-C-C-03-0258-D approving the recommendation of Assistant Special Prosecutor II Ma.
Christina T. Marallag for the dismissal of several charges constituting Violation of Section 3(e) of R.A. No. 3019, and
Article 171, paragraph 6 of the Revised Penal Code (RPC), except for Falsification of Public Documents under Article
171, RPC "for making an erasure in the Purchase Order dated December 21, 2001 by erasing the word ‘EXCLUSIVE
DISTRIBUTOR’ and changing it with the word ‘CANVASS’ to make it appear that it is the mode of procurement of the
presidential banner, when in truth and in fact no canvass was conducted."
We have ruled that dismissal of a criminal action does not foreclose institution of an administrative proceeding
against the same respondent, nor carry with it the relief from administrative liability.30 It is a basic rule in
administrative law that public officials are under a three-fold responsibility for a violation of their duty or for a wrongful
act or omission, such that they may be held civilly, criminally and administratively liable for the same act.
Administrative liability is thus separate and distinct from penal and civil liability.31
Moreover, the fact that the administrative case and the case filed before the Ombudsman are based on the same
subject matter is of no moment. It is a fundamental principle of administrative law that the administrative case may
generally proceed against a respondent independently of a criminal action. for the same act or omission and requires
only a preponderance of evidence to establish administrative guilt as against proof beyond reasonable doubt of the
criminal charge.32 Accordingly, the dismissal of two criminal cases by the Sandiganbayan and of several criminal
complaints by the Ombudsman did not result in the absolution of petitioner from the administrative charges.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated February 27, 2004 and Resolution
dated May 28, 2004 of the Court of Appeals in CA-G.R. SP No. 74272 are AFFIRMED and UPHELD. With costs
against the petitioner.
SO ORDERED.
G.R. No. 194368 April 2, 2013
CIVIL SERVICE COMMISSION, Petitioner,
vs.
ARLIC ALMOJUELA, Respondent.
PERLAS-BERNABE,*
DECISION
BRION, J.:
We resolve the Civil Service Commission's (CSC) appeal by certiorari seeking the reversal of the Court of Appeals'
(CA) amended decision1 in CA-G.R. SP No. 106258. The assailed decision partly granted the respondent SJO2 Arlic
Almojuela's (SJO2 Almojuela) Motion for Reconsideration from the CA’s original decision,2 affirming its finding that
SJO2 Almojuela is guilty of gross misconduct.
Factual Antecedents
The present administrative case, filed against Desk Officer/ Supervisor SJO2 Almojuela, sprang from the escape of a
detention prisoner in the Makati City Jail.
Tony Lao’s escape
At six’o clock in the morning of December 13, 2003, Ding Cang Hui a.k.a. Tony Lao / Tony Ling (Lao), a Chinese
inmate charged with violation of Republic Act No. 6425 (the Dangerous Drugs Act) was discovered to have escaped
from his cell at the Makati City Jail. The following officers of the Bureau of Jail Management and Penology (BJMP) –
National Capital Region Office (NCRO) were on third shift custodial duty when Lao escaped: J/C INSP Pepe
Quinones (J/C INSP Quinones); SJO2 Arvie Aquino JMP (SJO2 Aquino), officer of the day; SJO2 Arlic Almojuela
JMP (SJO2 Almojuela), desk officer / supervisor; SJO1 Jose Rodney Lagahit JMP (SJO1 Lagahit), desk reliever;
JO1 Eric Manuel Palileo (JO1 Palileo), duty nurse; JO1 Rommel Robles JMP (JO1 Robles), gater; JO1 Manuel
Loyola, Jr. (JO1 Loyola), gater; JO1 Reynaldo Pascual JMP (JO1 Pascual), cell guard and JO1 Jaime Ibarra (JO1
Ibarra), roving guard.3
Based on testimonies cited in Civil Service Resolution No. 0807014 and the Court of Appeals’ decision, the facts
outlined below led to Lao’s escape.
At about 11:00 p.m., SJO2 Aquino made a headcount of the inmates in the Makati City Jail, ensured every cell was
padlocked, and instructed SJO2 Almojuela (the desk officer on duty) to dispatch the personnel to their respective
areas of responsibilities.5
Thirty minutes later, inmate Florencio Jacinto (Jacinto) saw Cabidoy, an inmate charged with opening and closing the
cell gates, open Cell Number 8. Lao came out and Jacinto never saw him return to his cell.6
Soon after Jacinto saw Lao walk out of Cell Number 8, JO1 Loyola (the gater at the Main Gate) saw Lao at the front
desk talking to SJO2 Almojuela and JO1 Pascual. According to JO1 Loyola, SJO2 Almojuela ordered him and JO1
Pascual to buy food outside the jail premises.7 SJO1 Robles, another gater at the main gate, saw the two leave the
compound at around 11:45PM. SJO1 Robles then saw Lao, Cabidoy and another inmate conversing at the Desk
Area. SJO1 Robles were about to approach the three inmates to caution them, but upon seeing SJO1 Lagahit at the
desk area, he went back to his post. JO1 Pascual and JO1 Loyola returned to the compound at around 12:30 a.m.;
upon arrival, JO1 Loyola asked JO1 Robles "nandyan na si Warden (Chief Inspector Quinones)?", to which the latter
replied "tulog na si sir." JO1 Robles observed that JO1 Pascual was hiding something bulky in his uniform.8
In his defense, SJO2 Almojuela asserted that JO1 Loyola and JO1 Pascual went out of the jail compound without his
permission. He also testified seeing JO1 Pascual and Lao together at around 12 midnight, while Lao was using JO1
Pascual’s celfone.9 Lao’s use of JO1 Pascual’s celfone was corroborated by SJO1 Robles’s testimony, who also said
that JO1 Loyola’s phone kept on ringing or alerting for text messages. It was not clear from SJO1 Robles’s testimony
if JO1 Loyola was with JO1 Pascual and Lao at that time.
Roughly twenty minutes after Lao was seen using JO1 Pascual’s celfone, JO1 Loyola ordered inmate Cabidoy to go
to sleep, while JO1 Pascual took the keys to the jail cells from Cabidoy.10
At around 1:15 a.m., inmate Juan Mogado, Lao’s former cellmate, saw Lao for the last time, when the latter bought
₱20.00 worth of Marlborro cigarettes from the store he was tending.11
Fifteen minutes later, at about 1:30 a.m., SJO1 Robles testified that JO1 Loyola took the gate keys for the vehicular
and visitor entrance and told him "Sige pahinga ka muna, mamaya ko na ibigay sa iyo mga 3:00."12
Between 1 to 1:30 a.m., Joan Panayaman, Almojuela’s househelp, saw JO1 Loyola and JO1 Pascual together while
she was heading for the comfort room. As she approached them, Panayaman overheard JO1 Pascual talking over
the cellphone saying "Bago namin ilabas ito, magdagdag muna kayo ng isang milyon." JO1 Pascual then toned
down his voice and entered his room, while JO1 Loyola walked towards the jail area. She went up to SJO2
Almojuela’s room, but found it locked. While going downstairs, she saw JO1 Loyola walking towards the gate with a
man; a few minutes later, JO1 Loyola returned without the man.13
According to SJO2 Almojuela, he went to his barracks at around 1:20 a.m. and returned at around 1:30 a.m.14 This is
contradicted by SJO1 Lagahit’s testimony, which asserts that SJO2 Almojuela left the front desk at around 1 a.m.
and returned only at 3 a.m.15 At around the same time, inmate Jerwin Mingoy (Mingoy) testified that SJO2 Almojuela
ordered him to get food at cell number 8 and set the table for the 3rd shift personnel.16 It must be noted, however,
that SJO1 Loyola saw the members of the 3rd shift personnel take their meal some time between 12 a.m. to 1
a.m.,17 while inmate Cabidoy cooked their meal at around 11:45 a.m.18
Between 2:00 to 3:00 a.m., JO1 Loyola said he saw that the desk area was unmanned and the control gate of the
detention cells open; he then gave the keys in his possession to JO1 Robles and went to the infirmary.19 JO1 Loyola
did not explain his whereabouts between 1:00 to 2:00 a.m.
SJO1 Lagahit testified that he conducted a roving inspection at around 2:30 a.m., and saw JO1 Loyola going to the
infirmary where JO1 Palileo was assigned. He also saw SJO1 Pascual sitting in front of the gate of Cell Number 8,
where Lao was billeted.20 By 2:45 a.m., JO1 Robles said he woke up to find that the keys earlier taken by JO1 Loyola
were already on his belly.21
At around 3 a.m., inmate Mingoy saw Lao talking to JO1 Palileo at the Desk Area.22 By 3:30 a.m., SJO2 Aquino left
the female brigade area; while on her way to the Desk Officer’s lounge, she saw the following: (1) SJO2 Almojuela
sleeping on a folding chair; (2) JO1 Palileo sleeping in the infirmary; (3) SJO1 Lagahit watching TV; 4) both control
gates 1 and 2 were open; and (5) JO1 Pascual was standing inside control gate number 2.23
By 5:30 a.m., several BJMP officers saw Chief Inspector Quinones leave the jail compound aboard his car. News
broke out in the jail facility that Lao was missing at around the same time.24 Lao surreptitiously left the Makati City
Jail and brought along with him his possessions, including a trophy he won at a pingpong match inside the prison.25
Two days after Lao’s escape, Supt. Edgar C. Bolcio, who replaced Chief Inspector Quinones, conducted a search
and inspection of the barracks of the jail personnel suspected to be involved in Lao’s escape. This resulted in the
recovery of 10 keys from SJO2 Almojuela’s barracks, one of which matched the padlock of the main gate.26
The National Bureau of Investigation (NBI) subsequently conducted polygraph tests on JO1 Pascual and SJO2
Almojuela. According to the NBI, JO1 Pascual and SJO2 Almojuela’s responses were "indicative of deceptions
occurred at relevant questions". When confronted and interrogated by the NBI, the two could not satisfactorily explain
the polygraph tests’ results.27
The BJMP’s Investigation Report
A BJMP Investigation Report conducted on the incident concluded that SJO2 Almojuela and the rest of the jail
officers on third shift custodial duty all colluded to facilitate Lao’s getaway.28 Based on the report’s recommendation,
the Intelligence and Investigation Division of the BJMP filed an administrative complaint against the abovementioned
BJMP/NCRO members.29 In Administrative Case No. 04-11, CESO IV Director Arturo Walit, the BJMP hearing
officer, rendered his decision dated December 13, 2005,30 finding the following liable:
First, SJO2 Almojuela and JO1 Loyola were found guilty of Grave Misconduct and were meted the penalty of
dismissal from the service.
Second, SJO2 Aquino, SJO1 Lagahit and JO1 Robles were found guilty of Less Serious Neglect of Duty and were
meted the penalty of Suspension with forfeiture of salaries and allowances for six months.
Third, CINSP Quinones was found guilty of Neglect of Duty and was meted the penalty of Fine equivalent to four
months salary; he had since retired from the service.
Fourth, JO1 Pascual, while not absolved of administrative liability, could no longer be penalized as the administrative
proceedings began long after his separation from the service.
Fifth, JO1 Palileo and JO1 Ibarra were exonerated.
SJO2 Almojuela and JO1 Loyola moved for the reconsideration of Director Walit’s decision, which the latter denied
for lack of merit in a Joint Resolution dated June 21, 2006. SJO2 Almojuela then appealed his conviction before the
Civil Service Commission (CSC), which affirmed Director Walit’s decision in its Resolution No. 080701. The CSC
subsequently denied SJO2 Almojuela’s motion for reconsideration.31
The Appellate Court’s ruling
SJO2 Almojuela’s next recourse was a petition for review before the Court of Appeals. He assailed the CSC’s
decision for the following reasons: First, SJO2 Almojuela claimed to have been denied due process because he was
not accorded the benefit of a full-blown trial. Second, SJO2 Almojuela asserted that he was denied equal protection
of the laws because lesser penalties were imposed on his co-workers. Third, SJO2 Almojuela argued that the
evidence on record was insufficient to support his dismissal from the service.32
The CA denied SJO2 Almojuela’s petition.33 According to the CA, SJO2 Almojuela was provided the due process
required in administrative proceedings when he was given the opportunity to answer the accusations against him. He
was fully informed of the charges against him, and did file a counter-affidavit, motions for reconsideration, a notice of
appeal, and a memorandum of appeal, where he narrated his side of the story.
Further, SJO2 Almojuela’s claim that he was denied equal protection of the laws because his co-workers were
sentenced to lesser penalties has no legal basis. Citing Abakada Guro Partylist v. Purisima,34 the CA pointed out that
the equality guaranteed under the equal protection clause is equality under the same conditions and among persons
similarly situated; when persons are under different factual circumstance, they may be treated differently.
In this case, the CA held that SJO2 Almojuela was handed the proper penalty, because next only to the warden, he
was the highest-ranking officer in the Makati City Jail at the time Lao escaped. It was incumbent upon him to oversee
the whole jail compound’s security, and ensure that all jail personnel performed their respective tasks. His failure to
do so deserved a greater penalty than those who were under his command.
Lastly, the CA gave no credit to SJO2 Almojuela’s claim that the lack of a hearing and the BJMP’s bias against him
rendered his dismissal illegal. It held that the presumption of regularity in the performance of Director Alit’s duty as
disciplining authority should prevail over SJO2 Almojuela’s bare and unsupported allegations. Further, Director Alit’s
decision was based on substantial evidence – testimonies of SJO2 Almojuela’s colleagues on duty that night showed
the following laxities in the implementation of jail rules:
(1) SJO2 Almojuela was seen sleeping in a folding chair;
(2) Control gates 1 and 2 were open;
(3) SJO2 Almojuela and JO1 Pascual were seen conversing with Lao at the desk area;
(4) SJO2 Almojuela ordered JO1 Loyola and JO1 Pascual to go out of the compound and to buy food;
(5) Lao and the other inmates were seen loitering around the jail premises when all of them should have been inside
their respective cells;
(6) The recovered keys from SJO2 Almojuela’s makeshift cubicle fit the padlock in the main gate for vehicles;
(7) Persons other than gatekeepers JO1 Robles and JO1 Loyola had access to the keys of the respective gates
assigned to them.
The Appellate Court’s Amended Decision
The appellate court partially granted35 SJO2 Almojuela’s motion for reconsideration, and lowered his liability from
grave to simple misconduct. Applying Section 54(b), Rule IV of the Uniform Rules on Administrative Cases in Civil
Service,36 SJO2 Almojuela was meted the penalty of three months suspension as there was neither any attendant
mitigating nor aggravating circumstance.
Citing Civil Service Commission v. Lucas,37 the CA held on reconsideration that misconduct, to be considered grave,
must involve the additional elements of corruption or willful intent to violate the law or disregard of established rules;
otherwise, the misconduct is only simple.
The CA found no corrupt motive or willful intent on SJO2 Almojuela’s part to violate the BJMP Rules and
Regulations. No clear evidence was presented to show that SJO2 Almojuela was directly involved in the prison
break, nor was it proven that he benefited from it. SJO2 Almojuela likewise did not willfully trifle with the BJMP Rules
and Regulations. While Lao was allowed to leave his cell, he was accompanied by the roving guard, JO1 Pascual, at
all times. Considering the presumption that JO1 Pascual was regularly performing his duty, SJO2 Almojuela had no
reason to believe that Lao would escape because he was under the jail guard’s watch. Further, SJO2 Almojuela was
seen sleeping on duty only once; since SJO2 Aquino and SJO1 Lagahit (who were with him) were awake at that
time, his lapse could not be considered to be sufficiently grave or serious to warrant his dismissal from the service.
The Present Petition
The CSC asserts in its present petition that the CA should not have had disturbed the CSC’s findings, as conclusions
of administrative bodies charged with their specific field of expertise are generally afforded great weight by the
courts.38 SJO2 Almojuela’s conviction is supported by evidence on record, and sufficiently satisfied the substantial
evidence standard. Taken together, the testimonies submitted during the BJMP investigation establish that SJO2
Almojuela connived with JO1 Pascual, JO1 Loyola and Lao to facilitate the latter’s escape. Even assuming that SJO2
Almojuela had no knowledge of the plan, he could have easily discovered and prevented the escape had he been
awake and alert.
According to the CSC, a jail guard’s act of sleeping while at his post on night-shift duty constitutes grave misconduct
because it is a flagrant disregard of BJMP’s policy that a jail officer should stay vigilant during his shift. In SJO2
Almojuela’s case, this was aggravated by his rank – next only to the warden, he was the highest-ranking jail officer
on duty. As shift supervisor, it was incumbent upon him to be awake at all times to fully oversee the jail compound’s
security and to ensure that all the other jail officers were performing their tasks.
Lastly, the CSC pointed out that Grave Misconduct could not be mitigated by the accused’s first time offender status
or by his length of service. Section 52, Rule IV the of Civil Service Commission Memorandum Circular No. 19-
9939provides that the first offense constituting grave misconduct already warrants the penalty of dismissal.
In his Comment,40 SJO2 Almojuela reiterated the line the Court of Appeals took in its amended decision, and
additionally raised the following arguments: first, the certificate of non-forum shopping, instead of having been signed
by the CSC, was signed by the assistant solicitor general, in violation of the rule on certification against forum
shopping; second, the CSC is not the proper party to appeal the CA’s decision; and third, SJO2 Almojuela had been
deprived of due process during the BJMP investigation, as he was not given the opportunity to submit his evidence
and to present his witnesses while the prosecution was allowed to adduce its evidence under a trial-type
arrangement.
Issues
The parties’ arguments, properly joined, present to us the following issues:
1) Whether the CSC’s petition for review on certiorari should be dismissed for failure to comply with Section 4, Rule
45 of the Rules of Court;
2) Whether the CSC’s petition for review on certiorari should be dismissed as the CSC is not the proper party to
appeal the CA’s amended decision;
3) Whether SJO2 Almojuela had been deprived of due process when he was not allowed to present his evidence and
witnesses during the BJMP investigation;
4) Whether SJO2 Almojuela connived with JO1 Loyola and JO1 Pascual to facilitate Lao’s escape from the Makati
City Jail; and
5) Whether SJO2 Almojuela’s actions constitute gross misconduct.
The Court’s Ruling
We first rule on the procedural issues SJO2 Almojuela posed.
The CSC’s petition failed to comply with
Section 4, Rule 45 of the Rules of Court
As SJO2 Almojuela correctly pointed out, the CSC’s petition failed to comply with Section 4, Rule 45 of the Rules of
Court,41 when its certificate against forum shopping was signed by Associate Solicitor General Sharon E. Millan-
Decano; it was not signed by the CSC nor by the BJMP’s authorized representatives.
The consequences of this mistep are prejudicial to the party filing the pleading. Section 5, Rule 45 of the Rules of
Court provides that a petition for review that does not comply with the required certification against forum shopping is
a ground for its dismissal.42 This certification must be executed by the petitioner, not by counsel. It is the petitioner,
and not always the counsel whose professional services have been retained only for a particular case, who is in the
best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification
against forum shopping by counsel is a defective certification. It is equivalent to non-compliance with the requirement
under Section 4, Rule 45 and constitutes a valid cause for dismissal of the petition.43
In Pascual v. Beltran,44 we affirmed the CA’s dismissal of the petition for certiorari before the appellate court because
it was the Solicitor General, not the petitioner, who signed the certification against forum shopping.
However, there have been instances when the demands of substantial justice convinced us to apply the Rules
liberally by way of compliance with the certification against forum shopping requirement;45 the rule on certification
against forum shopping, while obligatory, is not jurisdictional. Justifiable cirsumtances may intervene and be
recognized, leading the Court to relax the application of this rule.46
In People of the Philippines v. de Grano et. al.,47 for instance, we permitted the private prosecutor to sign the
certification in behalf of his client who went into hiding after being taken out of the witness protection program. This is
the case that the OSG invoked in the certification against forum shopping signed by Associate Solicitor Millan-
Decano who stated in her footnote that "Pursuant to People v. de Grano (G.R. No. 167710, June 5, 2009), the
handling lawyers of the OSG may sign verification and certificate of non-forum shopping."48
A reading of People of the Philippines v. de Grano et. al., a decision from the Third Division of the Supreme Court,
shows that it cannot be used to support the OSG’s conclusion.
De Grano affirms a long line of Supreme Court decisions where the Court allowed the liberal application of the rules
on certification against forum shopping in the interest of substantial justice. But to merit the Court’s consideration, the
petitioner(s) must show reasonable basis for its/their failure to personally sign the certification. They must convince
the Court that the petition’s outright dismissal would defeat the administration of justice. One of the cases cited in
Grano was City Warden of the Manila City Jail v. Estrella, a case decided by the Second Division of this Court, which
allowed the Solicitor General to sign the verification and certification of non-forum shopping in a petition before the
CA or with this Court. The decision held that certification by the OSG constitutes substantial compliance with the
Rules, considering that the OSG is the legal representative of the Government of the Republic of the Philippines and
its agencies and instrumentalities.
In Hon. Constantino-David et. al. v. Pangandaman-Gania,49 an En Banc decision, we clarified the application of City
Warden of the Manila City Jail v. Estrella,50 and held that this case does not give the OSG the license to sign the
certification against forum shopping in behalf of government agencies at all times. We explained that the reason we
authorized the Solicitor General to sign the certification against forum shopping is because it was then acting as a
‘People’s Tribune,’ an instance when the Solicitor takes a position adverse and contrary to the Government’s
because it is incumbent upon him to present to the Court what he considers would legally uphold government’s best
interest, although the position may run counter to a client's position; in this case, the Solicitor General appealed the
trial court’s order despite the City Warden’s apparent acquiesance to it and in the process took a position contrary to
the City Warden’s.
The rule is different when the OSG acts as a government agency’s counsel of record. It is necessary for the
petitioning government agency or its authorized representatives to certify against forum shopping, because they, and
not the OSG, are in the best position to know if another case is pending before another court. The reason for this
requirement was succinctly explained in Hon. Constantino-David et. al. v. Pangandaman-Gania:
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 does not automatically vest the OSG with the authority to execute in its name the certificate of
non-forum shopping for a client office. In some instances, these government agencies have legal departments which
inadvertently take legal matters requiring court representation into their own hands without the OSG’s intervention.
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 OSG’s 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.51
To be sure, there may be situations when the OSG would have difficulty in securing the signatures of government
officials for the verification and certificate of non-forum shopping. But these situations cannot serve as excuse for the
OSG to wantonly undertake by itself the verification and certification 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 simply citing cases where the Court allowed the OSG to sign the
certification. In Hon. Constantino-David et. al. v. Pangandaman-Gania, the Court dealt with this situation and
enumerated the following requirements before the OSG can undertake a non-forum shopping certifications as
counsel of record for a client agency:
(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.52
Under these principles, the CSC’s petition for review on certiorari before this Court is defective for failure to attach a
proper certification against forum shopping. In the certificate, the associate solicitor merely stated that she has
prepared and filed the petition in her capacity as the petition’s handling lawyer, and citing People v. Grano, claimed
that the OSG’s handling lawyers are allowed to verify and sign the certificate of non-forum shopping. No explanation
was given why the signatures of the CSC’s authorized representatives could not be secured.
Despite this conclusion, we cannot turn a blind eye to the meritorious grounds that the CSC raised in its petition, and
to the reality that the administration of justice could be derailed by an overly stringent application of the rules. Under
the present situation and in the exercise of our discretion, we resolve to overlook the procedural defect in order to
consider the case on the merits. We carefully note in doing this that our action does not substantially affect the due
process rights of the respondent, nor does it involve a jurisdictional infirmity that leaves the Court with no discretion
except to dismiss the case before us.53 In other words, no mandatory duty on the part of the Court is involved; we are
faced with a situation that calls for the exercise of our authority to act with discretion. In the exercise of this
discretion, we have deemed it more prudent, as a matter of judicial policy in the present situation, to encourage the
hearing of the appeal on the merits rather than to apply the rules of procedure in a very rigid, technical sense that
impedes the cause of justice.54
Our approach is a reminder that the rules of procedure are mere tools designed to facilitate the attainment of justice.
Their strict and rigid application tending to frustrate, rather than promote substantial justice, must always be
avoided.55 The emerging trend in the rulings of this Court is to afford every party litigant with a facially meritorious
case the amplest opportunity for the proper determination of his or her cause, free from the constraints of
technicalities.56 It is a far better and more prudent course of action for the court to excuse a technical lapse and
afford the parties the review of a meritorious case on appeal rather than dispose of the case on technicalities and
cause a grave injustice; the latter course of action may give the impression of speedy disposal of cases, but can only
result in more delay and even miscarriage of justice.57
Our liberal application of the Rules of Court in this case does not however mean that the OSG can cite this Decision
as authority to verify and sign the certification for non-forum shopping in behalf of its client agencies. The OSG
should take note of our decision in the cited Hon. Constantino-David et. al. v. Pangandaman-Gania for the requisites
to be satisfied before it can verify and sign the certificate of non-forum shopping for its client agencies. Rather than
an authority in its favor, this Decision should serve as a case showing that the OSG had been warned about its
observed laxity in following the rules on the certification for non-forum shopping. Only the substantive merits of the
CSC’s case saved the day in this case for the OSG.
The CSC is the proper party to raise an
appeal against the CA’s amended petition
SJO2 Almojuela asserts that the CSC has no legal personality to challenge the CA’s amended decision because it
must maintain its impartiality as a judge and disciplining authority in controversies involving public officers. He
implores the Court to reconsider its ruling in Civil Service Commission v. Dacoycoy,58 citing the arguments from
Justice Romero’s dissenting opinion.
More than ten years have passed since the Court first recognized in Dacoycoy the CSC’s standing to appeal the
CA’s decisions reversing or modifying its resolutions seriously prejudicial to the civil service system. Since then, the
ruling in Dacoycoy has been subjected to clarifications and qualifications,59 but the doctrine has remained the
same:60 the CSC has standing as a real party in interest and can appeal the CA’s decisions modifying or reversing
the CSC’s rulings, when the CA action would have an adverse impact on the integrity of the civil service. As the
government’s central personnel agency, the CSC is tasked to establish a career service and promote morale,
efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service;61 it has a stake in ensuring
that the proper disciplinary action is imposed on an erring public employee, and this stake would be adversely
affected by a ruling absolving or lightening the CSC-imposed penalty. Further, a decision that declares a public
employee not guilty of the charge against him would have no other appellant than the CSC. To be sure, it would not
be appealed by the public employee who has been absolved of the charge against him; neither would the
complainant appeal the decision, as he acted merely as a witness for the government.62 We thus find no reason to
disurb the settled Dacoycoy doctrine.
In the present case, the CSC appeals the CA’s amended decision, which modified the liability the former meted
against SJO2 Almojuela from grave misconduct to simple misconduct, and lowered the corresponding penalty from
dismissal to three months suspension. Applying the Dacoycoy principles, the CSC has legal personality to appeal the
CA’s amended decision as the CA significantly lowered SJO2 Almojuela’s disciplinary sanction and thereby
prevented the CSC from imposing the penalty it deemed appropriate to impose on SJO2 Almojuela. The findings and
conclusions below fully justify our liberal stance.
SJO2 Almojuela was afforded due process
in the BJMP investigations
In his Comment, SJO2 Almojuela argued that he had been deprived of due process during the BJMP investigation
because he was not allowed to present his evidence and his witnesses, and was not accorded the trial-type
proceedings that the prosecution panel enjoyed. Since he elected a formal investigation, SJO2 Almojuela asserts
that he should have been permitted to require the attendance of witnesses through compulsory processes.
We support the CA’s conclusion that SJO2 Almojuela was accorded the right to due process during the BJMP
investigation. The essence of due process in administrative proceedings (such as the BJMP investigation) is simply
the opportunity to explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained
of.63 Where a party has been given the opportunity to appeal or seek reconsideration of the action or ruling
complained of, defects in procedural due process may be cured.64
In SJO2 Almojuela’s case, he was informed of the charges against him, and was given the opportunity to refute them
in the counter-affidavit and motion for reconsideration he filed before the BJMP hearing officer, in the appeal and
motion for reconsideration he filed before the CSC, in his petition for review on certiorari, in his memorandum on
appeal, and, finally, in the motion for reconsideration he filed before the CA.
In particular, SJO2 Almojuela admitted in his comment that he narrated in his counteraffidavit the circumstances that,
to his knowledge, transpired immediately before Lao’s breakout.65 The Motion for Reconsideration to the CA’s
original decision contained the additional piece of evidence that SJO2 Almojuela claimed would have exculpated him
from liability: Captain Fermin Enriquez’s testimony during his cross-examination in Criminal Case No. 3320236, filed
against SJO2 Almojuela for conniving with or consenting to evasion under Article 223 of the Revised Penal
Code.66 This piece of evidence was reiterated in the comment SJO2 Almojuela filed before this Court.67 Notably,
SJO2 Almojuela repeteadly mentioned ‘other witnesses and other documentary exhibits’ that he would have
presented to absolve him from liability,68 but the only piece of evidence he submitted in his Motion for
Reconsideration and Comment was Captain Enriquez’s testimony.
These circumstances sufficiently convince us that SJO2 Almojuela had been given ample opportunity to present his
side, and whatever defects might have intervened during the BJMP investigation have been cured by his subsequent
filing of pleadings69 before the CSC, the CA, and before this Court.
SJO2 Almojuela’s consent to Lao’s
escape from the Makati City Jail has been
satisfactorily proven by substantial evidence
We now proceed to the substantive issues.
We differ from the CA’s conclusion in its amended decision finding no clear evidence that SJO2 Almojuela had been
directly involved in Lao’s escape. SJO2 Almojuela adopted this stance, and added that Criminal Case No. 3320236,
which was filed against him for facilitating Lao’s escape, has been dismissed. He also pointed out Captain Enriquez’s
(one of the investigating officers) testimony in Criminal Case No. 3320236, where Captain Enriquez admitted that
JO1 Pascual was the last person seen in possession of the maingate’s keys, and that the gatekeepers JO1 Loyola
and JO1 Robles should have been safekeeping the keys. Lastly, SJO2 Almojuela sought to discredit the testimonies
of SJO2 Aquino, JO1 Loyola, SJO1 Lagahit and JO1 Robles for being hearsay, and questioned the admissability of
their affidavits as they were never offered as part of the BJMP prosecutors’ documentary evidence.
According to the BJMP report, Lao most likely exited the jail compound through the main gate, considering that he
was discovered to have disappeared at about the same time the warden left the jail on board his car (the BJMP
report pegged the discovery of Lao’s escape 30 minutes after the warden left, while the jail officers’ affidavits
estimated it to have transpired 30 minutes before). A search and inspection of the barracks of suspected jail
personnel resulted in the recovery of ten keys from SJO2 Almojuela’s barracks, one of which matched the main
gate’s padlock. This piece of evidence, when considered along with other pieces of evidence presented before the
BJMP investigation and the CSC, is sufficient to conclude that SJO2 Almojuela knew and consented to Lao’s
getaway.
True, the CSC failed to present direct evidence proving that SJO2 Almojuela had been involved in facilitating Lao’s
escape. But direct evidence is not the sole means of establishing guilt beyond reasonable doubt since circumstantial
evidence, if sufficient, can supplant the absence of direct evideence.70 Under Section 4, Rule 133 of the Rules of
Court:
SEC. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
While this provision appears to refer only to criminal cases, we have applied its principles to administrative
cases.71To fulfill the third requisite, this Court in RE: AC NO. 04-AM-2002 (JOSEJINA FRIA V. GEMILIANA DE LOS
ANGELES),72 an En Banc decision, required that the circumstantial evidence presented must constitute an unbroken
chain that leads one to a fair and reasonable conclusion pointing to the person accused, to the exclusion of others,
as the guilty person.73 The circumstantial evidence the CSC presented leads to a fair and reasonable conclusion
that, at the very least, SJO2 Almojuela consented to Lao’s getaway. The keys found in SJO2 Almojuela’s room fit the
padlock in the maingate, Lao’s most possible point of egress. The fact that these keys should be in the safekeeping
of JO1 Pascual and JO1 Robles does not clear SJO2 Almojuela from liability; on the contrary, it should convince us
of his involvement in Lao’s escape. It leads us to ask why the keys were found in SJO2 Almojuela’s room, when the
last person seen to possess the keys, and the personnel who were supposed to safekeep them, was not SJO2
Almojuela. SJO2 Almojuela’s bare allegations that he was set up cannot stand up against the presumption of
regularity in the performance of the investigating officers’ duty. This presumption, when considered with the following
pieces of evidence, leads us to no other conclusion than SJO2 Almojuela’s implied consent to Lao’s escape. First,
SJO2 Almojuela’s lax attitude regarding Lao, whom he admitted seeing loittering around the jail’s premises at night
and even using JO1 Pascual’s celfone, both in contravention of BJMP rules and regulations. Second, SJO2
Almojuela lied when he stated in his affidavit that he only left the desk area at around 1:20 to 1:40 AM, when the
testimonies of two other jail officers, SJO1 Lagahit and JO1 Loyola, show otherwise. Third, when Panayaman
overheard the negotiations for Lao’s release between JO1 Pascual and the person he was talking to in his celfone,
Panayaman went to SJO2 Almojuela’s room but found that the door was locked.
Finally, we do not agree with SJO2 Almojuela’s assertion that the statements of SJO2 Aquino, JO1 Loyola, SJO1
Lagahit and JO1 Robles in their affidavits should be disregarded for being hearsay as he failed to cross-examine
them. It is well-settled that a formal or trial-type of hearing is not indespensible in administrative proceedings, and a
fair and reasonable opportunity to explain one’s side suffices to meet the requirements of due process.74 Technical
rules applicable to judicial proceedings need not always apply.75 In Erece v. Macalingay et. al.,76 we affirmed the
CA’s ruling finding the petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service despite
his contention that he had been denied his right to cross-examine the witnesses against him. We held that the right
to cross-examine the other party’s witnesses is not an indispensable aspect of due process in administrative
proceedings. Due process in these proceedings is not identical with "judicial process;" a trial in court is not always
essential in administrative due process.77 Moreover, we have consistently held that in reviewing administrative
decisions, the findings of fact made must be respected as long as they are supported by substantial evidence.78 We
find no reason in this case to depart from these principles.
In consenting to Lao’s escape, SJO2
Almojuela is guilty of gross misconduct in
the performance of his duties as Senior Jail
Officer II
We find SJO2 Almojuela guilty of gross misconduct in the performance of his duties as Senior Jail Officer II.
Misconduct has been defined as "a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer."79 Misconduct becomes grave if it "involves any of the
additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be
established by substantial evidence."80 In SJO2 Almojuela’s case, we hold it established by substantial evidence that
he consented to Lao’s escape from the Makati City Jail. Thus, there was willful violation of his duty as Senior Jail
Officer II to oversee the jail compound’s security, rendering him liable for gross misconduct.
SJO2 Almojuela is guilty of gross
negligence in the performance of his duties
as Senior Jail Officer II
Even assuming that SJO2 Almojuela had not consented to Lao’s getaway, adequate evidence shows that SJO2
Almojuela had been grossly negligent in the performance of his duties. Gross neglect of duty or gross negligence
refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar
as other persons may be affected. In cases involving public officials, there is gross negligence when a breach of duty
is flagrant and palpable.81
First, SJO2 Almojuela left the desk area from 1:30 a.m. to 3:00 a.m., with no explanation as to where he went or why
he had to leave his post. His contention that he stepped out from the desk area at 1:20 a.m. and returned at 1:30
a.m. to take a snack is belied by the testimony of SJO1 Lagahit (the desk reliever) who testified that SJO2 Almojuela
returned at 3 a.m.; and by the testimony of JO1 Loyola that the desk area was unmanned between 2:00 to 3:00 a.m.
At 3 a.m., when he was established to be at the desk area, SJO2 Almojuela was even seen sleeping on a folding
chair. The situation was thus one of compounded neglect.
As shift supervisor and one of the highest ranking jail officers on duty at the time of the prison break, SJO2 Almojuela
had the responsibility to oversee the security of the jail compound and to ensure that all members of the shift were
performing their tasks. SJO2 Almojuela’s acts of leaving his post for two hours, without any adequate reason, and
sleeping afterwards show a wanton disregard for his responsibilities as shift supervisor. SJO2 Almojuela’s neglect of
his duties considerably contributed to the lax prison environment that allowed Lao not only to escape, but to even
bring his belongings with him. During SJO2 Almojuela’s absence, JO1 Loyola saw that the control gates for the
detention cells were open, and the desk area was unmanned.
Second, SJO2 Almojuela tolerated the blatant disregard of BJMP rules and regulations by the jail officers under his
supervision. He admitted that he saw Lao loittering in the jail compound in the wee hours of the night, and did
nothing about it. Worse, SJO2 Almojuela was even seen talking to Lao and JO1 Pascual at the desk area, and other
inmates have been seen conversing at the desk area. The fact that JO1 Pascual accompanied Lao could not absolve
SJO2 Almojuela from liability. According to BJMP rules and regulations, all inmates must be kept inside their cells
after visiting hours. During night time, compelling reasons and I or emergency situations must exist before the
inmates can be allowed to leave their cells. Thus, contrary to the conclusion in the CA's amended decision, it was
highly irregular for Lao to be outside his cell, regardless of whether he is accompanied by a jail officer.
These circumstances show that SJ02 Almojuela, as the desk officer and shift supervisor, was grossly negligent in
discharging his duties, which contributed in Lao's surreptitious escape from the Makati City Jail.
Under Section 52 (A)(2) and (3), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil
Service,82 both gross misconduct and gross neglect of duty are grave offenses punishable by dismissal from the
service for the first offense. Our conclusions fully justify the imposition of this penalty and the reinstatement of the
CA's original penalty of dismissal from the service.
WHEREFORE, all premises considered, we hereby GRANT the petition. The amended decision of the Court of
Appeals is REVERSED and SET ASIDE. Respondent Arlie Almojuela is found guilty of gross misconduct and gross
neglect of duty, and is hereby D DISMISSED from the service.
SO ORDERED.
G.R. No. 176343 September 18, 2012
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILIO, Respondent.
DECISION
BERSAMIN, J.:
The issuance by the proper disciplining authority of an order of preventive suspension for 90 days of a civil service
officer or employee pending investigation of her administrative case is authorized provided that a formal charge is
served to her and the charge involves dishonesty, oppression, grave misconduct, or neglect in the performance of
duty, or if there are reasons to believe that she is guilty of the charge as to warrant her removal from the service.
Proof showing that the respondent officer or employee may unduly influence the witnesses against her or may
tamper the documentary evidence on file at her office is not a prerequisite before she may be preventively
suspended.
 Antecedents
Trade and Investment Development Corporation of the Philippines (TIDCORP) is a wholly owned government
corporation whose primary purpose is to guarantee foreign loans, in whole or in part, granted to any domestic entity,
enterprise or corporation organized or licensed to engage in business in the Philippines.1
On May 13, 2003, the Board of Directors of TIDCORP formally charged Maria Rosario Manalang-Demigillo
(Demigillo), then a Senior Vice-President in TIDCORP, with grave misconduct, conduct prejudicial to the best interest
of the service, insubordination, and gross discourtesy in the course of official duties. The relevant portions of the
formal charge read:
After a thorough study, evaluation, and deliberation, the Board finds merit to the findings and recommendation of the
Investigating Committee on the existence of a probable cause for Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service, Insubordination, and Gross Discourtesy in the Course of Official Duties. However and to
avoid any suspicion of partiality in the conduct of the investigation, the Board hereby refers this case to the Office of
the Government Corporate Counsel to conduct a formal investigation on the following:
1) The incident during the Credit Committee Meeting on 06 March 2002 where you allegedly engaged yourself in a
verbal tussle with Mr. Joel C. Valdes, President and CEO. Allegedly, you raised your voice, got angry, shouted at Mr.
Valdes and were infuriated by his remarks such as "are we talking of apples and apples here?", "everybody should
focus on the issues at hand" and "out of the loop";
2) The incident during the Reorganization Meeting on 18 July 2002 where you appeared to have been rude and
arrogant in the way you answered Mr. Valdes to some questions like "Ano gusto mo? Bibigay ko personally sa
iyo…sasabihan ko personally ikaw?", "You know Joel alam natin sa isa’t-isa…that…I don’t know how to term
it…there is no love lost no?", "Ang ibig sabihin kung may galit ka…" "Let’s be candid you know…" "What is the
opportunity? Let me see…pakita ko sa’yo lahat ang aking ano…" and "Anong output tell me?";
3) The incident during the Planning Session on 05 August 2002. Records show that you reacted to the statement of
Mr. Valdes urging everybody to give support to the Marketing Group in this manner – "But of course, we would not
want to be the whipping boy!" Records also show that in the same meeting, you used arrogant and threatening
remarks to the President and CEO like "don’t cause division to hide your inefficiency and gastos! If you push me to
the wall, I have goods on you too…", "You want me to charge you to the Ombudsman?", "May humihingi ng
documents sa akin, sabayan ko na sila", "Now I’m fighting you openly…"and "I am threatening you";
4) The incident involving your Memorandum to Mr. Valdes dated 19 September 2002, the pertinent portions of which
read, as follows:
"I am repulsed and nauseated by the information that yesterday, 18 September 2002 at the OPCOM meeting, you
claim to have talked to me or consulted me about the car you caused to be purchased for the Corporate Auditor Ms.
Maria Bautista.
I have never talked to you about your desire to give Ms. Bautista a car.
This is a brazen lie, a fabrication. Such moral turpitude! How low, how base, how desperate!
Accordingly, as you have given me no (sic), I am taking you to task for this and all the illegal acts you have done and
are doing against me and TIDCORP."
It appears that the said Memorandum was circulated even to those who were not privy to the cause of the issuance
of such statement.
5) The incident where you assisted and made it appear to be acting as counsel of Mr. Vicente C. Uy in the case
involving the latter relative to the conduct of the APEC Capacity Building for Trade and Investment Insurance
Training Program in April 2002;
6) The incident on 13 November 2002 where you allegedly urged and induced officials and employees at the 3rd
floor of TIDCORP to proceed to the Office of the President and CEO to give support to EVP Jane Tambanillo who
was allegedly then being forced to resign by Mr. Valdes. This caused not only a commotion but disturbance and
disruption of the office work at both 3rd and 4th floors;
7) The incident on 13 November 2002 where you allegedly shouted at Atty. Jane Laragan and berated Mr. Valdes in
front of officers and employees whom you gathered as per allegation number 6; and
8) Relative to allegation number 7, your stubborn refusal to obey the order of Mr. Valdes to go back to work as it was
only 9:30 a.m. and instead challenged him to be the one to bring you down to the 3rd floor instead of asking the
guard to do so.
Pursuant to Section 16, Rule II of the Uniform Rules on Administrative Cases in the Civil Service and in the spirit of
justice, fair play, and due process, you are hereby given the opportunity to submit additional evidence to what you
have already submitted during the preliminary investigation, if any to the Board, through the OGCC, within seventy
two (72) hours from receipt of this Memorandum.
In this regard, you are informed of your right to be assisted by a counsel of your choice and to indicate in your
answer whether or not you elect a formal investigation. Nevertheless, and in accordance with the aforecited provision
of the Uniform Rules on Administrative Cases in the Civil Service, any requests for clarification, bills of particulars or
motion to dismiss which are obviously designed to delay the administrative proceeding shall not be entertained. If
any of these pleadings are interposed, the same shall be considered as an answer and shall be evaluated as such.
Finally, and after considering Section 19 of the same Rules, which gives authority to the disciplining body to issue an
order of preventive suspension, you are hereby preventively suspended for a period of ninety (90) days from receipt
hereof.
Let a copy of this memorandum and the complete records of the case be forwarded immediately to the Office of the
Government Corporate Counsel (OGCC) for appropriate action.2
TIDCORP referred the charge to the Office of the Government Corporate Counsel (OGCC) for formal investigation
and reception of evidence. Pending the investigation, TIDCORP placed Demigillo under preventive suspension for 90
days.3
Demigillo assailed her preventive suspension in the Civil Service Commission (CSC),4 which issued on January 21,
2004 Resolution No. 040047 declaring her preventive suspension to be "not in order."5 The CSC stated that under
Section 19(2), Rule II, of the Uniform Rules on
Administrative Cases in the Civil Service (Uniform Rules), a civil service officer like Demigillo might be preventively
suspended by the disciplining authority only if any of the two grounds were present, to wit: (1) there was a possibility
that the civil service employee might unduly influence or intimidate potential witnesses against him; or (2) there was
a possibility that the civil service employee might tamper the documentary evidence on file in her office.6 According to
the CSC, TIDCORP did not prove with substantial evidence the existence of any of such grounds, explaining thus:
xxx. As the party claiming affirmative evidence, that is, Demigillo’s possibility of influencing potential witnesses or
tampering with evidence, TIDCORP is bound to prove the same by substantial evidence. However, it failed to.
TIDCORP claims that its witnesses "refused to issue any sworn statement during the preliminary investigation in
deference to their immediate superior x x x and that the same witnesses, however, intimated that they may be
compelled to tell the truth if called to testify during the investigation." On the basis of these statements, it is clear that
the witnesses’ refusal to execute sworn statement is by reason of their "deference" to Demigillo not on account of her
"intimidation or influence." Further, the fact that said witnesses "will be compelled to tell the truth" is not because of
Demigillo’s continued presence or absence in the office but because they are bound by their oath to tell the truth
during the investigation. Under these circumstances, it is not difficult to ascertain that the order of preventive
suspension is not necessary.
Anent the potential tampering of documents by Demigillo, the Commission similarly finds the same remote. There is
no showing that the documentary evidence of the case leveled against her were in her possession or custody as
would otherwise justify the imposition of preventive suspension. As borne by the evidence on record, the acts
complained of against Demigillo constitute verbal tussles between her and President Valdes which were all recorded
and documented by the TIDCORP. In this situation, there is no chance of Demigillo’s tampering with documents.
From the foregoing disquisition, the Commission finds that the preventive suspension of Demigillo for ninety (90)
days was improvidently made because the possibility of exerting/influencing possible witnesses or tampering with
documents, which is the evil sought to be avoided in this case, does not exist.7
Upon denial of its motion for reconsideration by the CSC,8 TIDCORP appealed to the Court of Appeals
(CA),9submitting the sole issue of:
WHETHER OR NOT THE CSC ERRED IN SO HOLDING THE PREVENTIVE SUSPENSION OF APPELLANT
DEMIGILLO WAS NOT IN ORDER.10
On November 7, 2006, the CA promulgated its decision affirming the CSC,11 holding and ruling as follows:
The main issue in this case is whether or not respondent Demigillo was validly placed under preventive suspension
on the ground that she could possibly influence or intimidate potential witnesses or tamper the evidence on record in
her office, thus, affecting the investigation of the case against her.
Petitioner argues that the preventive suspension imposed against respondent Demigillo is valid as it is in accordance
with the CSC rules and regulations and Section 51, Chapter 6, Title I (A), Book V of Executive Order No. 292 which
states that "the proper disciplining authority may preventively suspend any subordinate officer or employee under his
authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or
grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is
guilty of charges which would warrant his removal from the service", hence, the CSC erred in holding the same not in
order. Further, petitioner contends that since the provision of the Administrative Code of 1987 on preventive
suspension does not set any condition on its imposition, the provision in the Uniform Rules on Administrative Cases
in the Civil Service promulgated by the CSC should be stricken out as it is not found in the law itself.
We are not persuaded.
We agree with the CSC Resolution No. 040047 which cited Section 19 (paragraph 2), Rule II, Uniform Rules on
Administrative Cases in the Civil Service as basis in ruling against the order of preventive suspension against herein
respondent. The pertinent portion of the provision reads, as follows:
An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his
misfeasance or malfeasance and to preclude the possibility of exerting undue influence or pressure on the witnesses
against him or tampering of documentary evidence on file with his Office.
Based on the aforequoted provision, any of the two grounds: (1) to preclude the possibility of exerting undue
influence or pressure on the witnesses against him; or (2) tampering of documentary evidence on file with his office,
can be validly invoked by the disciplining authority to justify the imposition of the preventive suspension. As correctly
pointed out by respondent in her motion for leave to file and admit attached comment, and comment to amended
petition for review, under Section 19 (paragraph 2), Rule II, of the Uniform Rules of Administrative Cases in the Civil
Service (URACCS), preventive suspension is warranted in order to preclude the respondent from exerting "undue
influence" on the witnesses against her. But in this case, TIDCORP failed to prove the possibility of respondent
exerting undue influence on the witnesses, but instead CSC found TIDCORP to have admitted unequivocally that it is
because of the witnesses’ deference or respect for respondent that they did not execute sworn statements. Indeed,
the esteem or respect given is not undue influence; it even negates any wrongdoing on the part of respondent.
Indeed, the alleged incidents being harped about by TIDCORP do not in any way prove undue influence of
respondent on the witnesses. The incidents involved mere verbal tussles between Mr. Joel Valdes, TIDCORP
President and CEO, respondent Demigillo and Jane Larangon, who had already executed her affidavit even before
respondent’s preventive suspension. In brief, TIDCORP failed to prove undue influence as there is nothing in those
incidents showing the commission or coercion or compulsion upon one to do what is against his will.
We agree with the findings of the CSC that respondent’s possibility to exert undue influence or pressure on the
witnesses against her is remote. The purpose of preventive suspension is to avoid the possibility on the part of the
person charged of a certain offense, to exert influence or undue pressure on the potential witnesses against her. In
Gloria vs. Court of Appeals, the High Court said that preventive suspension pending investigation is a measure
intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. And as correctly pointed out by the CSC, the possibility
of exerting influence or pressure on the potential witnesses does not exist in this case because the complainant or
the person who stands to be a witness for the government is influential, so to speak, as he holds the highest position
in TIDCORP. It is really difficult to imagine that a person who occupies the highest position in an organization could
be influenced or intimidated by his subordinate. The president of the organization has greater degree of control in the
organization, and to claim that he could be intimated or influenced by his subordinate is baseless and unbelievable.
Considering that Valdes was President of TIDCROP and a primary witness against respondent who is his mere
subordinate, we find no valid ground for petitioner to impose preventive suspension against respondent.
Moreover, as correctly pointed out by the CSC in its resolution, as the party claiming affirmative relief, TIDCORP is
bound to prove the basis thereof, i.e. respondent’s possibility of influencing potential witnesses or tampering with the
evidence, by substantial evidence, which it failed to do. There is no showing that the documentary evidence against
respondent are in her possession or custody. The acts complained of against respondent arose out of the verbal
tussles between her and President Valdes which were all recorded and documented by TIDCORP. In this situation,
there is no chance for respondent’s tampering with the documents.
As regards the argument that since the provision of the Administrative Code of 1987 on preventive suspension does
not set any condition on its imposition, the provision in the Uniform Rules on Administrative Cases in the Civil Service
promulgated by the CSC should be stricken out as it is not found in the law itself, we rule in the negative.
We agree with respondent that the aforequoted argument of petitioner is misplaced and unfounded. Section 12 (2),
Chapter 3, Tile I (A) of Book V of the Revised Administrative Code, provides that among the powers and functions of
the Civil Service Commission is to prescribe, amend and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws. It is on the basis of this grant of power to the CSC that
CSC Resolution No. 991936, otherwise known as the Uniform Rules on Administrative Cases in the Civil Service
was promulgated.
Indeed, the rule-making power of the administrative body is intended to enable it to implement the policy of the law
and to provide for the more effective enforcement of its provisions. Through the exercise of this power of subordinate
legislation, it is possible for the administrative body to transmit "the active power of the state from its source to the
point of application," that is, apply the law and so fulfill the mandate of the legislature. It is an elementary rule in
administrative law that administrative regulations and policies enacted by administrative bodies to interpret the law
which they are entrusted to enforce, have the force of law, are entitled to great respect, and have in their favor a
presumption of legality.
Furthermore, Section 10 of Rule 43 of the 1997 Rules of Civil Procedure, provides that the findings of fact of the
court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals.
Indeed, jurisprudence is replete with the rule that findings of fact of quasi-judicial agencies which have acquired
expertise because their jurisdiction is confined to specific matters are generally accorded not only respect, but at
times even finality if such findings are supported by substantial evidence.
WHEREFORE, the instant petition is DENIED. The assailed Resolutions dated January 21, 2004 and June 7, 2004,
issued by the Civil Service Commission, are AFFIRMED.
SO ORDERED.12
Hence, TIDCORP has appealed to the Court.13
Issue
The sole issue concerns the validity of TIDCORP’s 90-day preventive suspension of Demigillo.
Ruling
We grant the petition, and hold that the 90-day preventive suspension order issued against Demigillo was valid.
The Revised Administrative Code of 1987 (RAC) embodies the major structural, functional and procedural principles
and rules of governance of government agencies and constitutional bodies like the CSC. Section 1, Chapter 1,
Subtitle A, Title I, Book V, of the RAC states that the CSC is the central personnel agency of the government.
Section 51 and Section 52, Chapter 6, Subtitle A, Title I, Book V of the RAC respectively contain the rule on
preventive suspension of a civil service officer or employee pending investigation, and the duration of the preventive
suspension, viz:
Section 51. Preventive Suspension. – The proper disciplining authority may preventively suspend any subordinate
officer or employee under his authority pending an investigation, if the charge against such officer or employee
involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to
believe that the respondent is guilty of charges which would warrant his removal from the service.
Section 52. Lifting of Preventive Suspension Pending Administrative Investigation. – When the administrative case
against the officer or employee under preventive suspension is not finally decided by the disciplining authority within
the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the
case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in
computing the period of suspension herein provided.
Under Section 51, supra, the imposition of preventive suspension by the proper disciplining authority is authorized
provided the charge involves dishonesty, oppression, or grave misconduct, or neglect in the performance of duty, or
if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the
service. Section 51 nowhere states or implies that before a preventive suspension may issue there must be proof
that the subordinate may unduly influence the witnesses against him or may tamper the documentary evidence on
file in her office.
In Gloria v. Court of Appeals,14 several public school teachers were preventively suspended for 90 days while being
investigated for the charge of grave misconduct, among others. Citing Section 51 of the RAC, the Court sustained
the imposition of the 90-day preventive suspension pending investigation of the charges, saying:
The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or
neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered "unjustified," even if later
the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those
sacrifices which holding a public office requires for the public good xxx.15
Pursuant to its rule-making authority, the CSC promulgated the Uniform Rules on August 31, 1999. Section 19 and
Section 20 of Rule II of the Uniform Rules defined the guidelines in the issuance of an order of preventive
suspension and the duration of the suspension, to wit:
Section 19. Preventive Suspension. – Upon petition of the complainant or motu proprio, the proper disciplining
authority may issue an order of preventive suspension upon service of the Formal Charge, or immediately thereafter
to any subordinate officer or employee under his authority pending an investigation, if the charge involves:
a. dishonesty;
b. oppression;
c. grave misconduct;
 d. neglect in the performance of duty; or
e. if there are reasons to believe that the respondent is guilty of charges which would warrant his removal
from the service.
An order of preventive suspension may be issued to temporarily remove the respondent from the scene of his
misfeasance or malfeasance and to preclude the possibility of exerting undue influence or pressure on the witnesses
against him or tampering of documentary evidence on file with his Office.
In lieu of preventive suspension, for the same purpose, the proper disciplining authority or head of office may
reassign respondent to other unit of the agency during the formal hearings.
Section 20. Duration of Preventive Suspension. – When the administrative case against an officer or employee under
preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the
date of his preventive suspension, unless otherwise provided by special law, he shall be automatically reinstated in
the service; provided that, when the delay in the disposition of the case is due to the fault, negligence or petition of
the respondent, the period of delay should not be included in the counting of the 90 calendar days period of
preventive suspension. Provided further that should the respondent be on Maternity/Paternity leave, said preventive
suspension shall be deferred or interrupted until such time that said leave has been fully enjoyed.
It is clear from Section 19, supra, that before an order of preventive suspension pending an investigation may validly
issue, only two prerequisites need be shown, namely: (1) that the proper disciplining authority has served a formal
charge to the affected officer or employee; and (2) that the charge involves either dishonesty, oppression, grave
misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of the
charges which would warrant her removal from the service. Proof showing that the subordinate officer or employee
may unduly influence the witnesses against her or may tamper the documentary evidence on file in her office is not
among the prerequisites.
Preventing the subordinate officer or employee from influencing the witnesses and tampering the documentary
evidence under her custody are mere purposes for which an order of preventive suspension may issue as reflected
under paragraph 2 of Section 19, supra. This is apparent in the phrase "for the same purpose" found in paragraph 3
of Section 19. A "purpose" cannot be considered and understood as a "condition." A purpose means "reason for
which something is done or exists," while a condition refers to a "necessary requirement for something else to
happen;" or is a "restriction, qualification."16 The two terms have different meanings and implications, and one cannot
substitute for the other.
In Gloria v. Court of Appeals,17 we stated that preventive suspension pending investigation "is a measure intended to
enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating
or in any way influencing witnesses against him." As such, preventing the subordinate officer or employee from
intimidating the witnesses during investigation or from tampering the documentary evidence in her office is a
purpose, not a condition, for imposing preventive suspension, as shown in the use of the word "intended."
Relevantly, CSC Resolution No. 030502, which was issued on May 5, 2003 for the proper enforcement of preventive
suspension pending investigation, provides in part as follows:
WHEREAS, Sections 51 and 52, Chapter 6, Subtitle A, Title I, Book V of the Administrative Code of 1987, set out the
controlling standards on the imposition of preventive suspension, as follows:
xxxx
WHEREAS, in order to effectuate the afore-quoted provisions of law, the Civil Service Commission, as the central
personnel agency of the government empowered, inter alia, with the promulgation, amendment and enforcement of
rules and regulations intended to carry out into effect the provisions of the Civil Service Law and other pertinent laws,
adopted Sections 19, 20, and 21 of the Uniform Rules on Administrative Cases in the Civil Service (CSC
Memorandum Circular No. 19, s. 1999), to wit:
xxxx
4. The imposition of preventive suspension shall be confined to the well-defined instances set forth under the
pertinent provisions of the Administrative Code of 1987 and the Local Government Code of 1991. Both of these laws
decree that recourse may be had to preventive suspension where the formal charge involves any of the following
administrative offenses, or under the circumstances specified in paragraph (e) herein:
a. Dishonesty;
b. Oppression;
c. Grave Misconduct;
d. Neglect in the performance of duty; or
e. If there are reasons to believe that the respondent is guilty of the charge/s, which would warrant his
removal from the service.
 xxxx
a. A declaration by a competent authority that an order of preventive suspension is null and void on its face entitles
the respondent official or employee to immediate reinstatement and payment of back salaries corresponding to the
period of the unlawful preventive suspension.
The phrase "null and void on its face" in relation to a preventive suspension order imports any of the following
circumstances:
i) The order was issued by one who is not authorized by law;
ii) The order was not premised on any of the grounds or causes warranted by law;
iii) The order of suspension was without a formal charge; or
iv) While lawful in the sense that it is based on the enumerated grounds, the duration of the imposed preventive
suspension has exceeded the prescribed periods, in which case the payment of back salaries shall correspond to the
excess period only.
CSC Resolution No. 030502 apparently reiterates the rule stated in Section 19 of the Uniform Rules, supra, that for a
preventive suspension to issue, there must be a formal charge and the charge involves the offenses enumerated
therein. The resolution considers an order of preventive suspension as null and void if the order was not premised on
any of the mentioned grounds, or if the order was issued without a formal charge. As in the case of Section 19, the
resolution does not include as a condition for issuing an order of preventive suspension that there must be proof
adduced showing that the subordinate officer or employee may unduly influence the witnesses against her or tamper
the documentary evidence in her custody.
Consequently, the CSC and the CA erred in making the purpose of preventive suspension a condition for its
issuance.1âwphi1 Although, as a rule, we defer to the interpretation by administrative agencies like the CSC of their
own rules, especially if the interpretation is affirmed by the CA, we withhold deference if the interpretation is palpably
erroneous,18 like in this instance.
We hold that TIDCORP’s issuance against Demigillo of the order for her 90-day preventive suspension pending the
investigation was valid and lawful.
WHEREFORE, we GRANT the petition for review on certiorari; SET ASIDE the decision of the Court of Appeals
promulgated on November 7, 2006, and DECLARE AS VALID the order for the preventive suspension for 90 days
of MA. ROSARIO S. MANALANG-DEMIGILIO pending her investigation for grave misconduct.
The respondent shall pay the costs of suit.
SO ORDERED.
G.R. No. 187858 August 9, 2011
THE CIVIL SERVICE COMMISSION, Petitioner,
vs.
RICHARD G. CRUZ, Respondent.
DECISION
BRION, J.:
This petition for review on certiorari assails the decision1 and the resolution2 of the Court of Appeals (CA) in CA-G.R.
SP No. 105410. These assailed CA rulings reversed and set aside the ruling of the Civil Service Commission (CSC)
in Resolution No. 0803053 that denied respondent Richard G. Cruz’s prayer for the award of back salaries as a result
of his reinstatement to his former position.
THE FACTS
The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged with grave misconduct
and dishonesty by CMWD General Manager (GM) Nicasio Reyes. He allegedly uttered a false, malicious and
damaging statement (Masasamang tao ang mga BOD at General Manager) against GM Reyes and the rest of the
CMWD Board of Directors (Board); four of the respondent’s subordinates allegedly witnessed the utterance. The
dishonesty charge, in turn, stemmed from the respondent’s act of claiming overtime pay despite his failure to log in
and out in the computerized daily time record for three working days.
The respondent denied the charges against him. On the charge of grave misconduct, he stressed that three of the
four witnesses already retracted their statements against him. On the charge of dishonesty, he asserted that he
never failed to log in and log out. He reasoned that the lack of record was caused by technical computer problems.
The respondent submitted documents showing that he rendered overtime work on the three days that the CMWD
questioned.
GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his preventive suspension,
however, GM Reyes, with the approval of the CMWD Board, found the respondent guilty of grave misconduct and
dishonesty, and dismissed him from the service.4
 CSC RULING
The respondent elevated the findings of the CMWD and his dismissal to the CSC, which absolved him of the two
charges and ordered his reinstatement. In CSC Resolution No. 080305, the CSC found no factual basis to support
the charges of grave misconduct and dishonesty.
In ruling that the respondent was not liable for grave misconduct, the CSC held:
Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning statements,
"MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER". However, such utterance, even if it were true,
does not constitute a flagrant disregard of rule or was actuated by corrupt motive. To the mind of the Commission, it
was a mere expression of disgust over the management style of the GM and the Board of Directors, especially when
due notice is taken of the fact that the latter officials were charged with the Ombudsman for various anomalous
transactions.5
In ruling that the charge of dishonesty had no factual basis, the CSC declared:
Based on the records of the case, the Commission is not swayed that the failure of Cruz to record his attendance on
April 21 and 22, 2007 and May 5, 2007, while claiming overtime pay therefor, amounts to dishonesty. Cruz duly
submitted evidence showing his actual rendition of work on those days. The residents of the place where he worked
attested to his presence thereat on the days in question.6
The CSC, however, found the respondent liable for violation of reasonable office rules for his failure to log in and log
out. It imposed on him the penalty of reprimand but did not order the payment of back salaries.
The CMWD and the respondent separately filed motions for reconsideration against the CSC ruling. CMWD
questioned the CSC’s findings and the respondent’s reinstatement. The respondent, for his part, claimed that he is
entitled to back salaries in light of his exoneration from the charges of grave misconduct and dishonesty. The CSC
denied both motions.
Both the CMWD and the respondent elevated the CSC ruling to the CA via separate petitions for review under Rule
43 of the Rules of Court. The CA dismissed the CMWD’s petition and this ruling has lapsed to finality.7 Hence, the
issue of reinstatement is now a settled matter. As outlined below, the CA ruled in the respondent’s favor on the issue
of back salaries. This ruling is the subject of the present petition with us.
CA RULING
Applying the ruling in Bangalisan v. Hon. CA, the CA found merit in the respondent’s appeal and awarded him back
8

salaries from the time he was dismissed up to his actual reinstatement. The CA reasoned out that CSC Resolution
No. 080305 totally exonerated the respondent from the charges laid against him. The CA considered the charge of
dishonesty successfully refuted as the respondent showed that he performed overtime service. The CA thereby
rejected the CSC’s contention that the charge of dishonesty had been merely downgraded to a lesser offense; the
CA saw the finding in CSC Resolution No. 080305 to be for an offense (failing to properly record his attendance)
entirely different from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC
Resolution No. 080305 did not wholly restore the respondent’s rights as an exonerated employee as it failed to order
the payment of his back salaries. The CA denied the CSC’s motion for reconsideration.
ISSUE
WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER THE CSC ORDERED HIS
REINSTATEMENT TO HIS FORMER POSITION, CONSONANT WITH THE CSC RULING THAT HE WAS GUILTY
ONLY OF VIOLATION OF REASONABLE OFFICE RULES AND REGULATIONS.9
CSC’s position
The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring as a condition for entitlement to
back salaries that the government employee be found innocent of the charge and that the suspension be unjustified.
CSC Resolution No. 080305 did not fully exculpate the respondent but found him liable for a lesser offense.
Likewise, the respondent’s preventive suspension pending appeal was justified because he was not exonerated.
The CSC also submits that the factual considerations in Bangalisan are entirely different from the circumstances of
the present case. In Bangalisan, the employee, Rodolfo Mariano, a public school teacher, was charged with grave
misconduct for allegedly participating, together with his fellow teachers, in an illegal mass action. He was ordered
exonerated from the misconduct charge because of proof that he did not actually participate in the mass action, but
was absent from work for another reason. Although the employee was found liable for violation of office rules and
regulations, he was considered totally exonerated because his infraction stemmed from an act entirely different (his
failure to file a leave of absence) from the act that was the basis of the grave misconduct charge (the unjustified
abandonment of classes to the prejudice of the students).
The CSC argues that in the present case, the charge of dishonesty and the infraction committed by the respondent
stemmed from a single act – his failure to properly record his attendance. Thus, the respondent cannot be
considered totally exonerated; the charge of dishonesty was merely downgraded to a violation of reasonable office
rules and regulations.
Accordingly, the CSC posits that the case should have been decided according to our rulings in Jacinto v. CA10 and
De la Cruz v. CA11 where we held the award of back salaries to be inappropriate because the teachers involved were
not fully exonerated from the charges laid against them.
The respondent’s position
The respondent maintains that he is entitled to reinstatement and back salaries because CSC Resolution No.
080305 exonerated him from the charges laid against him; for the purpose of entitlement to back salaries, what
should control is his exoneration from the charges leveled against him by the CMWD. That the respondent was found
liable for a violation different from that originally charged is immaterial for purposes of the back salary issue.
The respondent also asserts that the Bangalisan ruling squarely applies since the CSC formally admitted in its
Comment to CMWD’s petition for review before the CA that the penalty of reprimand is not a reduced penalty for the
penalty of dismissal imposable for grave misconduct and dishonesty.12
THE COURT’S RULING
We deny the petition for lack of merit.
The issue of entitlement to back salaries, for the period of suspension pending appeal,13 of a government employee
who had been dismissed but was subsequently exonerated is settled in our jurisdiction. The Court’s starting point for
this outcome is the "no work-no pay" principle – public officials are only entitled to compensation if they render
service. We have excepted from this general principle and awarded back salaries even for unworked days to illegally
dismissed or unjustly suspended employees based on the constitutional provision that "no officer or employee in the
civil service shall be removed or suspended except for cause provided by law";14 to deny these employees their back
salaries amounts to unwarranted punishment after they have been exonerated from the charge that led to their
dismissal or suspension.15
The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code of 1987.
Section 47. Disciplinary Jurisdiction. – x x x.
(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive suspension during the pendency of the appeal in
the event he wins an appeal. (italics ours)
This provision, however, on its face, does not support a claim for back salaries since it does not expressly provide for
back salaries during this period; our established rulings hold that back salaries may not be awarded for the period of
preventive suspension16 as the law itself authorizes its imposition so that its legality is beyond question.
To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled to back
salaries: a) the employee must be found innocent of the charges and b) his suspension must be unjustified.17 The
reasoning behind these conditions runs this way: although an employee is considered under preventive suspension
during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period;
hence, his suspension beyond this fixed period is unjustified and must be compensated.
The CSC’s rigid and mechanical application of these two conditions may have resulted from a misreading of our
rulings on the matter; hence, a look at our jurisprudence appears in order.
Basis for award of back salaries
The Court had the occasion to rule on the issue of entitlement to back salaries as early as 1941,18 when Section 260
of the Revised Administrative Code of 1917 (RAC)19 was the governing law. The Court held that a government
employee, who was suspended from work pending final action on his administrative case, is not entitled to back
salaries where he was ultimately removed due to the valid appointment of his successor. No exoneration or
reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and
reinstatement did not directly arise. The Court, however, made the general statement that:
As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and
the justification for the payment of salary during the period of suspension is that the suspension was unjustified orthat
the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must
be either reinstatement of the suspended person or exoneration if death should render reinstatement
impossible.20 (emphasis and underscoring ours)
In Austria v. Auditor General,21 a high school principal, who was penalized with demotion, claimed payment of back
salaries from the time of his suspension until his appointment to the lower position to which he was demoted. He
argued that his later appointment even if only to a lower position of classroom teacher amounted to a reinstatement
under Section 260 of the RAC. The Court denied his claim, explaining that the reinstatement under Section 260 of
the RAC refers to the same position from which the subordinate officer or employee was suspended and, therefore,
does not include demotional appointments. The word "reinstatement" was apparently equated to exoneration.
In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojas22 interpreting the same provision, the Court first laid
down the requisites for entitlement to back salaries. Said the Court:
A perusal of the decisions of this Court23 x x x show[s] that back salaries are ordered paid to an officer or an
employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to
be illegal. In the case at bar, [the employee] was not completely exonerated, because although the decision of the
Commissioner of Civil Service [ordering separation from service] was modified and [the employee] was allowed to be
reinstated, the decision [imposed upon the employee the penalty of two months suspension without pay]. [emphasis
and underscoring ours]
Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense charged
remained, but a lesser penalty was imposed.
In Villamor, et al. v. Hon. Lacson, et al.,24 the City Mayor ordered the dismissal from the service of city employees
after finding them guilty as charged. On appeal, however, the decision was modified by considering "the suspension
of over one year x x x, already suffered x x x [to be] sufficient punishment"25 and by ordering their immediate
reinstatement to the service. The employees thereupon claimed that under Section 695 of the RAC, the punishment
of suspension without pay cannot exceed two (2) months. Since the period they were not allowed to work until their
reinstatement exceeded two months, they should be entitled to back salaries corresponding to the period in excess
of two months. In denying the employees’ claim for back salaries, the Court held:
The fallacy of [the employees’] argument springs from their assumption that the modified decision had converted the
penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be the
proper penalty, the separation from work for the period until their reinstatement, would be deemed sufficient. Said
decision did not, in the least, insinuate that suspension should have been the penalty.
x x x [T]he modified decision did not exonerate the petitioners. x x x And even if we consider the punishment as
suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that
the suspension was unjustified or that the employee was innocent of the charges proffered against him.26
On the whole, these rulings left the application of the conditions for the award of back salaries far from clear.
Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales as under subsequent rulings,
the innocence of the employee alone served as basis for the award of back salaries.
The innocence of the employee as sole basis for an award of back salaries
In Tan v. Gimenez, etc., and Aguilar, etc.,27 we ruled that the payment of back salary to a government employee,
who was illegally removed from office because of his eventual exoneration on appeal, is merely incidental to the
ordered reinstatement.
Tan was subsequently reiterated in Tañala v. Legaspi, et al.,28 a case involving an employee who was
administratively dismissed from the service following his conviction in the criminal case arising from the same facts
as in the administrative case. On appeal, however, he was acquitted of the criminal charge and was ultimately
ordered reinstated by the Office of the President. Failing to secure his actual reinstatement, he filed a mandamus
petition to compel his superiors to reinstate him and to pay his back salaries from the date of his suspension to the
date of his actual reinstatement. We found merit in his plea and held:
[The employee] had been acquitted of the criminal charges x x x, and the President had reversed the decision x x x
in the administrative case which ordered his separation from the service, and the President had ordered his
reinstatement to his position, it results that the suspension and the separation from the service of the [employee]
were thereby considered illegal. x x x.
x x x [In this case,] by virtue of [the President’s order of reinstatement], [the employee’s] suspension and separation
from the service x x x was thereby declared illegal, so that for all intents and purposes he must be considered as not
having been separated from his office. The lower court has correctly held that the [employee] is entitled to back
salaries.29
The Tañala ruling was reiterated in Cristobal v. Melchor,30 Tan, Jr. v. Office of the President,31 De Guzman v.
CSC32and Del Castillo v. CSC33 - cases involving government employees who were dismissed after being found
administratively liable, but who were subsequently exonerated on appeal.
In Garcia v. Chairman Commission on Audit,34 the Court held that – where the employee, who was dismissed after
being found administratively liable for dishonesty, was acquitted on a finding of innocence in the criminal case (for
qualified theft) based on the same acts for which he was dismissed – the executive pardon granted him in the
administrative case (in light of his prior acquittal) entitled him to back salaries from the time of his illegal dismissal up
to his actual reinstatement.
The above situation should be distinguished from the case of an employee who was dismissed from the service after
conviction of a crime and who was ordered reinstated after being granted pardon. We held that he was not entitled to
back salaries since he was not illegally dismissed nor acquitted of the charge against him.35
Incidentally, under the Anti-Graft and Corrupt Practices Act,36 if the public official or employee is acquitted of the
criminal charge/s specified in the law, he is entitled to reinstatement and the back salaries withheld during his
suspension, unless in the meantime administrative proceedings have been filed against him.
In Tan, Jr. v. Office of the President,37 the Court clarified that the silence of Section 42 (Lifting of Preventive
Suspension Pending Administrative Investigation) of the Civil Service Decree38 on the payment of back salaries,
unlike its predecessor,39 is no reason to deny back salaries to a dismissed civil servant who was ultimately
exonerated.
Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not cover dismissed civil servants who are
ultimately exonerated and ordered reinstated to their former or equivalent positions. The rule in the latter instance,
just as we have said starting with the case of Cristobal vs. Melchor is that when "a government official or employee in
the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal
purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue
to him by virtue of the office that he held."40
These cited cases illustrate that a black and white observance of the requisites in Gonzales is not required at all
times. The common thread in these cases is either the employee’s complete exoneration of the administrative charge
against him (i.e., the employee is not found guilty of any other offense), or the employee’s acquittal of the criminal
charge based on his innocence. If the case presented falls on either of these instances, the conditions laid down in
Gonzales become the two sides of the same coin; the requirement that the suspension must be unjustified is
automatically subsumed in the other requirement of exoneration.
Illegal suspension as sole basis for an award of back salaries
By requiring the concurrence of the two conditions, Gonzales apparently made a distinction between exoneration and
unjustified suspension/dismissal. This distinction runs counter to the notion that if an employee is exonerated, the
exoneration automatically makes an employee’s suspension unjustified. However, in Abellera v. City of Baguio, et
al.,41 the Court had the occasion to illustrate the independent character of these two conditions so that the mere
illegality of an employee’s suspension could serve as basis for an award of back salaries.
Abellera, a cashier in the Baguio City Treasurer’s Office, was ordered dismissed from the service after being found
guilty of dishonesty and gross negligence. Even before the period to appeal expired, the City of Baguio dismissed
him from the service. On appeal, however, the penalty imposed on him was reduced "to two months suspension,
without pay" although the appealed decision was affirmed "in all other respects."
When the issue of Abellera’s entitlement to back salaries reached the Court, we considered the illegality of Abellera’s
suspension - i.e., from the time he was dismissed up to the time of his actual reinstatement – to be a sufficient
ground to award him back salaries.
The rule on payment of back salaries during the period of suspension of a member of the civil service who is
subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the
period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges
which caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified.
In the present case, upon receipt of the [Civil Service Commissioner’s] decision x x x finding [Abellera] guilty, but
even before the period to appeal had expired, [the Baguio City officials] dismissed [Abellera] from the service and
another one was appointed to replace him. [Abellera’s] separation x x x before the decision of the Civil Service
Commissioner had become final was evidently premature. [The Baguio City officials] should have realized that
[Abellera] still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a
specified period, and the possibility of that decision being reversed or modified.42 As it did happen on such appeal x x
x the penalty imposed by the Commissioner was reduced x x x to only 2 months suspension. And yet, by [the Baguio
City officials’] action, [Abellera] was deprived of work for more than 2 years. Clearly, Abellera’s second suspension
from office [i.e., from the time he was dismissed up to his actual reinstatement] was unjustified, and the payment of
the salaries corresponding to said period is, consequently, proper.43 (emphases and underscoring ours)
The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia v. City of Baguio44that
involved substantially similar facts. The Court clarified that the award of back salaries in Abellera was based on the
premature execution of the decision (ordering the employee’s dismissal from the service), resulting in the employee’s
unjustified "second suspension." Under the then Civil Service Rules, the Commissioner of Civil Service had the
discretion to order the immediate execution of his decision in administrative cases "in the interest of public service."
Unlike in Abellera, this discretion was exercised in Yarcia; consequently, the employee’s separation from the service
pending his appeal "remained valid and effective until it was set aside and modified with the imposition of the lesser
penalty."45
The unjustified "second suspension" mentioned in Abellera actually refers to the period when the employee was
dismissed from the service up to the time of his actual reinstatement. Under our present legal landscape, this period
refers to "suspension pending appeal."46
In Miranda v. Commission on Audit,47 the Court again had the occasion to consider the illegality of the suspension of
the employee as a separate ground to award back salaries. Following the filing of several administrative charges
against him, Engr. Lamberto Miranda was "preventively" suspended from June 2, 1978 to May 7, 1986. He was
reinstated on May 22, 1986. On October 7, 1986, the administrative case against him was finally dismissed "for lack
of evidence." When his claim for back salaries (from the time he was "preventively" suspended up to his actual
reinstatement) was denied by the Commission on Audit, he brought a certiorari petition with this Court.
In granting the petition, the Court ruled that since the law48 limits the duration of preventive suspension to a fixed
period, Engr. Miranda’s suspension for almost eight (8) years is "unreasonable and unjustified." Additionally, the
Court observed that the dropping of the administrative case against Engr. Miranda for lack of evidence "is even an
eloquent manifestation that the suspension is unjustified."49 The Court held:
This being so, Engineer Miranda is entitled to backwages during the period of his suspension as it is already settled
in this jurisdiction that a government official or employee is entitled to backwages not only if he is exonerated in the
administrative case but also when the suspension is unjustified.50 (emphases and underscoring ours)
Jurisprudential definition of exoneration
The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not
exonerated of the charge against him. This is the Court’s teaching in City Mayor of Zamboanga v. CA.51 In this case,
the employee was initially found guilty of disgraceful and immoral conduct and was given the penalty of dismissal by
the City Mayor of Zamboanga. On appeal, however, the CA limited the employee’s guilt to improper conduct and
correspondingly reduced the penalty to "six-months suspension without pay with a stern warning that repetition of the
same or similar offense will be dealt with more severely."52 The CA also awarded him "full backwages."53
We held that the CA erred in awarding back salaries by reiterating the principle that back salaries may be ordered
paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is
found and declared to be illegal.54
The Court had the occasion to explain what constitutes "exoneration" in Bangalisan v. Hon. CA,55 the respondent’s
cited case. In this case, the Secretary of Education found the public school teachers guilty as charged and imposed
on them the penalty of dismissal. On appeal, the CSC affirmed the Secretary’s ruling but reduced the penalty
imposed to suspension without pay. However, the CSC found one of the teachers (Mariano) guilty only of violation of
reasonable office rules and regulations, and only penalized her with reprimand. None of the petitioning public school
teachers were awarded back salaries.
On appeal to this Court, we awarded back salaries to Mariano. We explained that since the factual premise of the
administrative charges against him - i.e., his alleged participation in the illegal mass actions, and his suspension -
was amply rebutted, then Mariano was in effect exonerated of the charges against him and was, thus, entitled to
back salaries for the period of his suspension pending appeal.
With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the
[CSC] will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of
the DECS charged him with and he was later found guilty of grave misconduct x x x [and] conduct prejudicial to the
best interest of the service x x x for his participation in the mass actions x x x. It was his alleged participation in the
mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.
However, the [CSC], in the questioned resolution, made [the] finding that Mariano was not involved in the "mass
actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although
the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and
regulations because he failed to inform the school or his intended absence and neither did he file an application for
leave covering such absences.
xxxx
However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty
imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC
made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted
that it was their participation in the mass actions that was the very basis of the charges against them and their
subsequent suspension.56
Bangalisan clearly laid down the principle that if the exoneration of the employee is relative (as distinguished from
complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must
be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense
charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser
penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when
the offense actually committed does not carry the penalty of more than one month suspension or dismissal.57
Bangalisan reiterated that the payment of back salaries, during the period of suspension of a member of the civil
service who is subsequently ordered reinstated, may be decreed only if the employee is found innocent of the
charges which caused the suspension and when the suspension is unjustified. This pronouncement was re-echoed
in Jacinto v. CA,58 De la Cruz v. CA,59 and Hon. Gloria v. CA.60 Taking off from Bangalisan, the Court in De la Cruz
categorically stated:
The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal
orders x x x were commuted by the CSC to six (6) months suspension is already settled.
In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the ground that the teachers were neither
exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in
administrative disciplinary cases.61
In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public school teachers back
salaries - for the period beyond the allowable period of preventive suspension - since they were ultimately
exonerated. In affirming the CA, the Court distinguished preventive suspension from suspension pending appeal for
the purpose of determining the extent of an employee’s entitlement to back salaries. The Court ruled that under
Executive Order (E.O.) No. 292, there are two kinds of preventive suspension of civil service employees who are
charged with offenses punishable by removal or suspension: (i) preventive suspension pending investigation62 and
(ii) preventive suspension pending appeal;63 compensation is due only for the period of preventive
suspensionpending appeal should the employee be ultimately exonerated.64 Citing Floyd R. Mechem's A Treatise on
the Law of Public Offices and Officers,65 Hon. Gloria ruled:
Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must
be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries
corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of
the charges which caused his suspension and [2] when the suspension is unjustified."66 (emphases and
underscoring ours)
A careful reading of these cases would reveal that a strict observance of the second condition for an award of back
salaries becomes important only if the employee is not totally innocent of any administrative infraction. As previously
discussed, where the employee is completely exonerated of the administrative charge or acquitted in the criminal
case arising from the same facts based on a finding of innocence, the second requirement becomes subsumed in
the first. Otherwise, a determination of the act/s and offense/s actually committed and of the corresponding penalty
imposed has to be made.
Unjustified suspension
On the suspension/dismissal aspect, this second condition is met upon a showing that the separation from office is
not warranted under the circumstances because the government employee gave no cause for suspension or
dismissal. This squarely applies in cases where the government employee did not commit the offense charged,
punishable by suspension or dismissal (total exoneration); or the government employee is found guilty of another
offense for an act different from that for which he was charged.
Bangalisan, Jacinto and De la Cruz illustrate
the application of the two conditions
Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The CSC argues against
this position with the claim that the rulings in Jacinto and De la Cruz, not Bangalisan, should apply. After due
consideration, we see no reason why the cited rulings and their application should be pitted against one another;
they essentially espouse the same conclusions after applying the two conditions for the payment of back salaries.
Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school teachers in Metro
Manila in 1990. The teachers were charged with grave misconduct, gross neglect of duty, and gross violation of civil
service law, rules and regulations, among others. The then Secretary of Education found them guilty and dismissed
them from the service. The CSC, on appeal, ordered the teachers reinstated, but withheld the grant of their back
salaries. The CSC found the teachers liable for conduct prejudicial to the best interest of the service and imposed on
them the penalty of suspension. The CSC reasoned that since the teachers were not totally exculpated from the
charge (but were found guilty of a lesser offense), they could not be awarded back salaries.
When these cases reached the Court, the issue of the teachers’ entitlement to back salaries was raised. The
teachers claimed that they were entitled to back salaries from the time of their dismissal or suspension until their
reinstatement, arguing that they were totally exonerated from the charges since they were found guilty only of
conduct prejudicial to the best interest of the service.
Under this factual backdrop, we applied the two conditions and distinguished between the teachers who were absent
from their respective classes because they participated in the illegal mass action, on one hand, and the teachers who
were absent for some other reason, on the other hand.
With respect to the teachers who participated in the illegal mass actions, we ruled that they were not entitled to back
salaries since they were not exonerated. We explained that liability for a lesser offense, carrying a penalty less than
dismissal, is not equivalent to exoneration. On the second condition, we ruled that their suspension is not unjustified
since they have given a ground for their suspension – i.e., the unjustified abandonment of their classes to the
prejudice of their students, the very factual premise of the administrative charges against them – for which they were
suspended.
With respect to the teachers who were away from their classes but did not participate in the illegal strike, the Court
awarded them back salaries, considering that: first, they did not commit the act for which they were dismissed and
suspended; and second, they were found guilty of another offense, i.e., violation of reasonable office rules and
regulations which is not penalized with suspension or dismissal. The Court ruled that these teachers were totally
exonerated of the charge, and found their dismissal and suspension likewise unjustified since the offense they were
found to have committed only merited the imposition of the penalty of reprimand.1avvphi1
These cases show the Court’s consistent stand in determining the propriety of the award of back salaries. The
government employees must not only be found innocent of the charges; their suspension must likewise be shown to
be unjustified.
The Present Case
We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended
from work, following his dismissal until his reinstatement to his former position. The records show that the charges of
grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt
motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found
that the charge of dishonesty was well refuted by the respondent’s evidence showing that he rendered overtime work
on the days in question.
We fully respect the factual findings of the CSC especially since the CA affirmed these factual findings. However, on
the legal issue of the respondent’s entitlement to back salaries, we are fully in accord with the CA’s conclusion that
the two conditions to justify the award of back salaries exist in the present case.
The first condition was met since the offense which the respondent was found guilty of (violation of reasonable rules
and regulations) stemmed from an act (failure to log in and log out) different from the act of dishonesty (claiming
overtime pay despite his failure to render overtime work) that he was charged with.
The second condition was met as the respondent’s committed offense merits neither dismissal from the service nor
suspension (for more than one month), but only reprimand.
In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until his
reinstatement to his former position - i.e., for the period of his preventive suspension pending appeal. For the period
of his preventive suspension pending investigation, the respondent is not entitled to any back salaries per our ruling
in Hon. Gloria.67
WHEREFORE, the petition is hereby DENIED. Costs against the petitioner.
SO ORDERED.
G.R. No. 80270 February 27, 1990
CITY MAYOR OF ZAMBOANGA, petitioner,
vs.
COURT OF APPEALS AND EUSTAQUIO C. ARGANA, respondents.

GANCAYCO, J.:
Public office is a public trust. All government officials and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and efficiency act with patriotism and justice, and lead modest
lives. 1 This constitutional mandate should always be in the minds of all public servants to guide them in their actions
during their entire tenure in the government service.
Upon appointment to a public office, an officer or employee is required to take his oath of office whereby he solemnly
swears to support and defend the Constitution, bear true faith and allegiance to the same; obey the laws, legal
orders and decrees promulgated by the duly constituted authorities; and faithfully discharge to the best of his ability
the duties of the position he will hold.
Yet, time and again, We hear of public servants acting in utter defiance of the principles enshrined in the Constitution
and in complete disregard of what they swore in the name of God before assuming their posts in the public service.
Consequently, the people's trust and faith in the government has slowly eroded. There in very little respect and
confidence left.
This in turn has resulted in a widespread feeling of disappointment and dissatisfaction in the government machinery.
Gone are the days when one of the shining ambitions of a college graduate was to have a career in the civil service;
when working in the government meant self-fulfillment. Now, young and talented graduates shy away from the public
service which is unfortunately perceived to be unattractive and totally lacking in luster. It is only when those in the
government sector serve with the highest degree of responsibility, integrity, loyalty and efficiency and act in
accordance with the tenets of the Constitution can such lost respect and confidence be regained. This case is typical
of what a public servant should not be.
The Chief Veterinarian of Zamboanga City, a civil servant, is the private respondent herein. Three female employees
of the Office of the City Veterinarian of Zamboanga City headed by private respondent, filed an administrative
complaint against him for Dishonesty, Oppression and Disgraceful and Immoral Conduct for the following acts he
allegedly committed —
Against Mrs. Pilar N. de los Santos —
for inviting and/or insisting, on several occasions, that she go with
respondent to the Zamboanga Plaza Hotel, Zamboanga City, and by
deliberately suggesting that her husband should not have any knowledge
of his proposals and suggesting further that she should not report for work
any more but for her to wait in the premises of the Macatangay Drug
Store, Zamboanga City, so that both of them can later proceed to the
Zamboanga Plaza Hotel; for contriving and/or manuevering to assign her
husband, Expedito de los Santos, to remote districts in the East Coast of
the City in order that he (Argana) can conveniently pursue his amorous
intentions and solicitations towards her; and for persisting to bother her
and trying to convince her to establish an illicit relation with him, promising
that her husband will never know about it anyway.
Against Mrs. Ma. Carmen G. (Alpichi) —
For his persistent act of inviting her on several occasions to go with him to
discreet eateries, and on one occasion, to dine and drink with him at the
Happy Landing Restaurant at the Zamboanga City Airport during office
hours in order to persuade her to accept his amorous advances and even
offered her money as capital for a sari-sari store; and in taking her to dine
and drink with him in a certain store owned by Olegario Barrios at Ayala,
Zamboanga City, during office hours, which lasted until 6:00 o'clock in the
evening and made several amorous passes at her.
Against Mrs. Rosa Sonia Guevarra
For inviting her to accompany him in his jeep to go out on official missions
but instead taking her to a canteen inside the Edwin Andrews Air Base,
Zamboanga City, to be with him privately and then subsequently inviting
her to go and play bowling with him and to have a date with him at the
Sultana Hotel the next day; and for offering her the amount of P50.00 to
convince her to submit to his amorous intentions. 2
On November 31, 1983, in due course, the then Mayor of Zamboanga City, Hon. Cesar Climaco, rendered a
Decision, finding private respondent guilty of Disgraceful and Immoral Conduct and penalizing him with "forced
resignation from service with prejudice to reinstatement." Private respondent appealed to the Civil Service Regional
Director who referred the case to the Merit Systems Board of the Civil Service Commission. The latter found private
respondent guilty only of Improper Conduct with a penalty of "reprimand and warning."
On appeal to the Civil Service Commission, the Decision of the Merit Systems Board dated January 4, 1985 was set
aside and the Decision of Mayor Climaco finding private respondent guilty of Disgraceful and Immoral Conduct was
sustained. The penalty of "considered resigned from service with prejudice to reinstatement" was reimposed on
private respondent.
Again, private respondent filed an appeal — this time with the Court of Appeals. On August 10, 1987, the Court of
Appeals rendered its Decision, setting aside the Decision of the Civil Service Commission and reinstating that of the
Merit Systems Board modifying the penalty thereof to "six-months suspension without pay with a stern warning that
repetition of the same or similar offense will be dealt with more severely." The Court of Appeals further ordered the
reinstatement of private respondent with full backwages after having served the penalty.
Not satisfied with the above-mentioned Decision of the Court of Appeals, the City Mayor of Zamboanga filed this
petition for review praying that the said Decision be set aside and that the Decision of the Civil Service Commission
penalizing respondent with forced resignation, be reinstated.
The first assigned error is that the Court of Appeals erred in directing the payment of private respondent's backwages
to which the Solicitor General agrees. A review of the records of this case and the applicable laws and jurisprudence
reveal that the order of payment of back salaries to private respondent is not valid.
Section 78 of the B.P. Blg. 337, otherwise known as the Local Government Code, provides for the conditions under
which a public servant who was suspended or dismissed by reason of an administrative charge, may be entitled to
full backwages, thus:
Sec. 78. Disciplinary Jurisdiction. — (1) Except as otherwise provided by law, the head of a local
government unit shall have authority to remove, separate, suspend and otherwise discipline officials
and employees under his jurisdiction. If the penalty imposed is suspension without pay for not more
than thirty days, his decision shall be final. If the penalty imposed is heavier, the decision shall be
appealable to the Civil Service Commission which has final authority upon all matters relating to the
conduct, discipline and efficiency of local government officials and employees. If the respondent is in
the career executive service, appeal shall be made to the Career Service Board.
(2) An appeal shall not prevent a decision from becoming executory, and in case the
penalty is suspension or removal, the respondent shall be considered as having been
under preventive suspension during the pendency of an appeal in the event he wins
such appeal. However, the respondent shall be paid his salary corresponding to the
period during which the appeal is pending in the event he is completely
exonerated. (Emphasis supplied.)
Under the above-quoted provision, it is required that private respondent must be exonerated of the charges in order
that he may be paid his back salaries. In the case at bar, it is quite apparent from the facts that private respondent
was not cleared of the charges. The Court of Appeals affirmed the decision of the Merit and Systems Board which on
the other hand found private respondent guilty of "Improper Conduct." It is because of this finding of guilt that the
Court of Appeals imposed a penalty of six-months suspension on private respondent. Also, the stern warning handed
down by the Court of Appeals on private respondent that a "repetition of the same or similar offense will be dealt with
more severely" only shows that the said Court did not exonerate him of the offense.
In a long line of cases, 3 this Court reiterated the principle that back salaries may be ordered paid to an officer or
employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to
be illegal. In Sales vs. Mathay, Sr., 4 this Court held that a postal clerk suspended for six months for gross neglect of
duty is not entitled to back salary if he cannot show that his suspension was unjustified or that he is innocent of the
charge.
Thus, the order of payment of full backwages in this case is without lawful basis. Indeed, to allow private respondent
to receive full back salaries would amount to rewarding him for his misdeeds and compensating him for services that
were never rendered.
As to the specific offense/s committed and the proper penalty to be imposed, the Court finds that private respondent
is guilty of "Disgraceful and Immoral Conduct" as well as "Grave Misconduct" and must be meted the penalty of
dismissal.
Under Memorandum Circular No. 30, series of 1989 issued by the Civil Service Commission, "Disgraceful and
Immoral Conduct" and "Grave Misconduct" are classified as grave offenses punishable by dismissal. The acts of
private respondent constituting the aforementioned administrative offenses were duly established as shown in the
following testimonies of his three female subordinates:
From Mrs. Pilar de los Santos —
That in connection with the respondent's invitation to her to dine with him
at the Zamboanga Plaza Hotel, when she suggested to him that she bring
her husband along with her, respondent refused saying that he will not
enjoy while her husband is around (TSN, p. 12); that suspicious of the
respondent's motive, she turned down the invitation (TSN, p. 14)-l that the
 incident prompted her to tender her letter of resignation from the office;
that she told the incident to Mr. Vicente Lacandalo, another employee in
the Office of the City Veterinarian; that Mr. Lacandalo talked to respondent
regarding the matter, then respondent came out later of his room and he
was very mad at her; that she did not let her husband know about the
incident knowing that he has a bad temper; that because of her repeated
refusal to accept respondent harassed her by refusing to sign her
clearance for transfer to the Sangguniang Pampook; and that the
respondent forced her to sign a promissory note in connection with the lost
typewriter as a condition to approving her transfer to the Sangguniang
Pampook (TSN, pp. 17-26).
From Mrs. Ma. Carmen G. Alpichi —
That she was a Livestock Inspector in the Office of the City Veterinarian;
that when the respondent learned that her husband was about to leave for
Manila to attend a 45-day seminar, he (respondent) assigned her at the
airport as Quarantine Officer and while there, he frequented visiting her
and everytime he visits her, he invites her to a snack or lunch; that
respondent keeps on asking her when her husband will arrive (TSN, p.
45); that she noticed respondent's amorous intentions towards her from
1979 (TSN, p. 45); that when she informed her husband about it, he
advised her to be more careful; that she can remember that Argana invited
her three (3) times to dine with him, and she went with him to the
Sandwich Restaurant in Atilano for about three (3) hours at about 8:30 in
the morning, during office hours, on the first occasion; and for about 30
minutes on the second occasion; while it lasted from 10:00 o'clock in the
morning to 12:00 o'clock noon on the third occasion (TSN, pp. 49 & 50);
that when she asked the respondent to recommend the renewal of her
appointment he asked her what gift she is willing to give him and that in
answer thereto she said that she will do her job very well and show that
she is interested in her work, but to which respondent replied that 'it is not
a gift;' that, therefore, she asked him what gift he really wanted and to
which he replied 'the gift which (1) she will give him with all (my) her heart
that as a woman, she felt that by that statement, respondent wanted her to
give herself to him (TSN, p. 57); and that one time in the store of Olegario
Barrios in Ayala, Zamboanga City, while respondent and a certain Mr.
Policarpio were drinking beer, respondent talked to her about sex to the
effect that if a man will convince (me) her to make sex, 'ansina daw ese
sir, si quiere daw eyo man sex con el hente maskin casao, ya daw ansina'
(that if a man will convince her to make sex, a man, though married, may
have sex with another woman. (TSN, p. 61).
From Mrs, Rosa Sonia M. Guevarra —
That she was a Meat and Livestock Inspector in the Office of the City
Veterinarian, Zamboanga City; that she refused respondent's invitation to
her to go with him on bowling; that on September, 23, 1980 when she
went with respondent in his jeep he held her left hand very tightly before
she could alight from the said jeep and then he offered her P50.00; that
when she told her father-in-law about the incident on the same day he was
very mad; that when she arrived at the office in the afternoon of the same
day she related the incident to Mr. Honorato Loon, a co-employee; that
when she approached the respondent later for him to sign her application
for sick leave he asked her what gift (you) she can give to (me) him if (I)
he will sign her leave,' to which she answered she can give (you) him a
bottle of wine ... and cigarettes,' but respondent replied '(1) he can buy
those things' because 'what he really wanted is sexual intercourse (TSN,
p. 110). 5
In determining what penalty must be imposed on private respondent, the Court took into consideration the fact that
there is here not only one but three complainants, all married at that. It projects the abnormality of private
respondent's behavior consisting of a libidinous desire for women and the propensity to sexually harass members of
the opp•site sex working with him.
The manner in which he communicated his desire for the complaining ladies — proposing to meet them at hotels,
tempting them with money to submit to his advances and even coaching them to avoid being caught by their
husbands, depicts the private respondent's moral depravity.
What aggravates the situation is the undeniable circumstance that private respondent took advantage of his position
as the superior of the three ladies involved herein.
Being the chief of office, it was incumbent upon private respondent to set an example to the others as to how they
should conduct themselves in public office, to see to it that his subordinates work efficiently in accordance with Civil
Service Rules and Regulations, and to provide them with a healthy working atmosphere wherein co-workers treat
each other with respect, courtesy and cooperation, so that in the end the public interest will be benefited.
On the contrary, private respondent, who was supposed to be the head of their office, goaded his female
subordinates to dine and drink with him during office hours; asked for "gifts" in exchange for his official signature or
favor; utilized his rank to get back at those who refused his advances and those who sympathized with the latter; and
even instructed one of them not to report for work but to instead meet with him so that he could bring her to a hotel.
Such acts of private respondent cannot be condoned. He should not be let loose to pursue his lewd advances
towards lady employees in said office.
Indeed, to reinstate private respondent to his former position with full backwages would make a mockery of the
fundamental rule that a public office is a public trust and would render futile the constitutional dictates on the
promotion of morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the government
service. 6 Likewise, reinstatement would place private respondent in such a position where the persons whom he is
supposed to lead have already lost their respect for him and where his tarnished reputation would continue to hound
him.
For the sake of his former subordinates, and for his own sake, and bearing in mind that a public office must be held
by a person who is both mentally and morally fit, the Court finds private respondent guilty of "Disgraceful and
Immoral Conduct" and "Grave Misconduct" in office and he is hereby imposed the penalty of dismissal pursuant to
the provisions of Civil Service Commission Memorandum Circular No. 30, series of 1989.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 06835 is REVERSED. The Decision of the
Civil Service Commission in CSC Case No. 2322 dated July 10, 1985 is hereby reinstated, with the modification that
the penalty to be imposed on private respondent should be that of dismissal. The Court makes no pronouncement as
to costs.
SO ORDERED.
G.R. No. 174297 June 20, 2012
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
ROMEO A. LIGGAYU, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Office of the Ombudsman which assails the
Decision1 dated May 17, 2005 and the Resolution2 dated August 3, 2006 issued by the Court of Appeals (CA) in CA-
G.R. SP No. 65572.
The antecedent facts are as follows:
The former Chairman and General Manager of the Philippine Charity Sweepstakes Office (PCSO), retired Justice
Cecilia Muñoz-Palma, authorized the release from her discretionary funds a cash advance in the amount of
₱45,000.00 to cover the expenses of the PCSO Legal Department in attending to cases pending before the
Ombudsman and the various courts in Metro Manila.3 Respondent Atty. Romeo A. Liggayu was a manager in the
legal department to whom the cash advance was issued under Check No. 165755 dated July 8, 1999.4 The actual
expenses incurred by the legal department for the purchase of food and drinks while attending to the court cases
amounted to ₱45,717.39. To liquidate the cash advance and reimbursement, Disbursement Voucher No.
0499110507 dated December 3, 1999 was thereafter submitted wherein respondent attached thereto the various
official receipts (ORs) as reflected in the summary of expenses for the food and drinks purchased on different
dates5which included among others: (1) receipt6 dated July 8, 1999 issued by New Concepcion Cafe and Restaurant
in the amount of P1,525.50; and (2) Sales Invoice No. 312037 dated October 2, 1999 issued by Nature's Cafe in the
amount of ₱2,204.00.
On July 4, 2000, then PCSO Corporate Auditor, Atty. Milagros Romero (Romero), issued a Notice of Suspension8 for
the amount of ₱23,577.14 as she found some deficiencies with the documents submitted by respondent, to wit: (1)
absence of accomplishment reports; and (2) excessive expenses for food and beverages. Later, Romero issued a
Notice of Disallowance9 in the total amount of ₱7,519.00 from the cash advance of respondent, which included
among others the amounts of ₱2,204.00 under Nature's Cafe Sales Invoice no. 31203 and ₱1,525.50 under New
Concepcion Cafe and Restaurant Cash Invoice No. 36166. The disallowance was due to the findings of the audit
team that the amount of ₱2,204.00 covered by Invoice No. 31203 was merely written or caused to be written by
respondent as the duplicate copy of the invoice in possession of the establishment was found to be blank per
certification by the latter's cost comptroller; and that the OR corresponding to the said sales invoice which was for the
same amount was actually issued to and paid by United Moonwalk Village Homeowners Association, Inc. (UMVHAI).
On the other hand, the New Concepcion Cafe and Restaurant Cash Invoice No. 36166 in the amount of ₱1,525.00
was discovered to be falsified since the duplicate copy on file with the restaurant was only for the amount of
₱525.00; that the figure "1" which appeared before the numbers 525.50 was only added after the issuance of the
said invoice to make it appear that the bill was for the amount of ₱1,525.50; and that the establishment's proprietor
certified as to the correctness of the amount appearing in the duplicate copy of the sales invoice. Consequently, then
PCSO General Manager Ricardo Golpeo (Golpeo) formally charged respondent of dishonesty, gross misconduct and
conduct prejudicial to the best interest of the service.10 On July 19, 2000, Golpeo placed respondent under preventive
suspension for a period of 90 days pursuant to the July 18, 2000 meeting of the PCSO Board of Directors.11 He also
issued an Order12 on even date for the creation of a Special Investigating Committee to conduct the formal
investigation on the charge filed against respondent.
Respondent filed his Answer13 denying the charges against him. He explained that as to the Nature Cafe's Sales
Invoice No. 31203 in the amount of ₱2,204.00, he had no control in the preparation of the said sales invoice,
particularly the duplicate copy thereof; that if the duplicate copy was left blank, then it should be the establishment
which must be investigated before the BIR; that the sales invoice given to him bore the cashier's signature
evidencing receipt of the amount indicated therein and presumed to be valid, since it was numbered and contained
the tax identification number of the establishment; and that he is a member of UMVHAI but it was possible that his
identity was not known to the cafe's staff, thus the official receipt was issued to UMVHAI.
As to the New Concepcion Cafe's Cash Invoice No. 36166 in the amount of ₱1,525.50, respondent argued that he
merely received the cash invoice and had no participation in the preparation thereof; that business establishments
usually reduced the amounts appearing in the duplicate of their receipts in order to enable them to pay lesser tax.
Respondent also alleged in his answer the reasons why he could not get a fair and impartial trial from the special
investigating committee, thus prayed for an independent committee to try his case.
On August 1, 2000, respondent filed with the Regional Trial Court (RTC) of Quezon City, a Petition for Certiorari with
Damages and a Writ of Preliminary Mandatory Injunction14 to enjoin then PCSO Chairman Rosario Lopez and the
Board of Directors from implementing the preventive suspension. The case was docketed as Q-00-41464 raffled off
to Branch 225.
On September 1, 2000, the RTC issued an Order15 granting the prayer for the issuance of an injunctive writ and
ordered the aforementioned PCSO officials to: (a) reinstate respondent to his position as Manager of its Legal
Department; (b) lift the preventive suspension imposed on him; (c) suspend the investigation on the formal charge
against him and/or from doing or procuring to be done acts which tend to render any judgment in the case ineffectual
until after the case shall have been decided on the merit or until further order from the court. A writ16 was
subsequently issued.
Earlier however, in a meeting held on July 28, 2000, the PCSO Board of Directors had already resolved to endorse
the formal charge for dishonesty, gross misconduct and conduct prejudicial to the best interest of the service against
respondent to the Resident Ombudsman for investigation and resolution. The Resident Ombudsman in turn
forwarded the charge to petitioner for administrative adjudication in order to allay respondent's fear of not getting a
fair treatment at the PCSO. He also recommended respondent's preventive suspension.
Before petitioner could issue an order requiring respondent to file his counter-affidavit on the charge, the latter filed a
Manifestation17 informing the former of a writ of preliminary injunction issued by the RTC.
In an Order18 dated October 18, 2000, petitioner resolved the manifestation regarding the RTC's issuance of an
injunction. It found that the injunction had been directed not against petitioner but to the PCSO officials named
therein; that it merely sought to enjoin the conduct of a formal investigation by the PCSO management, thus such
injunction could not be interpreted as to bar petitioner from its administrative investigation. The same Order placed
respondent under preventive suspension for six (6) months without pay and required him to file his counter-affidavit.
The following day, petitioner issued an Order19 directing PCSO to implement the preventive suspension order.
Respondent filed a motion for reconsideration which petitioner denied in an Order20 dated October 26, 2000.
Respondent then filed with the CA a petition for review on certiorari under Rule 43 assailing these orders. The
petition was docketed as CA-G.R. SP No. 62760. During its pendency, petitioner had rendered a Decision dated
March 30,
2001 on the merits, thus the petition filed with the CA was subsequently dismissed on November 3, 2004.21
Petitioner's Decision22 dated March 30, 2001 found respondent guilty of the charge of dishonesty, grave misconduct
and conduct prejudicial to the best interest of the service and imposed upon him the penalty of dismissal from the
service.
In an Order23 dated April 18, 2001, petitioner's Decision was modified so as to include the accessory penalty of
forfeiture of leave credits and retirement benefits and disqualification for re-employment in the government service.
Respondent's motion for reconsideration was denied by petitioner in its Order24 dated May 15, 2001 and the PCSO
General Manager was instructed to immediately implement the Order.
Respondent then filed with the CA a petition for review under Rule 43 with application for the issuance of a
temporary restraining order and/or preliminary injunction entitled, Atty. Romeo A. Liggayu v. Ricardo G. Golpeo.25
On May 17, 2005, the CA rendered its assailed Decision reversing and setting aside petitioner's Orders.
The CA stated that petitioner's conclusion on the guilt of respondent was based on its findings that: first, the
respondent had falsified Official Receipt No. 36166 by adding the digit "1" before the amount ₱525.50 to make it
appear that the cost of the food and drinks he purchased was ₱1,525.50; second, respondent used the falsified
official receipt to support his disbursement of public funds; third, Sales Invoice No. 31203 was actually issued to
UMVHAI for food and drinks it purchased at the cost of ₱2,204.00; and fourth, the sales invoice of UMVHAI was
used by respondent to support his disbursement of public funds.
The CA found, however, that the original copy of Official Receipt No. 36166 which was submitted for liquidation was
never proven to be a falsified document; that mere discrepancies between the two copies of one document did not
establish the falsity of one copy unless the veracity of the other copy was first established, since it was equally
possible for the false entry to be found in the latter copy. As to petitioner's finding that Sales Invoice No. 31203 was
actually issued to UMVHAI and not to respondent, the CA found the evidence presented to be at odds with each
other. It found that Elenita So was not the one who issued the official receipt to UMVHAI, since her signature therein
differed from her signature in her certification and in her affidavit; thus, she was not the proper person to testify on
the transaction embodied in the official receipt; that there was no basis for petitioner to conclude that the actual
transaction involved in Sales Invoice No. 31203 was that stated in the official receipt.
The Office of the Government Corporate Counsel (OGCC) filed in behalf of the PCSO General Manager a motion for
reconsideration. Petitioner filed an Omnibus Motion for Intervention and Reconsideration. The CA denied the motions
for reconsideration in a Resolution dated August 3, 2006.
In denying reconsideration, the CA reiterated its findings contained in its May 17, 2005 decision. In addition, the CA
held that the testimony given by Elenita So in Criminal Case No. Q-01-100794, which involved the matter of Sales
Invoice No. 31203 which was claimed to be actually issued to UMVHAI and not to respondent, established that So
categorically admitted that the signature appearing in Sales Invoice No. 31203 was her signature and that the entries
therein were entirely written by her and that she had no personal knowledge that OR No. 3132 issued to UMVHAI
corresponded to Sales Invoice No. 31203 issued to respondent as she was not the one who issued the OR; and that
she was merely made to sign the certification stating she was the one who issued OR No. 3132 which was used as
evidence against respondent.
Hence, this petition wherein petitioner raises the following grounds:
I
RESPONDENT LIGGAYU'S INTERCALATION OF THE DIGIT "1" BEFORE THE AMOUNT "[525.50]," TO MAKE IT
APPEAR THAT HE PAID "₱1,525.00" TO NEW CONCEPCION CAFE AND RESTAURANT UNDER ITS OFFICIAL
RECEIPT NO. 36166 THEREBY ALLOWING HIM TO CLAIM THE LATTER AMOUNT CONSTITUTES
DISHONESTY, GRAVE MISCONDUCT AND CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE
SERVICE.
II
RESPONDENT LIGGAYU'S USAGE OF SALES INVOICE NO. 31203 FOR ₱2,204.00 FOR THE LIQUIDATION OF
HIS CASH ADVANCE, WHICH WAS ISSUED BY NATURE'S CAFE TO AND PAID FOR BY THE UNITED
MOONWALK VILLAGE HOMEOWNER'S ASSOCIATION, INC. (UMVHAI) FOR FOOD AND DRINKS SERVED TO
ITS MEMBERS DURING ITS MEETING ON A SUNDAY, LIKEWISE CONSTITUTES DISHONESTY, GRAVE
MISCONDUCT AND CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE.26
Petitioner assails the factual findings of the CA. It contends that as between the OR in the amount of ₱1,525.50
submitted by respondent to support his liquidation and the duplicate OR in the amount of ₱525.50 on file with the
business establishment which issued the same, the duplicate OR is more credible, as the business establishment is
a disinterested witness to respondent's purchase; and that it is pure speculation to conclude that the business
establishment's duplicate ORs bore understated amounts to evade taxation, since respondent had not adduced
evidence to show that New Concepcion Cafe is a tax evader.
Petitioner claims that as to Sales Invoice No. 31203 issued by Nature's Cafe, the CA erred in discarding the
declarations of Elenita So that the amount of ₱2,204.00 under Sales Invoice No. 31203 was paid for by UMVHAI and
not by respondent; and that respondent's utilization of the said invoice in liquidating his cash advance is a clear act of
misrepresentation.
In his Comment/Opposition, respondent informed us that the PCSO, through its Board of Directors, adopted and
approved Board Resolution No. 415 on August 30, 2006, which accepted the CA decision and decided not to appeal
the same which reversed petitioner's order dismissing respondent from the service; that the OGCC, acting as
PCSO's agent and counsel, did not anymore file any petition assailing the CA decision. Respondent also states that
earlier in November 2002, PCSO had already cleared him of all his property and cash accountabilities with the office
and that he had already received all the salaries and benefits due him; thus, rendering the instant petition moot and
academic. He also contends that petitioner has no standing to file the case as it cannot be considered as an
aggrieved party who can file the appeal, because it is neither respondent's employer nor has it any interest that was
prejudiced by the CA decision. Finally, respondent argues that the PCSO failed to substantiate the charge against
him.
In its Reply, petitioner contends that it has standing to file the petition, citing Philippine National Bank v. Garcia,
Jr.;27that it is the party adversely affected by the ruling of the CA which seriously prejudiced the administration of
disciplinary justice in the bureaucracy; thus, it has a duty to intervene and represent the interest of the State to
preserve the principles of public accountability.
The threshold issue for resolution is whether or not petitioner has legal standing to file the instant petition for review
on certiorari assailing the CA ruling which reversed petitioner's decision.
We find that petitioner has no legal standing to file this petition.
In National Appellate Board of the National Police Commission (NAPOLCOM) v. Mamauag28 (Mamauag), citing
Mathay, Jr, v. Court of Appeals,29 we ruled that the disciplining authority should not appeal the reversal of its decision
and made the following ratiocination:
RA 6975 itself does not authorize a private complainant to appeal a decision of the disciplining authority. Sections 43
and 45 of RA 6975 authorize "either party" to appeal in the instances that the law allows appeal. One party is the
PNP member-respondent when the disciplining authority imposes the penalty of demotion or dismissal from the
service. The other party is the government when the disciplining authority imposes the penalty of demotion but the
government believes that dismissal from the service is the proper penalty.
However, the government party that can appeal is not the disciplining authority or tribunal which previously
heard the case and imposed the penalty of demotion or dismissal from the service. The government party
appealing must be the one that is prosecuting the administrative case against the respondent. Otherwise, an
anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being
impartial and detached, becomes an active participant in prosecuting the respondent. Thus, in Mathay, Jr. v.
Court of Appeals, decided after Dacoycoy, the Court declared:
To be sure when the resolutions of the Civil Service Commission were brought to the Court of Appeals, the Civil
Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission
can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for
review."
In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and
became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought
before it directly or on appeal, including contested appointments and to review decisions and actions of its offices
and agencies," not to litigate.30 (Emphasis supplied.)
In Office of the Ombudsman v. Sison,31 where the issue of whether the Ombudsman, which had rendered the
decision pursuant to its administrative authority over public officers and employees, has the legal interest to intervene
in the case where its decision was reversed on appeal, we ruled that it is not the proper party to intervene applying
the above-quoted disquisition we made in Mamauag. We further stated that:
Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant case. It must
remain partial and detached. More importantly, it must be mindful of its role as an adjudicator, not an
advocate.
It is an established doctrine that judges should detach themselves from cases where their decisions are appealed to
a higher court for review. The raison d'etre for such a doctrine is the fact that judges are not active combatants in
such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to
decide the issues without the judges' active participation. When judges actively participate in the appeal of their
judgment, they, in a way, cease to be judicial and have become adversarial instead.
In Pleyto v. Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG), the Court applied this
doctrine when it held that the CA erred in granting the Motion to Intervene filed by the Office of the Ombudsman, to
wit:
The court or the quasi-judicial agency must be detached and impartial, not only when hearing and resolving the case
before it, but even when its judgment is brought on appeal before a higher court. The judge of a court or the officer of
a quasi-judicial agency must keep in mind that he is an adjudicator who must settle the controversies between
parties in accordance with the evidence and applicable laws, regulations and/or jurisprudence. His judgment should
already clearly and completely state his findings of fact and law. There must be no more need for him to justify
further his judgment when it is appealed before appellate courts. When the court judge or the quasi-judicial officer
intervenes as a party in the appealed case, he inevitably forsakes his detachment and impartiality, and his interest in
the case becomes personal since his objective now is no longer only to settle the controversy between the original
parties (which he had already accomplished by rendering his judgment), but more significantly, to refute the
appellant's assignment of errors, defend his judgment, and prevent it from being overturned on appeal.32 (Emphasis
supplied.)
In Office of the Ombudsman v. Magno,33 we ruled that:
x x x Every decision rendered by the Ombudsman in an administrative case may be affirmed, but may also be
modified or reversed on appeal - this is the very essence of appeal. In case of modification or reversal of the decision
of the Ombudsman on appeal, it is the parties who bear the consequences thereof, and the Ombudsman itself would
only have to face the error/s in fact or law that it may have committed which resulted in the modification or reversal of
its decision.34
Clearly, the government party that can appeal is not the disciplining authority or tribunal which previously heard the
case and imposed the penalty of dismissal from the service. The government party appealing must be one that is
prosecuting the administrative case against the respondent. In this case, it is the PCSO, through its then General
Manager Golpeo, which filed the administrative case against respondent for the latter's alleged act of dishonesty in
falsifying the OR and sales invoice he submitted in the liquidation of his cash advance. Thus, it is the PCSO which is
deemed the prosecuting government party which can appeal the CA decision exonerating respondent of the
administrative charge. It is the PCSO which would stand to suffer, since the CA decision also ordered respondent's
reinstatement, thus, the former would be compelled to take back to its fold a perceived dishonest employee.
Notwithstanding, the PCSO did not file any petition assailing the CA decision. In fact, the PCSO, through its Board of
Directors, adopted and approved Board Resolution No. 415 on August 30, 2006, to wit:
RESOLVED, that the Board of Directors of PCSO accept, as it hereby accepts, and to no longer appeal the
Decisions of the Court of Appeals dated 17 May 2005 and 03 August 2006 reversing and setting aside the orders of
the Ombudsman dismissing former PCSO Legal Department Manager Atty. Romeo A. Liggayu for Dishonesty and
Grave Misconduct and Conduct Prejudicial to the Interest of the Service, and ordering the payment of all the salaries
and benefits due Atty. Liggayu from his suspension to the time of his attainment of his retirement age and to restore
him all retirement benefits and privileges to which he is entitled, subject to the Civil Service Rules and Regulations,
and the availability of funds and applicable accounting and auditing laws, rules and regulations.35
Petitioner cites Philippine National Bank v. Garcia, Jr. (Garcia)36 to show that it has legal interest to file this petition.
In that case, the PNB charged its employee, Ricardo V. Garcia, with gross neglect of duty in connection with the
funds he had lost in the amount of ₱7 million. The PNB’s Administration Adjudication Office found him guilty as
charged and imposed upon him the penalty of forced resignation. On appeal, the Civil Service Commission (CSC)
exonerated Garcia from the administrative charge against him. The PNB filed a petition with the CA which dismissed
the same, ruling that the only party adversely affected by the decision, namely the government employee, may
appeal an administrative case. It held that a decision exonerating a respondent in an administrative case is final and
unappealable. Consequently, the PNB filed a petition with us. In accordance with our ruling in Civil Service
Commission v. Dacoycoy,37 we ruled that the PNB had the legal standing to appeal to the CA the CSC resolution
exonerating Garcia. We said that after all, PNB was the aggrieved party which complained of Garcia's acts of
dishonesty.1âwphi1 Should Garcia be finally exonerated, it might then be incumbent upon the PNB to take him back
into its fold. The PNB should, therefore, be allowed to appeal a decision that, in its view, hampered its right to select
honest and trustworthy employees, so that it can protect and preserve its name as a premier banking institution in
the country.
PNB v. Garcia, Jr.38 is not on all fours with the present case.1âwphi1 First, herein respondent was not exonerated of
the administrative charge of dishonesty, gross misconduct and conduct prejudicial to the best interest of the service,
but was found guilty thereof by petitioner and was meted the penalty of dismissal. Thus, it was the respondent who
filed the petition with the CA as the party aggrieved by petitioner's decision. Second, the PCSO, which is supposedly
the party aggrieved in the CA decision, did not file any petition, but it was the petitioner - the administrative agency -
which rendered the decision reversed by the CA. Third, PNB v. Garcia39 must be read together with Mathay, Jr. v.
CA40 and National Appellate Board of the National Police Commission v. Mamauag41 wherein we qualified our
declaration in CSC v. Dacoycoy42 which was cited in PNB v. Garcia43 that the government party that can appeal the
decision in administrative cases must be the party prosecuting the case and not the disciplining authority or tribunal
which heard the administrative case.
Considering that petitioner has no legal interest or standing to appeal and seek the nullification of the CA decision
exonerating respondent from the administrative charge of dishonesty, grave misconduct, and conduct prejudicial to
the best interest of the service, we, therefore find no need to delve on the merits of this case.
WHEREFORE, the petition is DENIED. The Decision dated May 17, 2005 and the Resolution dated August 3, 2006
of the Court of Appeals in CA-G.R. SP No. 65572 are hereby AFFIRMED.
SO ORDERED.
G.R. No. 180291 July 27, 2010
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as
PRESIDENT and GENERAL MANAGER of the GSIS, Petitioners,
vs.
DINNAH VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL RUBIO, ROWENA THERESE B.
GRACIA, PILAR LAYCO, and ANTONIO JOSE LEGARDA, Respondents.
DECISION
MENDOZA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside the
August 31, 2007 Decision1 of the Court of Appeals (CA), in CA-G.R. SP No. 98952, dismissing the petition for
certiorari of Government Service Insurance System (GSIS) assailing the Civil Service Commission's Resolution No.
062177.
THE FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed separate formal
charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A. Echavez, Rodel Rubio, Rowena
Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the
Best Interest of the Service pursuant to the Rules of Procedure in Administrative Investigation (RPAI) of GSIS
Employees and Officials, III, D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on
Administrative Cases in the Civil Service (URACCS), in accordance with Book V of the Administrative Code of 1987,
committed as follows:
That on 27 May 2005, respondent, wearing red shirt together with some employees, marched to or appeared
simultaneously at or just outside the office of the Investigation Unit in a mass demonstration/rally of protest and
support for Messrs. Mario Molina and Albert Velasco, the latter having surreptitiously entered the GSIS premises;
xxx xxx xxx
That some of these employees badmouthed the security guards and the GSIS management and defiantly raised
clenched fists led by Atty. Velasco who was barred by Hearing Officer Marvin R. Gatpayat in an Order dated 24 May
2005 from appearing as counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as the
Code of Conduct and Ethical Standards for Public Officials and Employees;
That respondent, together with other employees in utter contempt of CSC Resolution No. 021316, dated 11 October
2002, otherwise known as Omnibus Rules on Prohibited Concerted Mass Actions in the Public Sector caused alarm
and heightened some employees and disrupted the work at the Investigation Unit during office hours.2
This episode was earlier reported to PGM Garcia, through an office memorandum dated May 31, 2005, by the
Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the same day, the Manager of the GSIS
Investigation Unit (GSIS-IU), Atty. Lutgardo Barbo, issued a memorandum to each of the seven (7) respondents
requiring them to explain in writing and under oath within three (3) days why they should not be administratively dealt
with.3
Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others, submitted a letter-
explanation to Atty. Barbo dated June 6, 2005. Denying that there was a planned mass action, the respondents
explained that their act of going to the office of the GSIS-IU was a spontaneous reaction after learning that their
former union president was there. Aside from some of them wanting to show their support, they were interested in
that hearing as it might also affect them. For her part, respondent Villaviza submitted a separate letter explaining that
she had a scheduled pre-hearing at the GSIS-IU that day and that she had informed her immediate supervisor about
it, attaching a copy of the order of pre-hearing. These letters were not under oath.4
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or Conduct Prejudicial to the
Best Interest of the Service against each of the respondents, all dated June 4, 2005. Respondents were again
directed to submit their written answers under oath within three (3) days from receipt thereof.5 None was filed.
On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all seven (7) respondents
guilty of the charges and meting out the penalty of one (1) year suspension plus the accessory penalties appurtenant
thereto.
On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser offense of Violation of
Reasonable Office Rules and Regulations and reduced the penalty to reprimand. The CSC ruled that respondents
were not denied their right to due process but there was no substantial evidence to hold them guilty of Conduct
Prejudicial to the Best Interest of the Service. Instead,
x x x. The actuation of the appellants in going to the IU, wearing red shirts, to witness a public hearing cannot be
considered as constitutive of such offense. Appellants' (respondents herein) assembly at the said office to express
support to Velasco, their Union President, who pledged to defend them against any oppression by the GSIS
management, can be considered as an exercise of their freedom of expression, a constitutionally guaranteed right.6x
xx
PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of Appeals via a Petition
for Review under Rule 43 of the Rules on Civil Procedure.7 The CA upheld the CSC in this wise:
The Civil Service Commission is correct when it found that the act sought to be punished hardly falls within the
definition of a prohibited concerted activity or mass action. The petitioners failed to prove that the supposed
concerted activity of the respondents resulted in work stoppage and caused prejudice to the public service. Only
about twenty (20) out of more than a hundred employees at the main office, joined the activity sought to be punished.
These employees, now respondents in this case, were assigned at different offices of the petitioner GSIS. Hence,
despite the belated claim of the petitioners that the act complained of had created substantial disturbance inside the
petitioner GSIS' premises during office hours, there is nothing in the record that could support the claim that the
operational capacity of petitioner GSIS was affected or reduced to substantial percentage when respondents
gathered at the Investigation Unit. Despite the hazy claim of the petitioners that the gathering was intended to force
the Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molina's case and allow Atty. Velasco
to represent Atty. Molina in his administrative case before petitioner GSIS, there is likewise no concrete and
convincing evidence to prove that the gathering was made to demand or force concessions, economic or otherwise
from the GSIS management or from the government. In fact, in the separate formal charges filed against the
respondents, petitioners clearly alleged that respondents "marched to or appeared simultaneously at or just outside
the office of the Investigation Unit in a mass demonstration/rally of protest and support for Mssrs. Mario Molina and
Albert Velasco, the latter surreptitiously entered the GSIS premises." Thus, petitioners are aware at the outset that
the only apparent intention of the respondents in going to the IU was to show support to Atty. Mario Molina and
Albert Velasco, their union officers. The belated assertion that the intention of the respondents in going to the IU was
to disrupt the operation and pressure the GSIS administration to be lenient with Atty. Mario Molina and Albert
Velasco, is only an afterthought.8
Not in conformity, PGM Garcia is now before us via this Petition for Review presenting the following:
STATEMENT OF THE ISSUES
I
WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE PROVISIONS OF THE RULES
OF COURT ON THE EFFECT OF FAILURE TO DENY THE ALLEGATIONS IN THE COMPLAINT AND FAILURE
TO FILE ANSWER, WHERE THE RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE
ANY RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.
II
WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS CANNOT BE EQUATED WITH DUE PROCESS
IN JUDICIAL SENSE AUTHORIZES AN ADMINISTRATIVE TRIBUNAL TO CONSIDER IN EVIDENCE AND GIVE
FULL PROBATIVE VALUE TO UNNOTARIZED LETTERS THAT DID NOT FORM PART OF THE CASE RECORD.
III
WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS BASED ON EVIDENCE ON RECORD BUT
MAKES A CONCLUSION OF LAW BASED ON THE ALLEGATIONS OF A DOCUMENT THAT NEVER FORMED
PART OF THE CASE RECORDS IS VALID.
IV
WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE OPERATIONAL CAPACITY OF AN
AGENCY, DUE TO UNRULY MASS GATHERING OF GOVERNMENT EMPLOYEES INSIDE OFFICE PREMISES
AND WITHIN OFFICE HOURS, IS REQUIRED TO HOLD THE SAID EMPLOYEES LIABLE FOR CONDUCT
PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE PURSUANT TO CSC RESOLUTION NO. 021316.
V
WHETHER AN UNRULY MASS GATHERING OF TWENTY EMPLOYEES, LASTING FOR MORE THAN AN HOUR
DURING OFFICE HOURS, INSIDE OFFICE PREMISES AND WITHIN A UNIT TASKED TO HEAR AN
ADMINISTRATIVE CASE, TO PROTEST THE PROHIBITION AGAINST THE APPEARANCE OF THEIR LEADER
AS COUNSEL IN THE SAID ADMINISTRATIVE CASE, FALLS WITHIN THE PURVIEW OF THE
CONSTITUTIONAL GUARANTEE TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY.
VI
WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF THEIR POSTS FOR MORE THAN AN
HOUR TO HOLD AN UNRULY PROTEST INSIDE OFFICE PREMISES ONLY CONSTITUTES THE
ADMINISTRATIVE OFFENSE OF VIOLATION OF REASONABLE OFFICE RULES AND REGULATIONS.9
The Court finds no merit in the petition.
Petitioners primarily question the probative value accorded to respondents' letters of explanation in response to the
memorandum of the GSIS-IU Manager. The respondents never filed their answers to the formal charges. The
petitioners argue that there being no answers, the allegations in the formal charges that they filed should have been
deemed admitted pursuant to Section 11, Rule 8 of the Rules of Court which provides:
SECTION 11. Allegations not specifically denied deemed admitted.- Material averment in the complaint, other than
those as to the amount of liquidated damages, shall be deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed admitted if not denied specifically and under oath.
According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1, Section 4 of the Rules of
Court which reads:
SECTION 4. In what cases not applicable. - These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or
in a suppletory character and whenever practicable and convenient. (underscoring supplied)
The Court does not subscribe to the argument of the petitioners. Petitioners' own rules, Rule XI, Section 4 of the
GSIS' Amended Policy and Procedural Guidelines No. 178-04, specifically provides:
If the respondent fails to file his Answer within five (5) working days from receipt of the Formal Charge for the
supporting evidence, when requested, he shall be considered to have waived his right to file an answer and the PGM
or the Board of Trustees, in proper cases, shall render judgment, as may be warranted by the facts and evidence
submitted by the prosecution.
A perusal of said section readily discloses that the failure of a respondent to file an answer merely translates to a
waiver of "his right to file an answer." There is nothing in the rule that says that the charges are deemed admitted. It
has not done away with the burden of the complainant to prove the charges with clear and convincing evidence.
It is true that Section 4 of the Rules of Court provides that the rules can be applied in a "suppletory character."
Suppletory is defined as "supplying deficiencies."10 It means that the provisions in the Rules of Court will be made to
apply only where there is an insufficiency in the applicable rule. There is, however, no such deficiency as the rules of
the GSIS are explicit in case of failure to file the required answer. What is clearly stated there is that GSIS may
"render judgment as may be warranted by the facts and evidence submitted by the prosecution."
Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case, petitioners must remember
that there remain averments that are not deemed admitted by the failure to deny the same. Among them are
immaterial allegations and incorrect conclusions drawn from facts set out in the complaint.11 Thus, even if
respondents failed to file their answer, it does not mean that all averments found in the complaint will be considered
as true and correct in their entirety, and that the forthcoming decision will be rendered in favor of the petitioners. We
must not forget that even in administrative proceedings, it is still the complainant, or in this case the petitioners, who
have the burden of proving, with substantial evidence, the allegations in the complaint or in the formal charges.12
A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved against petitioners based,
not on the absence of respondents' evidence, but on the weakness of that of the petitioners. Thus, the CA wrote:
Petitioners correctly submitted the administrative cases for resolution without the respondents' respective answer to
the separate formal charges in accordance with Section 4, Rule XI of the RPAI. Being in full control of the
administrative proceeding and having effectively prevented respondents from further submitting their responsive
answer and evidence for the defense, petitioners were in the most advantageous position to prove the merit of their
allegations in the formal charges. When petitioner Winston Garcia issued those similarly worded decisions in the
administrative cases against the respondents, it is presumed that all evidence in their favor were duly submitted and
justly considered independent of the weakness of respondent's evidence in view of the principle that ''the burden of
proof belongs to the one who alleges and not the one who denies."13
On the merits, what needs to be resolved in the case at bench is the question of whether or not there was a violation
of Section 5 of CSC Resolution No. 02-1316. Stated differently, whether or not respondents' actions on May 27, 2005
amounted to a "prohibited concerted activity or mass action." Pertinently, the said provision states:
Section 5. As used in this Omnibus Rules, the phrase ''prohibited concerted activity or mass action'' shall be
understood to refer to any collective activity undertaken by government employees, by themselves or through their
employees organizations, with intent of effecting work stoppage or service disruption in order to realize their
demands of force concession, economic or otherwise, from their respective agencies or the government. It shall
include mass leaves, walkouts, pickets and acts of similar nature. (underscoring supplied)
In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts to witness a
public hearing do not amount to a concerted activity or mass action proscribed above. CSC even added that their
actuations can be deemed an exercise of their constitutional right to freedom of expression. The CA found no cogent
reason to deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights of those in the
government service, the concerted activity or mass action proscribed must be coupled with the "intent of effecting
work stoppage or service disruption in order to realize their demands of force concession." Wearing similarly colored
shirts, attending a public hearing at the GSIS-IU office, bringing with them recording gadgets, clenching their fists,
some even badmouthing the guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage
or service disruption and (ii) for the purpose of realizing their demands of force concession.
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are there to temper and
focus the application of such prohibition. Not all collective activity or mass undertaking of government employees is
prohibited. Otherwise, we would be totally depriving our brothers and sisters in the government service of their
constitutional right to freedom of expression.
Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests
against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of their
freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have
renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away.
A review of PGM Garcia's formal charges against the respondents reveals that he himself was not even certain
whether the respondents and the rest of the twenty or so GSIS employees who were at the GSIS-IU office that fateful
day marched there or just simply appeared there simultaneously.14 Thus, the petitioners were not even sure if the
spontaneous act of each of the twenty or so GSIS employees on May 27, 2005 was a concerted one. The report of
Manager Nagtalon of the GSIS-SD which was the basis for PGM Garcia's formal charges reflected such uncertainty.
Thus,
Of these red shirt protesters, only Mr. Molina has official business at the Investigation Unit during this time. The rest
abandoned their post and duties for the duration of this incident which lasted until 10:55 A.M. It was also observed
that the protesters, some of whom raised their clenched left fists, carefully planned this illegal action as evident in
their behavior of arrogance, defiance and provocation, the presence of various recording gadgets such as VCRs,
voice recorders and digital cameras, the bad mouthing of the security guards and the PGM, the uniformity in their
attire and the collusion regarding the anomalous entry of Mr. Albert Velasco to the premises as reported earlier.15
The said report of Nagtalon contained only bare facts. It did not show respondents' unified intent to effect disruption
or stoppage in their work. It also failed to show that their purpose was to demand a force concession.
In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS,16 the Court upheld the position of petitioner
GSIS because its employees, numbering between 300 and 800 each day, staged a walkout and participated in a
mass protest or demonstration outside the GSIS for four straight days. We cannot say the same for the 20 or so
employees in this case. To equate their wearing of red shirts and going to the GSIS-IU office for just over an hour
with that four-day mass action in Kapisanan ng mga Manggagawa sa GSIS case and to punish them in the same
manner would most certainly be unfair and unjust.
Recent analogous decisions in the United States, while recognizing the government's right as an employer to lay
down certain standards of conduct, tend to lean towards a broad definition of "public concern speech" which is
protected by their First Amendment. One such case is that of Scott v. Meters.17 In said case, the New York Transit
Authority (NYTA), responsible for operation of New York City's mass transit service, issued a rule prohibiting
employees from wearing badges or buttons on their uniforms. A number of union members wore union buttons
promoting their opposition to a collective bargaining agreement. Consequently, the NYTA tried to enforce its rule and
threatened to subject these union members to discipline. The court, though recognizing the government's right to
impose reasonable restrictions, held that the NYTA's rule was "unconstitutionally overboard."
In another case, Communication Workers of America v. Ector County Hospital District,18 it was held that,
A county hospital employee's wearing of a "Union Yes" lapel pin during a union organization drive constituted speech
on a matter of public concern, and the county's proffered interest in enforcing the anti-adornment provision of its
dress code was outweighed by the employee's interest in exercising his First Amendment speech and associational
rights by wearing a pro-union lapel button.19
Thus, respondents' freedom of speech and of expression remains intact, and CSC's Resolution No. 02-1316 defining
what a prohibited concerted activity or mass action has only tempered or regulated these rights. Measured against
that definition, respondents' actuations did not amount to a prohibited concerted activity or mass action. The CSC
and the CA were both correct in arriving at said conclusion.
WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well as its October 16, 2007
Resolution in CA G.R. SP No. 98952 are hereby AFFIRMED.
SO ORDERED.
G.R. No. 95244 September 4, 1991
DRS. ELLEN AMBAS, JOANNE DE LEON, MARIE ESTELLA GUNABE, NERISSA BERNAL, RICARDO
TOLENTINO and RAUL CHRIZALDO E. MORENA, petitioners,
vs.
DRS. BRIGIDA BUENASEDA and EFREN REYES; THE SECRETARY OF HEALTH; MERIT SYSTEMS
PROTECTION BOARD; AND CIVIL SERVICE COMMISSION, respondents.
Gerardo P. Morena, Jr. for petitioners.

RESOLUTION

PADILLA, J.:
Prior to their termination from employment, which is the subject of the petition at bar, petitioners were employed and
retained as resident trainee physicians by the Department of Health, assigned to the National Center for Mental
Health NCMH for purposes of brevity), under the Residency Program of the government. By authority of the
Secretary of Health, petitioners were issued temporary appointments as resident trainees on the following dates:
1. Ambas, Ellen C. – October 14, 1988
2. Bernal, Nerissa C – April 28, 1989 (Renewal)
3. De Leon, Joanne – October 13, 1988
4. Gunabe, Marie Stella – October 20, 1988
5. Morena, Raul Chrizaldo – December 29, 1988
6. Tolentino, Ricardo U. – February 24, 1989
(Renewal)
xxx xxx xxx1
Individual contracts of residency training were entered into by and between petitioners and the NCMH, wherein it
was stipulated, among others, that NCMH would temporarily employ petitioners as resident trainees for one (1) year,
renewable every year but not to exceed four (4) years; that the resident trainee would not engage in private practice
of his profession even outside his regular office hours; and that NCMH reserves the right to terminate the training of
a resident trainee for poor performance or failure to meet the standards of medical ethics, performance and behavior,
as evaluated by the Teaching/Training Staff of NCMH.2
In an undated confidential report,3 the NCMH Medical Training Officer, Dr. Efren Reyes, recommended the
termination of petitioners' services because of poor academic performance and low ranking. In addition to the
foregoing grounds cited, petitioner Dr. Raul Chrizaldo Morena was also found to have violated the Code of Conduct
of Resident Physicians. The recommendation of the Training Officer for the termination of petitioners' services was
based on the result of an evaluation conducted by the Residency Evaluation Committee on 16 June 1989 of all
NCMH resident trainees.
In letters4 dated 16 June 1989, petitioners were individually informed of the termination by the Residency Evaluation
Commission committee of their services effective 1 July 1989, with the approval of the NCMH Chief. Twice,
petitioners wrote to the Secretary of Health questioning their termination. When they received no reply, they wrote a
letter-complaint to the Chairman of the Civil Service Commission. The Civil Service Commission (CSC) also failed to
act on their letter-complaint, thus prompting them to assail their termination before the Merit Systems Protection
Board (referred to hereinafter as the Board), docketed as MSPB Case No. 299. They alleged that the termination of
their services by NCMH was arbitrary and violative of the existing civil service laws, regulations and the provisions of
PD 1424 governing the residency training program in government hospitals.
In an indorsement dated 17 August 1989, the letter-complaint filed by petitioners with the Secretary of Health was
referred by the latter to the CSC for appropriate action. In the same indorsement, the Secretary of Health confirmed
the action of NCMH in terminating petitioners' services as resident trainees.5
On 28 August 1989, the Board rendered a decision6 declaring petitioners' termination as not valid and ordered their
reinstatement to their former positions. It was the opinion of the Board that the power to remove petitioners belongs
to the appointing authority, namely, the Secretary of Health, and that, therefore, the NCMH through its representative
has no power to remove the petitioners.
After receipt of the decision of the Board, petitioners on 4 September 1989 filed a motion for execution of said
decision.7 Before said motion could be acted upon by the Board, an-exparte manifestation8 was filed by petitioners in
connection with the 3rd Indorsement of the Secretary of Health dated 17 August 1989.
On 14 September 1989 another ex-parte motion was filed by petitioners, with the Board seeking clarification of the
decision on the issue of seniority, as well as salaries and benefits accrued prior to their termination.9 On the same
date, the NCMH through its Chief moved for reconsideration of the 28 August 1989 decision of the Board, alleging
that the Board failed to appreciate the fact that the termination of petitioners' services was done in good faith and
with the approval and/or confirmation of the Secretary of Health; and that as "temporary" appointees, petitioners
could be terminated from employment at any time with or without cause.
Opposing the NCMH's motion for reconsideration, petitioners contended that the renewal of appointment of a
resident trainee is discretionary upon the Secretary of Health; that the designation in their appointment as
"temporary' does not remove the permanency of petitioners' appointment during the period of their training; and that
the motion for reconsideration filed by NCMH was a "mere scrap of paper" because petitioners were not furnished
with a copy of said motion.10
Taking cognizance of the affirmation and/or confirmation by the Secretary of Health of petitioners' termination, the
Board set aside its 28 August 1989 decision in a resolution dated 25 October 1989, declaring that —
The affirmation or concurrence of the appointing authority in their termination is tantamount to a curative act
relative to the previous act effected by the Medical Training Officer and approved by the Medical Center Chief,
NCMH. In effect, it was the appointing authority that terminated their services.
xxx xxx xxx
It bears stressing that under the laws (R.A. 1243 as amended by R.A. 2251; further amended by P.D. 1424)
governing the Residency Training provide that they shall be appointed for a period of one year renewable
every year in the discretion of the Secretary of Health or the Secretary of National Defense as the case may
be ...' These laws did not mention the permanency of their appointments during the duration of the training. It
merely states renewable every year subject to the sound discretion of the appointing authorities. Non-renewal
is merely an expiration of the term of the appointment. Even the petitioners (now oppositors), through counsel
admitted that the renewal of the appointment of a resident is discretionary. The renewal extended to some
trainees cannot also automatically acquire permanency since it mentioned TEMPORARY on the face of the
appointments.
The execution of the contract by the resident trainees necessarily follows the acceptance of the terms and
conditions of the contract. In the same manner that the acceptance of a temporary appointments is also
 tantamount to the submission to the legal consequences, that is that he can be terminated at anytime with or
without cause.
For clarification, it must be stated that petitioners are entitled to back salaries from the time they were illegally
terminated up to the time their termination was affirmed and concurred in by the appointing authority –
Secretary of Health.
xxx xxx xxx11
Upon receipt of said resolution, an appeal was filed by petitioners with CSC assailing the finding of the Board that
they are only entitled to back salaries from the time of their termination on 1 July 1989 to the time of the confirmation
of their termination by the Secretary of Health on 17 August 1989.
On 5 September 1990, the CSC affirmed the 25 October 1989 resolution of the Board, holding that since the nature
of their appointment was temporary, their services could be terminated with or without cause. The CSC declared that
the contract signed by petitioners with NCMH bound them to the condition stated therein that their training may be
terminated on the ground of poor performance, or in case of failure on their part to meet the standards of medical
ethics and behavior; and that as authorities in their own field of specialization, the evaluation conducted by the
Committee as to petitioners' performance during their training is presumed' regular.12
Under the Hospital Residency Law governing the residency program in government service, the appointment of
resident trainees is limited to a period of one (1) year, renewable every year not exceeding the duration of the
training program in a particular field of medicine, at the discretion of the Secretary of Health or National Defense, as
the case may be.13 The supervision and control of the government training program are under either the Secretary of
Health or Secretary of National Defense.14 Inasmuch as the NCMH is under the Department of Health, it is the
Secretary of Health who has the authority to appoint as well as remove the resident trainees. The power to remove is
deemed lodged in the same body or person in which the power to appoint is vested.15
Petitioners' appointment pursuant to the Hospital Residency Law was for a fixed period of one (1) year. Prior to the
expiration of the term, petitioners could be removed only for just cause. The fact that petitioners' appointments were
classified as "temporary" did not grant a blanket authority to the Secretary of Health to remove them at anytime
without cauge for the term fixed by law protects the right of the resident trainees from being removed from office
without cause. A "term" of office fixed by law allows the appointee to hold office, perform its functions, and enjoy its
privileges and emoluments until the expiration of said period.16 It is the definite period of time prescribed by law by
which an officer may hold office.17
The separate appointments extended to petitioners were for a definite period of one (1) year. Applying the provisions
of the Hospital Residency Law to the expiration of the term of one (1) year, petitioners' appointments could be
renewed only at the discretion of the Secretary of Health. The non-renewal of their appointments with or without
cause at the end of their term, is a valid mode of termination.
Records show that the termination of petitioners' services by NCMH on 1 July 1989 which was thereafter affirmed by
the Secretary of Health on 17 August 1989, was made before the expiration of their respective terms. Inasmuch as
their term had not expired at the time of their termination or dismissal, it is necessary that such removal be for cause.
Based on the result of evaluation conducted by the Residency Evaluation Committee on 16 June 1989, petitioners
obtained a poor rating in academic performance and a low ranking in said evaluation.18 The Board recommended
their termination for the following reasons:
1. DR. ELLEN AMBAS — First Year Resident Physician Poor academic performance in the past two quarter
evaluation. Board's decision was unanimous.
2. DR. JOANNE DE LEON — First year Resident Physician Low ranking in the overall performance
evaluation. Case observational report made by her continuing supervisor points to poor academic
performance as expected of her year level (Dr. Galvez), and her hysterical personality trait does not augur
well as a Psychiatrist in training. (Dr. Laraya).
3. DR. MARIE STELLA GUNABE — First Year Resident Phys. Low academic performance. Dr. Galvez
described her as a scatter brain in her work.
4. DR. RICARDO TOLENTINO — Second Year Resident Phys. Poor academic performance. This rating have
been (sic) noted as early as his first year of training but was given a 'chance' to change but to no avail.
5. DR. NERISSA BERNAL — Second Year Resident Physician Poor academic performance. She ranked
second to the last among her peers. Marked defect in attitudinal and interpersonal behavior was consistently
noted in her two major areas of rotation.
6. DR. RAUL MORENA — Second Year Resident Physician Poor academic performance. Violation of the
Code of Conduct of Resident Physicians. He received several warnings and advises from clinical supervisors
and chief of services about this problem.19
The training of petitioners under the Psychiatric Residency Program with NCMH involved a special field of medicine.
Because of the nature of their training in psychiatry, the NCMH had the right to set a standard to be met by the
resident trainees, to produce graduates who are qualified and skilled in the said field. To attain this purpose, the
NCMH recommended to the Secretary of Health the termination of resident trainees who failed to come up to the
standard set for such program.
However, the NCMH had no power to terminate the trainees. Only the Secretary of Health, as the appointing
authority, had the power to remove them from the service. Thus, the removal of petitioners by NCMH effective 1 July
1989 was not valid. But, the confirmation on 17 August 1989 made by the Secretary of Health of petitioners'
termination had the force and effect of a valid removal, effective on the date such confirmation was made.
The Secretary of Health did not commit grave abuse of discretion in terminating petitioners from the service because
the same was done with just cause, i.e., the petitioners' poor academic performance and low ranking in the
evaluation conducted by the Residency Evaluation Committee of NCMH. Under the circumstances, the valid removal
of petitioners took effect only 17 August 1989, and, therefore, they are entitled to backwages from 1 July 1989 to 17
August 1989.
There is no merit to petitioners' claim that they were deprived of due process because they were not given notice of
the motion for reconsideration filed by respondent Dr. Buenaseda, on behalf of NCMH. Although petitioners were not
duly furnished any notice of said motion, they were nonetheless able to file their arguments or opposition to the
allegations raised therein, before the said motion for reconsideration was resolved by the Board, reversing its original
decision.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.
G.R. Nos. 174730-37 February 9, 2011
ROSALIO S. GALEOS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 174845-52
PAULINO S. ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions at bar seek to reverse and set aside the Decision1 promulgated on August 18, 2005 by the
Sandiganbayan convicting petitioners Paulino S. Ong (Ong) of eight counts and Rosalio S. Galeos (Galeos) of four
counts of falsification of public documents under Article 171, paragraph 4 of the Revised Penal Code, as amended.
The facts are as follows:
Ong was appointed Officer-in-Charge (OIC)-Mayor of the Municipality of Naga, Cebu on April 16, 1986. He was
elected Mayor of the same municipality in 1988 and served as such until 1998.2
On June 1, 1994, Ong extended permanent appointments to Galeos and Federico T. Rivera (Rivera) for the positions
of Construction and Maintenance Man and Plumber I, respectively, in the Office of the Municipal Engineer.3 Prior to
their permanent appointment, Galeos and Rivera were casual employees of the municipal government.
In their individual Statement of Assets, Liabilities and Net Worth (SALN) for the year 1993, Galeos answered "No" to
the question: "To the best of your knowledge, are you related within the fourth degree of consanguinity or of affinity to
anyone working in the government?" while Rivera indicated "n/a" on the space for the list of the names of relatives
referred to in the said query.4 The boxes for "Yes" and "No" to the said query were left in blank by Galeos in his 1994
and 1995 SALN.5 Rivera in his 1995 SALN answered "No" to the question on relatives in government.6 In their 1996
SALN, both Galeos and Rivera also did not fill up the boxes indicating their answers to the same query.7Ong’s
signature appears in all the foregoing documents as the person who administered the oath when Galeos and Rivera
executed the foregoing documents.
In a letter-certification dated June 1, 1994 addressed to Ms. Benita O. Santos, Regional Director, Civil Service
Commission (CSC), Regional Office 7, Cebu City, it was attested that:
This is to certify that pursuant to the provisions of R.A. 7160, otherwise known as the Local Government Code of
1991, all restrictions/requirements relative to creation of positions, hiring and issuance of appointments, Section 325
on the limitations for personal services in the total/supplemental appropriation of a local government unit; salary
rates; abolition and creation of positions, etc.; Section 76, organizational structure and staffing pattern; Section 79 on
nepotism; Section 80, posting of vacancy and personnel selection board; Section 81 on compensation, etc. have
been duly complied with in the issuance of this appointment.
This is to certify further that the faithful observance of these restrictions/requirements was made in accordance with
the requirements of the Civil Service Commission before the appointment was submitted for review and
action.8(Emphasis supplied.)
The above certification was signed by Ong and HR Officer-Designate Editha C. Garcia.
On October 1, 1998, the members of the Sangguniang Bayan of Naga, Cebu filed a letter-complaint9 before the
Office of the Ombudsman (OMB)-Visayas against Ong (then incumbent Vice-Mayor of Naga), Galeos and Rivera for
dishonesty, nepotism, violation of the Code of Conduct and Ethical Standards for Public Officials and
Employeesand Anti-Graft and Corrupt Practices Act, and for the crime of falsification of public documents.
On August 11, 2000, Ombudsman Aniano Desierto approved the recommendation of OIC-Deputy Ombudsman for
the Visayas that criminal charges be filed against Ong, Galeos and Rivera for falsification of public documents under
Article 171 of the Revised Penal Code, as amended, in connection with the Certification dated June 1, 1994 issued
by Ong and the false statements in the 1993, 1995 and 1996 SALN of Rivera and the 1993, 1994, 1995 and 1996
SALN of Galeos.10
On August 16, 2000, the following Informations11 were filed against the petitioners:
Criminal Case No. 26181
That on or about the 14th day of February, 1994, in the Municipality of Naga, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos] accused, public
officers, being the former Municipal Mayor and Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and
confederating together and mutually helping with each other, with deliberate intent, with intent to falsify, did then and
there willfully, unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and Identification of Relatives In the
Government Service, as of December 31, 1993, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein that they are not related within the fourth
degree of consanguinity or affinity thereby making untruthful statements in a narration of facts, when in truth and in
fact, accused very well k[n]ew that they are related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong within the fourth degree of consanguinity, the mother of accused Rosalio S. Galeos [being]
the sister of the mother of accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26182
That on or about the 15th day of February 1994, in the Municipality of Naga, Province of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera] accused, public
officers, being the former Municipal Mayor and Plumber I of the Office of the Municipal Engineer, Municipality of
Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and Liabilities,
Disclosure of Business Interests and Financial Connections and Identification of Relatives In the Government
Service as of December 31, 1993, filed by accused Federico T. Rivera and subscribed and sworn to before accused
Paulino S. Ong, wherein accused Federico T. Rivera made it appear therein that he has no relatives within the fourth
degree of consanguinity or affinity working in the government, thereby making untruthful statements in a narration of
facts, when in truth and in fact, as accused very well knew that they are related with each other, since accused
Federico T. Rivera is related to accused Paulino S. Ong within the fourth degree of affinity, the mother of Federico T.
Rivera’s wife being the sister of the mother of Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26183
That on or about the 1st day of February, 1996, in the Municipality of Naga, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos] accused, public
officers, being the former Municipal Mayor and Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and
confederating together and mutually helping with each other, with deliberate intent, with intent to falsify, did then and
there willfully, unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and Identification of Relatives In the
Government Service, as of December 31, 1995, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein that they are not related within the fourth
degree of consanguinity or affinity thereby making false statements in a narration of facts, when in truth and in fact,
as accused very well k[n]ew that they are related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong within the fourth degree of consanguinity, the mother of accused Rosalio S. Galeos being
the sister of the mother of accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26184
That on or about the 1st day of February 1996, in the Municipality of Naga, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera] accused, public
officers, being the former Municipal Mayor and Plumber I of the Office of the Municipal Engineer, Municipality of
Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and Liabilities,
Disclosure of Business Interests and Financial Connections and Identification of Relatives In The Government
Service, [a]s of December 31, 1995, filed by accused Federico T. Rivera and subscribed and sworn to before
accused Paulino S. Ong, wherein accused Federico T. Rivera made it appear therein that he has no relatives within
the fourth degree of consanguinity or affinity working in the government, thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused very well knew that they are related with each other, since
accused Federico T. Rivera is related to accused Paulino S. Ong within the fourth degree of affinity, the mother of
Federico T. Rivera’s wife being the sister of the mother of Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26185
That on or about the 5th day of February 1997, in the Municipality of Naga, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera] accused, public
officers, being the former Municipal Mayor and Plumber I of the Office of the Municipal Engineer, Municipality of
Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and Liabilities,
Disclosure of Business Interests and Financial Connections and Identification of Relatives In The Government
Service, [a]s of December 31, 1996, filed by accused Federico T. Rivera and subscribed and sworn to before
accused Paulino S. Ong, wherein accused Federico T. Rivera made it appear therein that he has no relatives within
the fourth degree of consanguinity or affinity working in the government, thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused very well knew that they are related with each other, since
accused Federico T. Rivera is related to accused Paulino S. Ong within the fourth degree of affinity, the mother of
Federico T. Rivera’s wife being the sister of the mother of Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26186
That on or about the 3rd day of March, 1995, in the Municipality of Naga, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos] accused, public
officers, being the former Municipal Mayor and Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and
confederating together and mutually helping with each other, with deliberate intent, with intent to falsify, did then and
there willfully, unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and Identification of Relatives In the
Government Services, as of December 31, 1994, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein that they are not related within the fourth
degree of consanguinity or affinity thereby making untruthful statements in a narration of facts, when in truth and in
fact, as accused very well k[n]ew that they are related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong, within the fourth degree of consanguinity, the mother of accused Rosalio S. Galeos being
the sister of the mother of accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26187
That on or about the 11th day of March, 1997, in the Municipality of Naga, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos] accused, public
officers, being the former Municipal Mayor and Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, conniving and
confederating, together and mutually helping with each other, with deliberate intent, with intent to falsify, did then and
there willfully, unlawfully and feloniously falsify a public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and Identification of Relatives In the
Government Service, as of December 31, 1996, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein that they are not related within the fourth
degree of consanguinity or affinity thereby making untruthful statements in a narration of facts, when in truth and in
fact, as accused very well k[n]ew that they are related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong within the fourth degree of consanguinity, the mother of accused Rosalio S. Galeos being
the sister of the mother of accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26188
That on or about the 1st day of June, 1994, at the Municipality of Naga, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused, a public officer, being the former Mayor of the
Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, with deliberate intent,
with intent to falsify, did then and there willfully, unlawfully and feloniously falsify a public document, consisting of
a Certification in the form of a letter addressed to Mrs. Benita O. Santos, then Regional Director of the Civil Service
Commission (CSC)-Region VII, Cebu City dated June 1, 1994, a requirement in the approval of an appointment,
certifying therein that there was a faithful compliance of the requirement/restriction provided under the Civil Service
Laws and Rules in the appointment of Rosalio S. Galeos, as Construction and Maintenance Man of the Office of the
Municipal Engineer, Naga, Cebu, thereby making untruthful statements in a narration of facts, when in truth and in
fact as accused very well knew that the appointment of Rosalio S. Galeos was nepotic being made in violation of the
Civil Service Rules and Laws on Nepotism, as Rosalio S. Galeos is related to accused within the fourth degree of
consanguinity, since the mother of Rosalio S. Galeos is the sister of the mother of accused, which Certification
caused the approval of the appointment of Rosalio S. Galeos, to the detriment of public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26189
That on or about the 1st day of June, 1994, at the Municipality of Naga, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused, a public officer, being the former Mayor of the
Municipality of Naga, Cebu, in such capacity and committing the offense in relation to office, with deliberate intent,
with intent to falsify, did then and there willfully, unlawfully and feloniously falsify a public document, consisting of
a Certification in the form of a letter addressed to Mrs. Benita O. Santos, then Regional Director of the Civil Service
Commission (CSC), Region VII, Cebu City, dated June 1, 1994, a requirement in the approval of an appointment,
certifying therein that there was a faithful compliance of the requirement/restriction provided under the Civil Service
Laws and Rules in the appointment of Federico T. Rivera, a Plumber I of the Office of the Municipal Engineer, Naga,
Cebu, thereby making untruthful statements in a narration of facts, when in truth and in fact as accused very well
knew that the appointment of Federico T. Rivera was nepotic being made in violation of the Civil Service Rules and
Laws on Nepotism, as Federico T. Rivera is related to accused within the fourth degree of affinity, since the mother
of Federico T. Rivera’s wife is the sister of the mother of accused, which certification caused the approval of the
appointment of Federico T. Rivera, to the detriment of public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Under the Joint Stipulation of Facts submitted to the court a quo, the accused made the following admissions: (1)
Ong was the Municipal Mayor of Cebu at all times relevant to these cases; (2) Ong is related to Galeos, within the
fourth degree of consanguinity as his mother is the sister of Galeos’ mother, and to Rivera within the fourth degree of
affinity as his mother is the sister of the mother of Rivera’s wife; and (3) Galeos and Rivera were employed as
Construction and Maintenance Man and Plumber I, respectively, in the Municipal Government of Naga, Cebu at all
times relevant to these cases. Ong likewise admitted the genuineness and due execution of the documentary
exhibits presented by the prosecutor (copies of SALNs and Certification dated June 1, 1994) except for Exhibit "H"
(Certification dated June 1, 1994 offered by the prosecution as "allegedly supporting the appointment of Rosalio S.
Galeos"12).13
As lone witness for the prosecution, Esperidion R. Canoneo testified that he has been a resident of Pangdan, Naga,
Cebu since 1930 and claimed to be friends with Ong, Galeos and Rivera. He knows the mother of Galeos, Pining
Suarez or Peñaranda Suarez. But when the prosecutor mentioned "Bining Suarez," Canoneo stated that Bining
Suarez is the mother of Galeos and that Bining Suarez is the same person as "Bernardita Suarez." Ong is related to
Galeos because Ong’s mother, Conchita Suarez, and Galeos’ mother, Bernardita Suarez, are sisters. As to Rivera,
his wife Kensiana,14 is the daughter of Mercedes Suarez who is also a sister of Conchita Suarez. He knew the
Suarez sisters because they were the neighbors of his grandmother whom he frequently visited when he was still
studying.15
Both Galeos and Rivera testified that they only provided the entries in their SALN but did not personally fill up the
forms as these were already filled up by "people in the municipal hall" when they signed them.
Galeos, when shown his 1993 SALN,16 confirmed his signature thereon. When he was asked if he understood the
question "To the best of your knowledge, are you related within the fourth degree of consanguinity or affinity to
anyone working in the government?" he answered in the negative. He claimed that the "X" mark corresponding to the
answer "No" to said question, as well as the other entries in his SALN, were already filled up when he signed it.
When shown his SALN for the years 1994, 1995 and 1996, Galeos reiterated that they were already filled up and he
was only made to sign them by an employee of the municipal hall whom he only remembers by face. He also
admitted that he carefully read the documents and all the entries therein were explained to him before he affixed his
signature on the document. However, when asked whether he understands the term "fourth degree of consanguinity
or affinity" stated in the SALNs, he answered in the negative.17
Rivera testified that he was not aware that his wife was a close relative of the Municipal Mayor because when he
asked her, the latter told him that Ong was a distant relative of hers. Rivera added that it was not Ong who first
appointed him as a casual employee but Ong’s predecessor, Mayor Vicente Mendiola.18
On the part of Ong, he testified that at the time he was serving as Municipal Mayor of Naga, he did not know that he
and Galeos are relatives, as in fact there are several persons with the surname "Galeos" in the municipality. He
signed Galeos’ 1993 SALN when it was presented to him by Galeos at his office. There were many of them who
brought such documents and he would administer their oaths on what were written on their SALN, among them were
Galeos and Rivera. He came to know of the defect in the employment of Galeos when the case was filed by his
"political enemy" in the Ombudsman just after he was elected Vice-Mayor in 1998. As to Rivera, Ong claimed that he
knows him as a casual employee of the previous administration. As successor of the former mayor, he had to re-
appoint these casual employees and he delegated this matter to his subordinates. He maintained that his family was
not very close to their other relatives because when he was not yet Mayor, he was doing business in Cebu and
Manila. When queried by the court if he had known his relatives while he was campaigning considering that in the
provinces even relatives within the 6th and 7th degree are still regarded as close relatives especially among
politicians, Ong insisted that his style of campaigning was based only on his performance of duties and that he did
not go from house to house. Ong admitted that he had been a resident of Naga, Cebu since birth. He could no longer
recall those SALN of most of the employees whose oaths he had administered. He admitted that he was the one who
appointed Galeos and Rivera to their permanent positions and signed their official appointment (Civil Service Form
No. 33) but he was not aware at that time that he was related to them. It was only after the filing of the case that he
came to know the wife of Rivera. As to the qualifications of these appointees, he no longer inquired about it and their
appointments were no longer submitted to the Selection Board. When the appointment forms for Galeos and Rivera
were brought to his office, the accompanying documents were attached thereto. Ong, however, admitted that before
the permanent appointment is approved by the CSC, he issues a certification to the effect that all requirements of law
and the CSC have been complied with.19
On August 18, 2005, the Sandiganbayan promulgated the assailed Decision convicting Ong, Galeos and Rivera, as
follows:
WHEREFORE, judgment is hereby rendered on the following:
In Criminal Case No. 26181, judgment is hereby rendered finding accused Paulino S. Ong and Rosalio S. Galeos
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26182, judgment is hereby rendered finding accused Paulino S. Ong and Federico T. Rivera
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26183, judgment is hereby rendered finding accused Paulino S. Ong and Rosalio S. Galeos
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).1auuphil
In Criminal Case No. 26184, judgment is hereby rendered finding accused Paulino S. Ong and Federico T. Rivera
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26185, judgment is hereby rendered finding accused Paulino S. Ong and Federico T. Rivera
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26186, judgment is hereby rendered finding accused Paulino S. Ong and Rosalio S. Galeos
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26187, judgment is hereby rendered finding accused Paulino S. Ong and Rosalio S. Galeos
GUILTY beyond reasonable doubt of the crime of Falsification of Public Document as defined in and penalized by
Article 171 of the Revised Penal Code and, there being no modifying circumstances, are hereby sentenced to each
suffer an indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY OF
Prision Correccional medium as the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26188, judgment is hereby rendered finding accused Paulino S. Ong NOT GUILTY for Violation
of Article 171 of the Revised Penal Code for failure of the Prosecution to prove his guilt beyond reasonable doubt;
and
In Criminal Case No. 26189, judgment is hereby rendered finding accused Paulino S. Ong GUILTY beyond
reasonable doubt for Falsification of Public Document as defined in and penalized by Article 171 of the Revised
Penal Code and, there being no modifying circumstances, is hereby sentenced to suffer an indeterminate penalty of
imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional medium as the
minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor medium as the maximum penalty and to
pay a FINE of FIVE THOUSAND PESOS (P5,000.00).
SO ORDERED.20
In its Resolution21 dated August 28, 2006, the Sandiganbayan denied the motions for reconsideration of Ong and
Galeos. However, in view of the death of Rivera on August 22, 2003 before the promulgation of the decision, the
cases (Criminal Case Nos. 26182, 26184 and 26185) against him were dismissed.
In G.R. Nos. 174730-37, Galeos contends that the Sandiganbayan erred when:
1) . . . IT HELD THAT THE SUBJECT DOCUMENTARY EVIDENCE CONTAINED UNTRUTHFUL
STATEMENTS IN A NARRATION OF FACTS.
2) . . . IT DID NOT CONSIDER PETITIONER’S VALID DEFENSE OF GOOD FAITH AND LACK OF INTENT
TO COMMIT THE CRIMES IMPUTED.
3) . . . IT GAVE FULL CREDENCE TO THE TESTIMONY OF THE SOLE WITNESS FOR THE
PROSECUTION.22
In support of his assigned errors, Galeos argues that he did not make untruthful or false statements in his SALN
since a "statement" requires a positive averment and thus silence or non-disclosure cannot be considered one. And
even if they are considered statements, Galeos contends that they were not made in a "narration of facts" and the
least they could be considered are "conclusions of law." He also argues that the prosecution failed to adduce any
evidence to support the finding that he was aware of their relationship at the time of the execution of the SALN. With
the presence of good faith, Galeos avers that the fourth element of the crime – the perversion of truth in the narration
of facts was made with the wrongful intent of injuring a third person – is missing. He also faults the Sandiganbayan
for its heavy reliance on the uncorroborated testimony of the prosecution’s sole witness despite the fact that there
are aspects in his testimony that do not inspire belief.
On the other hand, in G.R. Nos. 174845-52, Ong argues that the Sandiganbayan erred when:
(a)
. . . IT HELD THAT THE SUBJECT DOCUMENTARY EVIDENCE CONTAINED UNTRUTHFUL
STATEMENTS IN A NARRATION OF FACTS.
(b)
IN CRIMINAL CASES NOS. 26181-26187, [IT HELD] THAT A PERSON MERELY ADMINISTERING THE
OATH IN A DOCUMENT IS GUILTY OF THE CRIME OF FALSIFICATION BY MAKING UNTRUTHFUL
STATEMENTS IN A NARRATION OF FACTS.
(c)
. . . IN CRIMINAL CASE NO. 26189, … IT INFER[R]ED, DESPITE THE COMPLETE ABSENCE OF ANY
RELEVANT AND MATERIAL EVIDENCE, THAT RESPONDENT’S EXHIBIT "I" (OR PETITIONER’S EXHIBIT
"8") REFERS TO OR SUPPORTS THE APPOINTMENT OF FEDERICO T. RIVERA.23
Ong similarly argues that the subject SALN do not contain any untruthful statements containing a narration of facts
and that there was no wrongful intent of injuring a third person at the time of the execution of the documents. He
contends that he cannot be held liable for falsification for merely administering the oath in a document since it is not
among the legal obligations of an officer administering the oath to certify the truthfulness and/or veracity of the
contents of the document. Neither can he be made liable for falsification regarding the letter-certification he issued
since there was no evidence adduced that it was made to support Rivera’s appointment.
In the Joint Memorandum filed by the Ombudsman through the Office of the Special Prosecutor of the
Sandiganbayan, it was pointed out that Galeos categorically admitted during his testimony that before affixing his
signature on the subject SALN, he carefully read its contents and the entries therein have been explained to him.
Moreover, the admission made by Ong during the pre-trial under the joint stipulation of facts indicated no qualification
at all that he became aware of his relationship with Galeos and Rivera only after the execution of the subject
documents. The defense of lack of knowledge of a particular fact in issue, being a state of mind and therefore self-
serving, it can be legally assumed that the admission of that particular fact without qualification reckons from the time
the imputed act, to which the particular fact relates, was committed. As to mistaken reliance on the testimony of
prosecution witness, the analysis and findings in the assailed decision do not show that such testimony was even
taken into consideration in arriving at the conviction of petitioners.24
With respect to Ong’s liability as conspirator in the execution of the SALN containing untruthful statements, the
Special Prosecutor argues that as a general rule, it is not the duty of the administering officer to ascertain the truth of
the statements found in a document. The reason for this is that the administering officer has no way of knowing if the
facts stated therein are indeed truthful. However, when the facts laid out in the document directly involves the
administering officer, then he has an opportunity to know of their truth or falsity. When an administering officer
nevertheless administers the oath despite the false contents of the document, which are known to him to be false, he
is liable, not because he violated his duty as an administering officer, but because he participated in the falsification
of a document.25
After a thorough review, we find the petitions unmeritorious.
Petitioners were charged with falsification of public document under Article 171, paragraph 4 of the Revised Penal
Code, as amended, which states:
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prision mayor
and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so
participate;
3. Attributing to persons who have participated in an act or proceeding statements other than those in fact
made by them;
4. Making untruthful statements in a narration of facts;
x x x x (Emphasis and italics supplied.)
The elements of falsification in the above provision are as follows:
(a) the offender makes in a public document untruthful statements in a narration of facts;
(b) he has a legal obligation to disclose the truth of the facts narrated by him; and
(c) the facts narrated by him are absolutely false.26
In addition to the afore-cited elements, it must also be proven that the public officer or employee had taken
advantage of his official position in making the falsification. In falsification of public document, the offender is
considered to have taken advantage of his official position when (1) he has the duty to make or prepare or otherwise
to intervene in the preparation of a document; or (2) he has the official custody of the document which he
falsifies.27Likewise, in falsification of public or official documents, it is not necessary that there be present the idea of
gain or the intent to injure a third person because in the falsification of a public document, what is punished is the
violation of the public faith and the destruction of the truth as therein solemnly proclaimed.28
Falsification of Public Document
by making untruthful statements
concerning relatives in the
government service
All the elements of falsification of public documents by making untruthful statements have been established by the
prosecution.
Petitioners argue that the statements "they are not related within the fourth civil degree of consanguinity or affinity"
and "that Section 79 of the Local Government Code has been complied with in the issuance of the appointments" are
not a narration of facts but a conclusion of law, as both require the application of the rules on relationship under the
law of succession. Thus, they cite People v. Tugbang29 where it was held that "a statement expressing an erroneous
conclusion of law cannot be considered a falsification." Likewise, in People v. Yanza,30 it was held that when
defendant certified that she was eligible for the position, she practically wrote a conclusion of law, which turned out to
be incorrect or erroneous; hence, she may not be declared guilty of falsification because the law violated pertains to
narration of facts.
We disagree.
A conclusion of law is a determination by a judge or ruling authority regarding the law that applies in a particular
case. It is opposed to a finding of fact, which interprets the factual circumstances to which the law is to be applied.31A
narration of facts is merely an account or description of the particulars of an event or occurrence.32 We have held
that a certification by accused officials in the Statement of Time Elapsed and Work Accomplished qualifies as a
narration of facts as contemplated under Article 171 (4) of the Revised Penal Code, as it consisted not only of figures
and numbers but also words were used therein giving an account of the status of the flood control project.33
In this case, the required disclosure or identification of relatives "within the fourth civil degree of consanguinity or
affinity" in the SALN involves merely a description of such relationship; it does not call for an application of law in a
particular set of facts. On the other hand, Articles 963 to 967 of the Civil Code simply explain the concept of proximity
of relationship and what constitute direct and collateral lines in relation to the rules on succession. The question of
whether or not persons are related to each other by consanguinity or affinity within the fourth degree is one of fact.
Contrary to petitioners’ assertion, statements concerning relationship may be proved as to its truth or falsity, and thus
do not amount to expression of opinion. When a government employee is required to disclose his relatives in the
government service, such information elicited therefore qualifies as a narration of facts contemplated under Article
171 (4) of the Revised Penal Code, as amended. Further, it bears to stress that the untruthful statements on
relationship have no relevance to the employee’s eligibility for the position but pertains rather to prohibition or
restriction imposed by law on the appointing power.
Since petitioner Galeos answered "No" to the question in his 1993 SALN if he has relatives in the government
service within the fourth degree of consanguinity, he made an untruthful statement therein as in fact he was related
to Ong, who was then the municipal mayor, within the fourth degree of consanguinity, he and Ong being first cousins
(their mothers are sisters). As to his 1994, 1995 and 1996 SALN, Galeos left in blank the boxes for the answer to the
similar query. In Dela Cruz v. Mudlong,34 it was held that one is guilty of falsification in the accomplishment of his
information and personal data sheet if he withholds material facts which would have affected the approval of his
appointment and/or promotion to a government position. By withholding information on his relative/s in the
government service as required in the SALN, Galeos was guilty of falsification considering that the disclosure of such
relationship with then Municipal Mayor Ong would have resulted in the disapproval of his permanent appointment
pursuant to Article 168 (j) (Appointments), Rule XXII of the Rules and Regulations Implementing the Local
Government Code of 1991 (R.A. No. 7160), which provides:
No person shall be appointed in the local government career service if he is related within the fourth civil degree of
consanguinity or affinity to the appointing power or recommending authority.
Section 7 (e), Rule V of the Implementing Rules of Book V, Executive Order No. 292 otherwise known as
the Administrative Code of 1987, provides that the CSC shall disapprove the appointment of a person who "has been
issued such appointment in violation of existing Civil Service Law, rules and regulations." Among the prohibited
appointments enumerated in CSC Memorandum Circular No. 38, series of 1993 are appointments in the LGUs of
persons who are related to the appointing or recommending authority within the fourth civil degree of consanguinity.35
The Omnibus Rules on Appointments and Other Personnel Actions (CSC Memorandum Circular No. 40, series of
1998 dated December 14, 1998) contain a similar prohibition under Rule XIII, Section 9:
SEC. 9. No appointment in the national, provincial, city or municipal governments or any branch or instrumentality
thereof, including government owned or controlled corporations with original charters shall be made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office or of the person exercising
immediate supervision over the appointee.
Unless otherwise provided by law, the word "relative" and the members of the family referred to are those related
within the third degree either of consanguinity or of affinity.
In the local government career service, the prohibition extends to the relatives of the appointing or recommending
authority, within the fourth civil degree of consanguinity or affinity.
xxxx
The nepotism rule covers all kinds of appointments whether original, promotional, transfer and reemployment
regardless of status including casuals and contractuals except consultants. (Emphasis supplied.)
The second element is likewise present. "Legal obligation" means that there is a law requiring the disclosure of the
truth of the facts narrated.36 Permanent employees employed by local government units are required to file the
following: (a) sworn statement of assets, liabilities and net worth (SALN); (b) lists of relatives within the fourth civil
degree of consanguinity or affinity in government service; (c) financial and business interests; and (d) personal data
sheets as required by law.37 A similar requirement is imposed by Section 8 (B) of Republic Act No. 6713 otherwise
known as the Code of Conduct and Ethical Standards for Public Officials and Employees, thus:
(B) Identification and disclosure of relatives38. – It shall be the duty of every public official or employee to identify and
disclose to the best of his knowledge and information, his relatives in the Government in the form, manner and
frequency prescribed by the Civil Service Commission.
Section 11 of the same law penalizes the violation of the above provision, either with imprisonment or fine, and, in
the discretion of the court of competent jurisdiction, disqualification to hold public office. Such violation if proven in a
proper administrative proceeding shall also be sufficient cause for removal or dismissal of a public official or
employee, even if no criminal prosecution is instituted against him.
The evidence on record clearly showed that Galeos’ negative answer reflected in his SALN is absolutely false.
During the trial, both Ong and Galeos admitted the fact that they are first cousins but denied having knowledge of
such relationship at the time the subject documents were executed. The Sandiganbayan correctly rejected their
defense of being unaware that they are related within the fourth degree of consanguinity. Given the Filipino cultural
trait of valuing strong kinship and extended family ties, it was unlikely for Galeos who had been working for several
years in the municipal government, not to have known of his close blood relation to Ong who was a prominent public
figure having ran and won in the local elections four times (three terms as Mayor and as Vice-Mayor in the 1998
elections), after serving as OIC Mayor of the same municipality in 1986 until 1988.
The same thing can be said of Ong, whose unbelievable claim that he had no knowledge that a first cousin (Galeos)
was working in the municipal government and appointed by him to a permanent position during his incumbency, was
correctly disregarded by the Sandiganbayan. It was simply unthinkable that as a resident of Naga, Cebu since birth
and a politician at that, he was all the time unaware that he himself appointed to permanent positions the son of his
mother’s sister (Galeos) and the husband of his first cousin (Rivera). Indeed, the reality of local politics and Filipino
culture renders his defense of good faith (lack of knowledge of their relationship) unavailing. Despite his knowledge
of the falsity of the statement in the subject SALN, Ong still administered the oath to Galeos and Rivera who made
the false statement under oath. The Sandiganbayan thus did not err in finding that Ong connived with Galeos and
Rivera in making it appear in their SALN that they have no relative within the fourth degree of consanguinity/affinity in
the government service.
Conspiracy need not be shown by direct proof of an agreement of the parties to commit the crime,39 as it can be
inferred from the acts of the accused which clearly manifest a concurrence of wills, a common intent or design to
commit a crime.40 In this case, Ong administered the oaths to Galeos and Rivera in the subject SALN not just once,
but three times, a clear manifestation that he concurred with the making of the untruthful statement therein
concerning relatives in the government service.
Falsification by making
untruthful statements
in the Certification re:
compliance with the
prohibition on nepotism
As chief executive and the proper appointing authority, Ong is deemed to have issued the certification
recommending to the CSC approval of Galeos’ appointment although he admitted only the authenticity and due
execution of Exhibit "I". Since Ong was duty bound to observe the prohibition on nepotistic appointments, his
certification stating compliance with Section 7941 of R.A. No. 7160 constitutes a solemn affirmation of the fact that the
appointee is not related to him within the fourth civil degree of consanguinity or affinity. Having executed the
certification despite his knowledge that he and Rivera were related to each other within the fourth degree of affinity,
as in fact Rivera was his cousin-in-law because the mother of Rivera’s wife is the sister of Ong’s mother, Ong was
guilty of falsification of public document by making untruthful statement in a narration of facts. He also took
advantage of his official position as the appointing authority who, under the Civil Service rules, is required to issue
such certification.
The importance of the certification submitted to the CSC by the proper appointing authority in the local government
unit, regarding compliance with the prohibition against nepotism under R.A. No. 7160 cannot be overemphasized.
Under Section 67, Book V, Chapter 10 of the Administrative Code of 1987, a head of office or appointing official who
issues an appointment or employs any person in violation of Civil Service Law and Rules or who commits fraud,
deceit or intentional misrepresentation of material facts concerning other civil service matters, or anyone who
violates, refuses or neglects to comply with any of such provisions or rules, may be held criminally liable. In Civil
Service Commission v. Dacoycoy,42 we held that mere issuance of appointment in favor of a relative within the third
degree of consanguinity or affinity is sufficient to constitute a violation of the law. Although herein petitioners were
prosecuted for the criminal offense of falsification of public document, it becomes obvious that the requirement of
disclosure of relationship to the appointing power in the local government units simply aims to ensure strict
enforcement of the prohibition against nepotism.1avvphil
Relevant then is our pronouncement in Dacoycoy:
Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we
stressed that "[T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the
prohibition was intended to be a comprehensive one." "The Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive." If not within the exceptions, it is a form of corruption
that must be nipped in the bud or abated whenever or wherever it raises its ugly head. As we said in an earlier case
"what we need now is not only to punish the wrongdoers or reward the ‘outstanding’ civil servants, but also to plug
the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in
order to abate any occasion for graft or circumvention of the law."43 (Emphasis supplied.)
The prosecution having established with moral certainty the guilt of petitioners for falsification of public documents
under Article 171 (4) of the Revised Penal Code, as amended, we find no legal ground to reverse petitioners’
conviction.
WHEREFORE, the petitions are DENIED. The Decision dated August 18, 2005 of the Sandiganbayan in Criminal
Case Nos. 26181-26187 and 26189 is AFFIRMED.
With costs against the petitioners.
SO ORDERED.
G.R. No. 166510 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
BENJAMIN "KOKOY" T. ROMUALDEZ and THE SANDIGANBAYAN (FIRST DIVISION), Respondents.
DECISION
BRION, J.:
We resolve the Petition for Certiorari filed under Rule 65 of the Revised Rules of Court by the People of the
Philippines (People), assailing the Resolutions dated 22 June 20041 and 23 November 20042 of the Sandiganbayan
in CRIMINAL CASE NO. 26916 entitled People of the Philippines versus Benjamin "Kokoy" Romualdez, on the
ground of grave abuse of discretion and/or lack or excess of jurisdiction. The first assailed Resolution granted the
motion to quash filed by private respondent Benjamin "Kokoy" Romualdez (Romualdez); the second assailed
Resolution, on the other hand, denied the People’s motion for reconsideration of the first assailed Resolution.
ANTECEDENTS
The Office of the Ombudsman (Ombudsman) charged Romualdez before the Sandiganbayan with violation of
Section 3 (e) of Republic Act No. 3019 (RA 3019), as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act. The Information3 reads:
That on or about and during the period from 1976 to February 1986 or sometime prior or subsequent thereto, in the
City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Benjamin "Kokoy"
Romualdez, a public officer being then the Provincial Governor of the Province of Leyte, while in the performance of
his official function, committing the offense in relation to his Office, did then and there willfully, unlawfully and
criminally with evident bad faith, cause undue injury to the Government in the following manner: accused public
officer being then the elected Provincial Governor of Leyte and without abandoning said position, and using his
influence with his brother-in-law, then President Ferdinand E. Marcos, had himself appointed and/or assigned as
Ambassador to foreign countries, particularly the People’s Republic of China (Peking), Kingdom of Saudi Arabia
(Jeddah), and United States of America (Washington D.C.), knowing fully well that such appointment and/or
assignment is in violation of the existing laws as the Office of the Ambassador or Chief of Mission is incompatible
with his position as Governor of the Province of Leyte, thereby enabling himself to collect dual compensation from
both the Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred
Seventy-six Thousand Nine Hundred Eleven Dollars and 56/100 (US $276,911.56), US Currency or its equivalent
amount of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and
Two Hundred Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine
Currencies, respectively, to the damage and prejudice of the Government in the aforementioned amount of
P5,806,709.50.
CONTRARY TO LAW.
Romualdez moved to quash the information4 on two grounds, namely: (1) that the facts alleged in the information do
not constitute the offense with which the accused was charged; and (2) that the criminal action or liability has been
extinguished by prescription. He argued that the acts imputed against him do not constitute an offense because: (a)
the cited provision of the law applies only to public officers charged with the grant of licenses, permits, or other
concessions, and the act charged – receiving dual compensation – is absolutely irrelevant and unrelated to the act of
granting licenses, permits, or other concessions; and (b) there can be no damage and prejudice to the Government
considering that he actually rendered services for the dual positions of Provincial Governor of Leyte and Ambassador
to foreign countries.
To support his prescription argument, Romualdez posited that the 15-year prescription under Section 11 of RA 3019
had lapsed since the preliminary investigation of the case for an offense committed on or about and during the period
from 1976 to February 1986 commenced only in May 2001 after a Division of the Sandiganbayan referred the matter
to the Office of the Ombudsman. He argued that there was no interruption of the prescriptive period for the offense
because the proceedings undertaken under the 1987 complaint filed with the Presidential Commission on Good
Government (PCGG) were null and void pursuant to the Supreme Court’s ruling in Cojuangco Jr. v. PCGG5and Cruz
Jr [sic].6 He likewise argued that the Revised Penal Code provision7 that prescription does not run when the offender
is absent from the Philippines should not apply to his case, as he was charged with an offense not covered by the
Revised Penal Code; the law on the prescription of offenses punished under special laws (Republic Act No. 3326)
does not contain any rule similar to that found in the Revised Penal Code.
The People opposed the motion to quash on the argument that Romualdez is misleading the court in asserting that
Section 3 (e) of RA 3019 does not apply to him when Section 2 (b) of the law states that corrupt practices may be
committed by public officers who include "elective and appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the
government."8 On the issue of prescription, the People argued that Section 15, Article XI of the Constitution provides
that the right of the State to recover properties unlawfully acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by prescription, laches or estoppel, and that prescription is a
matter of technicality to which no one has a vested right. Romualdez filed a Reply to this Opposition.9
The Sandiganbayan granted Romualdez’ motion to quash in the first Resolution assailed in this petition. The
Sandiganbayan stated:
We find that the allegation of damage and prejudice to the Government in the amount of P5,806,709.50 representing
the accused’s compensation is without basis, absent a showing that the accused did not actually render services for
his two concurrent positions as Provincial Governor of the Province of Leyte and as Ambassador to the People’s
Republic of China, Kingdom of Saudi Arabia, and United States of America. The accused alleges in the subject
Motion that he actually rendered services to the government. To receive compensation for actual services rendered
would not come within the ambit of improper or illegal use of funds or properties of the government; nor would it
constitute unjust enrichment tantamount to the damage and prejudice of the government.
Jurisprudence has established what "evident bad faith" and "gross negligence" entail, thus:
In order to be held guilty of violating Section 3 (e), R. A. No. 3019, the act of the accused that caused undue injury
must have been done with evident bad faith or with gross inexcusable negligence. But bad faith per se is not enough
for one to be held liable under the law, the "bad faith" must be "evident".
xxx xxx xxx
xxx. "Gross negligence" is characterized by the want of even slight care, acting or omitting to act in a willful or
omitting to act in a willful or intentional manner displaying a conscious indifference to consequences as far as other
persons may be affected. (Emphasis supplied)
The accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but
such inefficiency is not enough to hold him criminally liable under the Information charged against him, given the
elements of the crime and the standards set by the Supreme Court quoted above. At most, any liability arising from
the holding of both positions by the accused may be administrative in nature.
xxx
However, as discussed above, the Information does not sufficiently aver how the act of receiving dual compensation
resulted to undue injury to the government so as to make the accused liable for violation of Section 3 (e) of R.A. No.
3019.10
The Sandiganbayan found no merit in Romualdez’ prescription argument.
The People moved to reconsider this Resolution, citing "reversible errors" that the Sandiganbayan committed in its
ruling.11 Romualdez opposed the People’s motion, but also moved for a partial reconsideration of the Resolution’s
ruling on prescription.12 The People opposed Romualdez’ motion for partial reconsideration.13
Thereafter, the Sandiganbayan denied via the second assailed Resolution14 the People’s motion for reconsideration
under the following terms –
The Court held in its Resolution of June 22, 2004, and so maintains and sustains, that assuming the averments of
the foregoing information are hypothetically admitted by the accused, it would not constitute the offense of violation
of Section 3 (e) of RA 3019 as the elements of (a) causing undue injury to any party, including the government, by
giving unwarranted benefits, advantage or preference to such parties, and (b) that the public officer acted with
manifest partiality, evident bad faith or gross inexcusable negligence, are wanting.
As it is, a perusal of the information shows that pertinently, accused is being charged for: (a) having himself
appointed as ambassador to various posts while serving as governor of the Province of Leyte and (b) for collecting
dual compensation for said positions. As to the first, the Court finds that accused cannot be held criminally liable,
whether or not he had himself appointed to the position of the ambassador while concurrently holding the position of
provincial governor, because the act of appointment is something that can only be imputed to the appointing
authority.
Even assuming that the appointee influenced the appointing authority, the appointee only makes a passive
participation by entering into the appointment, unless it is alleged that he acted in conspiracy with his appointing
authority, which, however, is not so claimed by the prosecution in the instant case. Thus, even if the accused’s
appointment was contrary to law or the constitution, it is the appointing authority that should be responsible therefor
because it is the latter who is the doer of the alleged wrongful act. In fact, under the rules on payment of
compensation, the appointing authority responsible for such unlawful employment shall be personally liable for the
pay that would have accrued had the appointment been lawful. As it is, the appointing authority herein, then
President Ferdinand E. Marcos has been laid to rest, so it would be incongruous and illogical to hold his appointee,
herein accused, liable for the appointment.
Further, the allegation in the information that the accused collected compensation in the amounts of Five Million
Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred Ninety-
three Thousand Three Hundred Forty Eight Pesos and 86/100 (P293,348.86) cannot sustain the theory of the
prosecution that the accused caused damage and prejudice to the government, in the absence of any contention that
receipt of such was tantamount to giving unwarranted benefits, advantage or preference to any party and to acting
with manifest partiality, evident bad faith or gross inexcusable negligence. Besides receiving compensation is an
incident of actual services rendered, hence it cannot be construed as injury or damage to the government.
It likewise found no merit in Romualdez’ motion for partial reconsideration.
THE PETITION AND THE PARTIES’ SUBMISSIONS
The People filed the present petition on the argument that the Sandiganbayan committed grave abuse of discretion
in quashing the Information based on the reasons it stated in the assailed Resolutions, considering that:
a. Romualdez cannot be legally appointed as an ambassador of the Republic of the Philippines during his
incumbency as Governor of the Province of Leyte; thus, to draw salaries for the two positions is to cause
undue injury to the government under Section 3 (e) of RA 3019;
 b. Romualdez cannot receive compensation for his illegal appointment as Ambassador of the Republic of the
Philippines and for his services in this capacity; thus, to so pay him is to make illegal payment of public funds
and cause undue injury to the government under Section 3 (e) of RA 3019; and
c. The Sandiganbayan went beyond the ultimate facts required in charging a violation of Section 3 (e) of RA
3019 and delved into matters yet to be proven during trial.
Required to comment on the petition, Romualdez filed a Motion to Dismiss with Comment Ad Cautelam.15 He argued
that the filing of the present Rule 65 petition is improper, as a petition filed under Rule 45, instead of Rule 65, of the
Revised Rules of Court is the proper remedy, considering that the assailed Resolutions are appealable. He cited in
support of this contention the ruling that an order granting a motion to quash, unlike one of denial, is a final order; it is
not merely interlocutory and is therefore immediately appealable.16 He further argued that the present petition was
belatedly filed, as the People filed it beyond the 15-day reglementary filing period for a Rule 45 petition. On the
substantive issues raised in the petition, he argued that the factual averments in the Information do not constitute the
offense charged and that the criminal action or liability has been extinguished by prescription.
The People, on the other hand, asserted in reply17 that while a petition for certiorari under Rule 65 may be availed of
only when there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, or that
certiorari is not a substitute for the lost remedy of an appeal, the rule may be relaxed when the issue raised is purely
legal, when public interest is involved, and in case of urgency. It also argued that certiorari may also be availed of
where an appeal would be slow, inadequate, and insufficient; and that it is within this Court’s power to suspend or
exempt a particular case from the operation of the rules when its strict application will frustrate rather than promote
justice. Thus, the People asked for a review of the case based on substantial justice and the claimed merits of the
instant petition.
Romualdez countered in his Rejoinder18 that the assailed Resolutions, being final, can no longer be questioned, re-
opened, or reviewed; that public policy and sound practice demand that at the risk of occasional errors, judgments of
courts become final and irrevocable at some definite date fixed by law. Citing the express provision of Section 7 of
Republic Act No. 1606, as amended by Republic Act No. 8249 (which provides that decisions and final orders of the
Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions
of law in accordance with Rule 45 of the Rules of Court), he argued that certiorari cannot be availed of because of
the availability of appeal.
These submissions bring to the fore the threshold issue of whether the present petition may be given due course
given the Rule 65 mode of review that the People used. As will be seen below, our examination of this threshold
issue leads to the consideration of the grave abuse of discretion issue.
OUR RULING
The Threshold Issue
The Sandiganbayan ruling granting Romuldez’ motion to quash the Information shall, upon finality, close and
terminate the proceedings against Romuldez; hence, it is a final ruling that disposes of the case and is properly
reviewable by appeal.19 The appeal, as Romualdez correctly maintains, is through Section 7 of Presidential Decree
No. 1606 (as amended by Section 5 of Republic Act No. 8249), which provides that decisions and final orders of the
Sandiganbayan are appealable to the Supreme Court by petition for review on certiorari raising pure questions of law
in accordance with Rule 45.
Significantly, the People does not deny at all that the mode of review to question a Sandiganbayan final ruling is by
way of Rule 45, as the above cited provision requires. It only posits that this requirement does not foreclose the use
of a Rule 65 petition for certiorari premised on grave abuse of discretion when the issue is purely legal, when public
interest is involved, or in case of urgency. In short, the People asks us to relax the application of the rules on the
modes of review.
The purpose and occasion for the use of Rules 45 and 65 as modes of review are clearly established under the
Rules of Court20 and related jurisprudence.21 Rule 45 provides for the broad process of appeal to the Supreme Court
on pure errors of law committed by the lower court. Rule 65, on the other hand, provides a completely different basis
for review through the extraordinary writ of certiorari. The writ is extraordinary because it solely addresses lower
court actions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction. By express provision, Rule 65 is the proper remedy when there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law. Thus, the remedies of appeal and certiorari are mutually
exclusive and not alternative or successive; certiorari is not allowed when a party to a case fails to appeal a judgment
or final order despite the availability of that remedy; a petition for certiorari cannot likewise be a substitute for a lost
appeal.22
Cases on the choice between the Rule 45 and Rule 65 modes of review are not novel. Because of the spirit of
liberality that pervades the Rules of Court23 and the interest of substantial justice that we have always believed
should be upheld,24 we have had occasions to relax the strict rules regulating these modes of review. However,
these occasions are few and far between and have always been attended by exceptional circumstances; otherwise,
the exceptions would displace the general rule, rendering useless the distinctions painstakingly established through
the years to foster procedural orderliness.
In Filoteo v. Sandiganbayan25 we allowed a Rule 65 petition, notwithstanding that the proper remedy is a Rule 45
appeal, to review a Sandiganbayan Decision in view of the importance of the issues raised in the case. We similarly
allowed a review under Rule 65 in Republic v. Sandiganbayan (Third Division)26 and Republic v. Sandiganbayan
(Special First Division)27 – cases on ill-gotten wealth – on the reasoning that the nature of the cases was endowed
with public interest and involved public policy concerns. In the latter Republic v. Sandiganbayan case, we added that
substantial justice to the Filipino people and to all parties concerned, not mere legalisms or perfection of form, should
be relentlessly and firmly pursued. In the past, we have likewise allowed a similar treatment on the showing that an
appeal was an inadequate remedy.28 That we can single out for special treatment cases involving grave abuse of
discretion is supported by no less than the second paragraph of Article VIII, Section 1 of the 1987
Constitution which provides:
Judicial power includes the duty of the courts of justice to settle actual controversy involving rights which are legally
demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
Under this provision, action on grave abuse of discretion is not only a power we can exercise; more than this, it is a
duty we must discharge.
In the spirit embodied in this constitutional provision and in the interest of substantial justice, we will not hesitate to
deviate from the strict application of our procedural rules when grave abuse of discretion amounting to lack or excess
of jurisdiction is properly and substantially alleged in a petition filed after the lapse of the period for appeal under
Rule 45 but prior to the lapse of the period for filing a Rule 65 petition. Conceptually, no major deviation from the
rules in fact transpires in doing this. Under established jurisprudence, decisions and rulings rendered without or with
lack or excess of jurisdiction are null and void,29 subject only to the procedural limits on the right to question them
provided under Rule 65.30 It is for this reason that a decision that lapses to finality fifteen (15) days after its receipt
can still be questioned, within sixty (60) days therefrom, on jurisdictional grounds, although the decision has
technically lapsed to finality. The only deviation in terms of strict application of the Rules is from what we have
discussed above regarding the basic nature of a petition for certiorari as expressly laid down by Rule 65; it is
available only when there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, and thus is not allowed as a substitute when a party fails to appeal a judgment or final order despite the
availability of that remedy.31
Under these terms, if the Sandiganbayan merely legally erred while acting within the confines of its jurisdiction, then
its ruling, even if erroneous, is properly the subject of a petition for review on certiorari under Rule 45, and any Rule
65 petition subsequently filed will be for naught. The Rule 65 petition brought under these circumstances is then
being used as a substitute for a lost appeal. If, on the other hand, the Sandiganbayan ruling is attended by grave
abuse of discretion amounting to lack or excess of jurisdiction, then this ruling is fatally defective on jurisdictional
ground and we should allow it to be questioned within the period for filing a petition for certiorari under Rule 65,
notwithstanding the lapse of the period of appeal under Rule 45. To reiterate, the ruling’s jurisdictional defect and the
demands of substantial justice that we believe should receive primacy over the strict application of rules of
procedure, require that we so act.
The Grave Abuse of Discretion Issue
Romualdez’ motion to quash that gave rise to the present case was
anchored on Section 3 (a) of Rule 117 of the Revised Rules of Court which provides:
Section 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
xxxx
The determinative test in appreciating a motion to quash under this rule is the sufficiency of the averments in the
information, that is, whether the facts alleged, if hypothetically admitted, would establish the essential elements of the
offense as defined by law without considering matters aliunde.32 As Section 6, Rule 117 of the Rules of Criminal
Procedure requires, the information only needs to state the ultimate facts;33 the evidentiary and other details can be
provided during the trial.34
The legal provision under which Romuldez stands charged – Section 3 (e) of RA 3019 – on the other hand provides:
Sec. 3. Corrupt practices by public officers. – In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practice of any public officer and are hereby declared to be
unlawful:
xxxx
(e) causing any undue injury to any party, including the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of
offices of government corporations charged with the grant of licenses or permits or other concessions.
Reduced to its elements, a violation under this provision requires that:35
1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence in the discharge of
his functions; and
3. His action caused undue injury to any party, including the government, or gave a private party unwarranted
benefits, advantage or preference.
Whether the Sandiganbayan acted correctly, or committed errors of law while in the exercise of its jurisdiction, or
gravely abused its discretion in quashing the information, are to be determined based on the application of the
standards in evaluating a motion to quash, in light of the elements and terms of the offense with which the accused
stands charged. The Sandiganbayan acts correctly or commits errors of law depending on its conclusions if – based
solely on the "four corners" of the information as jurisprudence mandates,36 independently of any evidence whether
prima facie or conclusive, and hypothetically assuming the truth of all the allegations in the Information – it rules on
whether all the elements of the offense as defined by law are present. On the other hand, it acts with grave abuse of
discretion if its ruling is a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction; or if it rules in
an arbitrary or despotic manner by reason of passion or personal hostility; or if it acts in a manner so patent and
gross as to amount to an evasion of positive duty, or to a virtual refusal to perform the duty enjoined, or to action
outside the contemplation of law.37
Our reading of the Information, based on the elements of the offense, shows us that the first element of the offense is
reflected in the allegation that the "accused BENJAMIN ‘KOKOY’ ROMUALDEZ, a public officer being then the
Provincial Governor of the Province of Leyte, while in the performance of his official function, committing the offense
in relation to his Office… ." In plain terms, the accused was then a public officer discharging official functions.
The second element appears in the averment that the "accused… willfully, unlawfully and criminally with evident bad
faith …" and the more particular averment that "accused public officer being then the elected Provincial Governor of
Leyte and without abandoning said position, and using his influence with his brother-in-law, then President Ferdinand
E. Marcos, had himself appointed and/or assigned as Ambassador to foreign countries, particularly the People’s
Republic of China (Peking), Kingdom of Saudi Arabia (Jeddah), and United States of America (Washington D.C.),
knowing fully well that such appointment and/or assignment is in violation of the existing laws as the Office of the
Ambassador or Chief of Mission is incompatible with his position as Governor of the Province of Leyte." In short,
while being the elected Governor and in "evident bad faith," he had himself appointed to the incompatible position of
ambassador.
Finally, the last element corresponds to the allegation that the "accused… cause[d] undue injury to the Government,"
supported further by the particular allegation "thereby enabling himself to collect dual compensation from both the
Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred Seventy-six
thousand Nine Hundred Eleven Dollars and 56/100 (US $276,911.56), US Currency or its equivalent amount of Five
Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred
Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine Currencies,
respectively, to the damage and prejudice of the Government in the aforementioned amount of P5,806,709.50."
Thus, attended by and as a result of the second element, the accused caused undue injury to the government by
collecting dual compensation from the two incompatible positions he occupied.
In its first Resolution, the Sandiganbayan concluded that (1) "the allegation of damage and prejudice to the
Government . . . is without basis, absent a showing that the accused did not actually render services for his two
concurrent positions. . . and that (2) [T]he accused alleges in the subject Motion that he actually rendered service to
the government. To receive compensation for actual services rendered would not come within the ambit of improper
or illegal use of funds or properties."38 After citing jurisprudence defining evident bad faith and gross negligence, it
went on to state that (3) the accused may have been inefficient as a public officer by virtue of his holding of two
concurrent positions, but such inefficiency is not enough to hold him criminally liable under the Information charged
against him, given the elements of the crime and the standards set by the Supreme Court …. At most, any liability
arising from the holding of both positions by the accused may be administrative in nature."39 [underscoring supplied]
In the second Resolution, on the other hand, the Sandiganbayan concluded: (1) on the allegation that Romualdez
had himself appointed as Ambassador while concurrently serving as Provincial Governor, that it "finds that accused
cannot be held criminally liable, whether or not he had himself appointed to the position … because the act of
appointment is something that can only be imputed to the appointing authority … Even assuming that the appointee
influenced the appointing authority, the appointee only makes a passive participation by entering into the
appointment, unless it is alleged that he acted in conspiracy with his appointing authority …";40 and (2) on the matter
of dual compensation, that the allegation … cannot sustain the theory of the prosecution that the accused caused
damage and prejudice to the government, in the absence of any contention that receipt of such was tantamount to
giving unwarranted benefits, advantage or preference to any party and to acting with manifest partiality, evident bad
faith or gross excusable negligence; besides, receiving compensation is an incident of actual services rendered,
hence it cannot be construed as injury or damage to the government."41
To put our discussions in perspective, we are not here primarily engaged in evaluating the motion to quash that
Romualdez filed with the Sandiganbayan. Rather, we are evaluating – on the basis of the standards we have defined
above – the propriety of the action of the Sandiganbayan in quashing the Information against Romualdez.
Based on these considerations, we hold that the Sandiganbayan’s actions grossly violated the defined standards. Its
conclusions are based on considerations that either not appropriate in evaluating a motion to quash; are evidentiary
details not required to be stated in an Information; are matters of defense that have no place in an Information; or are
statements amounting to rulings on the merits that a court cannot issue before trial.
To illustrate, in the first Resolution, the Sandiganbayan saw no basis for the allegation of damage and prejudice for
the failure of the Information to state that Romualdez did not render service in the two positions which he occupied.
The element of the offense material to the "damage and prejudice" that the Sandiganbayan refers to is the "undue
injury" caused to the government by Romualdez’ receipt of compensation for the incompatible positions that he could
not simultaneously occupy. The allegation of "undue injury" in the Information, consisting of the extent of the injury
and how it was caused, is complete. Beyond this allegation are matters that are already in excess of what a proper
Information requires. To restate the rule, an Information only needs to state the ultimate facts constituting the
offense, not the finer details of why and how the illegal acts alleged amounted to undue injury or damage – matters
that are appropriate for the trial. Specifically, how the two positions of Romualdez were incompatible with each other
and whether or not he can legally receive compensation for his two incompatible positions are matters of detail that
the prosecution should adduce at the trial to flesh out the ultimate facts alleged in the Information. Whether or not
compensation has been earned through proper and commensurate service is a matter in excess of the ultimate facts
the Information requires and is one that Romualdez, not the Information, should invoke or introduce into the case as
a matter of defense.
From another perspective, the Sandiganbayan’s view that the Information should have alleged that services were not
rendered assumes that Romualdez can occupy two government positions and can secure compensation from both
positions if services were rendered. At the very least, these are legally erroneous assumptions that are contrary to
what the then prevailing laws provided. Article XII (B), Section 4 of the 1973 Constitution provides that:
Unless otherwise provided by law, no elective official shall be eligible for appointment to any office or position during
his tenure except as Member of the Cabinet.
On the other hand, Presidential Decree No. 807 Providing for the Organization of the Civil Service Commission
states in its Section 44 that –
Limitation on Appointment. – No elective official shall be eligible for appointment to any office or position during his
term of office.
On the matter of double compensation, the 1973 Constitution likewise has a specific provision – Article XV,
Section 5 – which states:
SEC. 5. No elective or appointive public officer or employee shall receive additional or double compensation unless
specifically authorized by law, nor accept, without the consent of the Batasang Pambansa, any present, emolument,
office or title of any kind from any foreign state.
Neither the Sandiganbayan nor Romuladez has pointed to any law, and we are not aware of any such law, that
would exempt Romualdez from the prohibition of the above-cited provisions.lawphil
In the context of ruling on a motion to quash, the allegation that services were not rendered that the Sandiganbayan
wished to require, not being a fact material to the elements of the offense, is an extraneous matter that is
inappropriate for the Sandiganbayan to consider for inclusion in the Information. That the Sandiganbayan has a
fixation on this approach is patent from a reading of the second assailed Resolution when the Sandiganbayan,
following the same line of thought, once more insisted that "receiving compensation is an incident of actual services
rendered, hence it cannot be construed as injury or damage to the government." Thus again, the Sandiganbayan
grossly erred in the same manner it did in the first Resolution.
For the Sandiganbayan to assume, too, and to conclude, that there was no damage and prejudice since there was
no illegality in being compensated for actual services rendered, is to pass upon the merits of the case – a task
premature for the Sandiganbayan to undertake at the motion-to-quash stage of the case. In so doing, the
Sandiganbayan prematurely ruled on at least two matters. First, the Sandiganbayan either assumed as correct, or
admitted for purposes of the motion to quash, the defense allegation that Romualdez rendered services, when this is
a disputed evidentiary matter that can only be established at the trial. Second, and as already mentioned above, the
legal status of the receipt of compensation for each of two incompatible offices is, at best, legally debatable. The
Sandiganbayan repeated this premature ruling on the merits of the case in its subsequent statement in the first
Resolution that "the accused may have been inefficient as a public officer by virtue of his holding of two concurrent
positions, but such inefficiency is not enough to hold him criminally liable under the Information charged against him,
given the elements of the crime and the standards set by the Supreme Court … At most, any liability arising from the
holding of both positions by the accused may be administrative in nature."42
Worse than the premature ruling it made in the above-quoted conclusion was the patent speculation that the
Sandiganbayan undertook in considering "inefficiency" and arriving at its conclusion. Still much worse was
its misreading of what a violation of Section 3(e), R.A. 3019 involves. Correctly understood, it is not the holding
of two concurrent positions or the attendant efficiency in the handling of these positions, but the causing of undue
injury to the government that is at the core of a Section 3(e) violation. The same misreading was evident when the
Sandiganbayan stated in its second Resolution that "the accused cannot be held criminally liable, whether or not he
had himself appointed to the position of the ambassador, while concurrently holding the position of provincial
governor, because the act of appointment is something that can only be imputed to the appointing authority."
The Sandiganbayan fared no better and similarly gravely abused its discretion in the second Resolution when it
concluded that that there could be no damage and prejudice to the government "in the absence of any contention
that receipt of such was tantamount to giving unwarranted benefits, advantage or preference to any party and to
acting with manifest partiality, evident bad faith or gross excusable negligence." That no allegation of "giving
unwarranted benefits, advantage or preference to any party" appears in the Information is due obviously to the fact
that this allegation is not necessary. "Giving a private party unwarranted benefits, advantage or preference" is not an
element that must necessarily be alleged to complete the recital of how Section 3 (e) is violated because it is only
one of two alternative modes of violating this provision, the other being causing "undue injury to any party, including
the government." In short, the Information is complete solely on the basis of the "undue injury" allegation.
Even a cursory examination of the Information would show that an allegation of "evident bad faith" was expressly
made, complete with a statement of how the bad faith was manifested, that is, "being then the elected Provincial
Governor of Leyte and without abandoning such position, and using his influence with his brother-in-law, then
President Ferdinand E. Marcos, [Romualdez] had himself appointed and/or assigned as Ambassador to foreign
countries...". Whether this allegation can be successfully proven by evidence or established through an analysis of
the nature of the power of appointment remains to be seen after trial, not at the motion-to-quash stage of the case. At
this earlier stage, all that is required is for this allegation to be an ultimate fact directly providing for an element of the
offense.
In light of all these, we conclude that the Sandiganbayan grossly and egregiously erred in the considerations it made
and in the conclusions it arrived at when it quashed the Information against Romualdez, to the point of acting
outside its jurisdiction through the grave abuse of discretion that attended its actions. Its errors are so patent
and gross as to amount to action outside the contemplation of law. Thus, the declaration of the nullity of the assailed
Sandiganbayan Resolutions is in order.
WHEREFORE, premises considered, we hereby GRANT the petition and accordingly ANNUL the Sandiganbayan’s
Resolutions dated 22 June 2004 and 23 November 2004 in CRIM. CASE NO. 26916 entitled People of the
Philippines versus Benjamin "Kokoy" Romualdez. The Sandiganbayan is hereby ORDERED TO PROCEED with the
trial on the merits of the case on the basis of the Information filed. Costs against the private respondent Benjamin
"Kokoy" Romualdez.
SO ORDERED.
A.M. No. 2011-04-SC July 5, 2011
Re: Gross Violation of Civil Service Law on the Prohibition Against Dual Employment and Double
Compensation in the Government Service Committed by Mr. Eduardo V. Escala, SC Chief Judicial Staff
Officer, Security Division, Office of Administrative Services.
 RESOLUTION
PER CURIAM:
Before us is an administrative case which arose from the investigation conducted by the Office of Administrative
Services (OAS) in connection with a complaint against Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer,
Security Division, OAS for alleged gross violation of the Civil Service Law on the prohibition against dual employment
and double compensation in the government service.
I. Antecedents
Respondent was appointed by the Court as SC Chief Judicial Staff Officer, Security Division, OAS on July 14, 2008.
His application papers show he has experience and training as a police officer, having been employed as Chief
Inspector of the Philippine National Police (PNP) Aviation Security Group at the time of his appointment in the
Supreme Court.
Immediately upon his appointment on July 14, 2008, respondent was allowed to assume office and perform his
duties, for reasons of exigency in the service although he has yet to comply with the submission of all the
documentary requirements for his appointment.
During the course of his employment, an anonymous letter1 reached the OAS reporting the respondent’s gross
violation of the Civil Service Law on the prohibition against dual employment and double compensation in the
government service. The letter alleged that respondent accepted employment, and thus received salaries and other
benefits, from the Court and also from the PNP of which he remained an active member.
The OAS’ inquiries on this allegation confirmed that prior to his employment at the Court, respondent was an active
member of the PNP assigned with the Aviation Security Group – 2nd Police Center for Aviation Security at the
Manila Domestic Airport in Pasay City, with a permanent status and rank of Police Chief Inspector. Taking the
chance to explore his opportunities and skills outside of the police service, he applied for the position of SC Chief
Judicial Staff Officer, Security Division, OAS. While employed in the Court and receiving his regular compensation,
he continued to be a bonafide member of the PNP assigned with the Aviation Security Group with the same status
and rank of Police Chief Inspector until the date when he optionally retired on September 30, 2009.
The OAS was also informed that the Internal Affairs Office (IAO) of the PNP is likewise carrying out a separate probe
and investigation on respondent for the same alleged gross violation of the Civil Service Law.
Considering the seriousness of the matter, respondent was preventively suspended by the Court pending the results
of the IAO’s investigations and the separate administrative investigation of the OAS.2
In the OAS Memorandum dated May 6, 2011,3 respondent was directed to explain why he should not be
administratively charged with gross dishonesty and conduct prejudicial to the best interest of the service for violation
of the Civil Service Law on the prohibition against dual employment and double compensation in the government
service.
In his letter-comment dated May 26, 2011,4 respondent submitted to the findings of the OAS but "humbly implore
your magnanimity not to charge him with gross dishonesty and conduct prejudicial to the best interest of the
service"5 and offered the following explanation:
2.1 On January 24, 2008, I applied for optional retirement as a member of the Philippine National Police
(PNP). At that time, I was informed that my application would be effective on March 31, 2008, or a period of
three (3) months from its submission date.
2.2. However, I was advised that, as part of the new policy on optional retirement, the effectivity of my
application would be six (6) months from date of its submission, or on July 14, 2008.
2.3 Pending the approval of my application for optional retirement, I applied with the Honorable Supreme
Court for the position of Chief Security Officer. In the course of my interview, I declared that the Philippine
National Police (PNP) had yet to formally approve my application for optional retirement.
2.4 Due to the urgent need to fill-in the said vacant position I was hired by the Honorable Supreme Court as
its employee which took effect on July 14, 2008. From then on, and as shall be further discussed hereunder, I
have faithfully discharged my duties and responsibilities in order to ensure the safety and security of the
Honorable Supreme Court, as an institution; the Honorable Justices; and the court personnel.
2.5 In good faith, and without concealing any material fact from the Honorable Supreme Court, I submitted all
the required documents and clearances in support of my appointment. At that time, I had no reason to doubt
that my optional retirement would be deemed effective on July 14, 2008-which date actually coincided with the
effectivity of my employment with the Honorable Supreme Court.
2.6 But, then, as fate had it, my application for optional retirement was not immediately acted upon by the
Philippine National Police (PNP) within the original period of my request. As it is, such application was
bypassed several times, and I was considered optionally retired on September 30, 2009.
 2.7 During the period of almost fourteen (14) months, my employment with the Honorable Supreme Court
overlapped with that of the Philippine National Police (PNP). In the interim, I likewise received my
corresponding monthly salaries from the Philippine National Police (PNP). Not for anything else, I did so for
economic reasons.
2.8 Without proffering any justification for may actions, which I now realize to be totally uncalled for, I was
then of the honest impression that I was still entitled to such monthly salaries pending the approval of my
application for optional retirement which dragged for a longer period of time with no fault on my part."6
Offering no justification and admitting his fault, and cognizant of the consequences of his wrong judgment,
respondent extends his apologies to the Court and to the PNP. He also informed the OAS that he made
arrangements with the PNP for the return, as in fact he had already returned, the total amount of ₱ 560,982.86
representing his salaries and allowances which he received from the PNP covering the period July 2008 to
September 2009.7 He allegedly made such restitution to shield the PNP from undue prejudice and to erase the
stigma which the incident has caused upon his person and honor.
Finally, advancing his track record of good performance both in the PNP and the Court, respondent seeks
compassion and prays that the consequences be tempered.
II. Recommendation
In its report to the Court dated June 27, 2011, the OAS presented its findings that by respondent’s own admission,
without offering any justification, his acts have prejudiced the government. His offer of mitigating circumstance -
delay in the processing of his retirement papers - is unacceptable as records of the PNP will contradict this. The
Service Record issued by the PNP in his favor for retirement purposes was dated August 26, 2008.8 Likewise, his
Certificates of Clearances, namely: (a) no pending administrative case was dated August 13, 20089; (b) no money
accountability was dated October 29, 200810 and; (c) property accountability/responsibility was dated October 31,
200811. These documents clearly show that he only started processing the requirements for his application for
optional retirement when he was already connected with the Court.
The OAS found respondent’s claim that he applied for optional retirement as early as January 2008 to be merely an
afterthought. The OAS further noted that the vacancy for the position of SC Chief Judicial Staff Officer of the Security
Division existed only after April 30, 2008. Such circumstances lead the OAS to conclude that respondent first made
clear to be appointed to the Court prior to filing his application for retirement to be sure that he transfers to another
government agency, at the same time enjoying the fruits of his retirement from the PNP. It should be noted that
governing law on retirement of members of the PNP is different from those with the Court. If the law is the same,
respondent’s employment with the Court is simply one of "transfer". However, his application to and subsequent
appointment to the Court is one of reemployment as evidenced by his sworn Certificate of Gratuity12which he
submitted to the OAS and where he clearly indicated that the inclusive dates of employment with the PNP was from
March 29, 1999 to July 13, 2008, and that the cause of his separation was optional retirement.
The OAS thus found respondent’s indirect claim of good faith unavailing. His regular receipt of his salaries from the
PNP despite presumably exclusively working with the Court implies a deliberate intent to give unwarranted benefit to
himself and undue prejudice to the government especially so by his regular submission of monthly/daily time record
as a mandatory requirement for inclusion in the payroll.
The OAS also found that respondent became aware of the approval of his application for retirement as early as
September 30, 2009. Notwithstanding such knowledge, he did not immediately refund his overpayment, if that was
indeed the case, and that his act of returning his salaries after the period of 20 months was also a mere afterthought
as he did so only because the Court became aware of it and directed him to explain. Would he have done so if no
report of his actuation was ever brought to the attention of the Court? The lapse of almost 2 years without him doing
so speaks of his intent not to return the same.
Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition,
and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to
defraud or to seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind
and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and
freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies
in an honest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to overreach
another.13
The OAS found respondent’s actuation even amounts to gross dishonesty. His receipt of salaries from the PNP
despite not rendering any service thereto is a form of deceit. Jurisprudence states that dishonesty implies a
"disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity
in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray."14
That respondent actually rendered services to the PNP, if any, despite employment in the Court, is inconsequential.
The prohibition against government officials and employees, whether elected or appointed, from concurrently holding
any other office or position in the government is contained in Section 7, Article IX-B of the 1987 Constitution which
provides:
xxx
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
The prohibition on dual employment and double compensation in the government service is further specified under
Sections 1 and 2, Rule XVIII of the Omnibus Rules Implementing Book V of E.O. No. 292, viz:
Sec. 1. No appointive official shall hold any other office or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations with original charters or their
subsidiaries, unless otherwise allowed by law or by the primary functions of his position.
Sec. 2. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation,
unless specifically authorized by law, xxxxx.
Moreover, Section 5, Canon III of the Code of Conduct for Court Personnel, specifically provides that:
Sec. 5 The full-time position in the Judiciary of every court personnel shall be the personnel’s primary employment.
For purposes of this Code, "primary employment" means the position that consumes the entire normal working hours
of the court personnel and requires the personnel’s exclusive attention in performing official duties.
Outside employment may be allowed by the head of office provided it complies with all of the following requirements:
(a) The outside employment is not with a person or entity that practices law before the courts or conducts
business with the Judiciary;
(b) The outside employment can be performed outside of normal working hours and is not incompatible with
the performance of the court personnel’s duties and responsibilities;
(c) The outside employment does not require the practice of law; Provided, however, that court personnel may
render services as professor, lecturer, or resource person in law schools, review or continuing education
centers or similar institutions;
(d) The outside employment does not require or induce the court personnel to disclose confidential
information acquired while performing duties; and
(e) The outside employment shall not be with the legislative or executive branch of government, unless
specifically authorized by the Supreme Court.
Where a conflict of interest exists, may reasonably appear to exist, or where the outside employment reflects
adversely on the integrity of the Judiciary, the court personnel shall not accept the outside employment.
With the undisputed facts of the case, the OAS considers that there is sufficient evidence to support a finding that
respondent is liable for gross dishonesty and conduct prejudicial to the best interest of the service. His non-
disclosure of the material fact that he was still employed as an active member of the PNP and receiving his monthly
salaries therein during the period that he is already a Court employee is considered substantial proof that he tried to
cheat/defraud both the PNP and the Court. This is an affront to the dignity of the Court. Indeed, respondent has
transgressed the Constitution and the Civil Service law on the prohibition on dual employment and double
compensation in the government service.
Thus, after its due investigation, the OAS submitted its report to the Court finding respondent guilty of the charges
and recommending:
a. that Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, Office of Administrative
Services, be held liable for gross dishonesty and conduct prejudicial to the best interest of the service for not
disclosing the fact that despite accepting employment with and receiving salaries from the Supreme Court, he
is still receiving his salaries and benefits from the Philippine National Police as an active member thereof; and
b. that he be dismissed from the service with forfeiture of all benefits, except accrued leave credits, if he has
any, and with prohibition from reemployment in any branch, agency or instrumentality of the government
including government-owned or controlled corporations. 15
We fully agree with the findings of the OAS and adopt its recommendations.
All court personnel ought to live up to the strictest standards of honesty and integrity, considering that their positions
primarily involve service to the public. For knowingly and willfully transgressing the prohibition on dual employment
and double compensation, as well as the Court’s rules for its personnel on conflict of interest, respondent violated the
trust and confidence reposed on him by the Court. Considering the sensitive and confidential nature of his position,
the Court is left with no choice but to declare the respondent guilty of gross dishonesty and conduct prejudicial to the
best interest of the service, which are grave offenses punished by dismissal.
WHEREFORE, the Court finds respondent Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, OAS
GUILTY of gross dishonesty and conduct prejudicial to the best interest of the service, and imposes on him the
penalty of DISMISSAL from the service and forfeiture of all benefits with prejudice to re-employment in any
government agency, including government-owned and controlled corporations.
SO ORDERED.