ELECTION

Duty of COMELEC
Subject to its authority over nuisance candidates and
its power to deny due course or cancel a certificate of
candidacy, the rule is that the COMELEC shall have
only the ministerial duty to receive and acknowledge
receipt of the certificates of candidacy. (Sec. 78, BP
881)

LAW ON PUBLIC OFFICERS

Luego vs CSC, 143 SCRA 327

(Public Officer, Appointments, CSC)
Facts: Petitioner was appointed Admin Officer II, Office

Effect Filing
An appointive public official is considered resigned
upon filing of his certificate. (Sec. 66, BP
881;Sanciangco vs. Rono, 137, SCRA 671).This includes
an employs of a GOCC organized under the Corporation
Code (Without original charter), since the law makes no
distinction. (PNOC EDC vs. NLRC, 222 SCRA 831)
Any elective official, whether national or local who has
filed a certificate of candidacy for the same or any
other office shall not be considered resigned from
office. (sec. 26, COMELEC Resolution No. 3636, Rules
and Regulations Implementing RA 9006)

of the City Mayor, Cebu City, by Mayor Solon. The

appointment was described as permanent but the
CSC approved it as temporary, subject to the final
action taken in the protest filed by the private
respondent and another employee.
Subsequently, the CSC found the private respondent
better qualified than the petitioner for the contested
position and, accordingly directed that the latter be
appointed to said position in place of the petitioner
whose appointment is revoked. Hence, the private
respondent was so appointed to the position by Mayor

Withdrawal of Certificate of Candidacy

Form written declaration under oath. There was no

withdrawal of candidacy for the position of mayor
where the candidate, before the deadline for filing
certificates of candidacy, personally appeared in the
COMELEC office, asked for his certificate of candidacy
and intercalated the word vice before the word
mayor and the following day wrote the election
registrar saying that his name be included in the list of
official candidates for mayor. (Vivero vs. COMELEC,
L 81059, Jan 12, 1989)

Duterte, the new mayor.

The petitioner, invoking his earlier permanent
appointment, questions the order and the validity of
the respondents appointment.
Issue: WON the CSC is authorized to disapprove a
permanent appointment on the ground that another
person is better qualified than the appointee and, on
the basis of this finding, order his replacement.
Held: No. The appointment of the petitioner was not
temporary but permanent and was therefore protected

Since his certificate of candidacy for the office of board

member was filed by his party, and the said party had
withdrawn the nomination which withdrawal was
confirmed by the candidate under oath, there was
substantial compliance with Sec. 73. His filing under
oath within the statutory period of his individual
certificate for candidacy for the separate office of
mayor was, in effect, a rejection of the party
nomination on his behalf for the office of board
member. (Ramirez vs. COMELEC, L-81150, Jan 12,
1992)

by Constitution. The appointing authority indicated that

it was permanent, as he had the right to do so, and it
was not for the respondent CSC to reverse him and call
it temporary.
Section 9(h), Art V of the Civil Service Decree provides
that the Commission shall have inter alia the power
to approve all appointments, whether original or
promotional, to positions in the civil service .and

disapprove those where the appointees do not possess

appropriate eligibility or required qualifications.

The CSC is not empowered to determine the kind or

nature of the appointment extended by the appointing

officer, its authority being limited to approving or
reviewing the appointment in the light of the
requirements of the CSC Law. When the appointee is
qualified and all the other legal requirements are
satisfied, the Commission has no choice but to attest to

the appointment in accordance with the CSC Laws.

CSC is without authority to revoke an appointment
because of its belief that another person was better

qualified, which is an encroachment on the discretion

vested solely in the city mayor.
MENZON V. PETILLA | Guttierez, 1991

FACTS

On February 16, 1988, by virtue of the fact that no

Governor had been proclaimed in the province of
Leyte, the Secretary of Local Government Luis
Santos designated the Vice-Governor, Leopoldo E.
Petilla as Acting Governor of Leyte
On March 25, 1988 the petitioner Aurelio D.
Menzon,
a
senior
member
of
the
SangguniangPanlalawigan was also designated by
Secretary Luis Santos to act as the Vice-Governor
for the province of Leyte.
On May 29, 1989, the Provincial Administrator,
Tente U. Quintero inquired from the Undersecretary
of the Department of Local Government, Jacinto T.
Rubillar, Jr., as to the legality of the appointment of
the petitioner to act as the Vice-Governor of Leyte.
Undersecretary Jacinto T. Rubillar, Jr. stated that
since B.P. 337 has no provision relating to
succession in the Office of the Vice-Governor in
case of a temporary vacancy, the appointment of
the petitioner as the temporary Vice-Governor is
not necessary since the Vice-Governor who is
temporarily performing the functions of the
Governor, could concurrently assume the functions
of both offices.
SangguniangPanlalawigan, in a special session held
on July 7, 1989, issued Resolution No. 505 where it
held invalid the appointment of the petitioner as
acting Vice-Governor of Leyte.
there is no permanent (sic) nor a vacancy in said
office.
petitioner, on July 10, 1989, through the acting LDP
Regional Counsel, Atty. ZosimoAlegre, sought
clarification from Undersecretary Jacinto T. Rubillar,
Jr.

that "there is no succession provided for in case of

temporary vacancy in the office of the vicegovernor and that the designation of a temporary
vice-governor is not necessary.
In view of the clarificatory letter of Undersecretary
Rubillar, the Regional Director of the Department of
Local
Government,
Region
8,
ResurreccionSalvatierra, on July 17, 1989, wrote a
letter addressed to the Acting-Governor of Leyte,
Leopoldo E Petilla, requesting the latter that
Resolution
No.
505
of
the
SangguniangPanlalawigan be modified accordingly
Despite these several letters of request, the Acting
Governor and the SangguniangPanlalawigan,
refused to correct Resolution No. 505 and
correspondingly to pay the petitioner the
emoluments attached to the Office of ViceGovernor.
Thus, on November 12, 1989, the petitioner a
petition for certiorari and mandamus. The petition
sought the nullification of Resolution No. 505 and
for the payment of his salary for his services as the
acting Vice-Governor of Leyte. -During the
pendency of the petition, more particularly on May
16, 1990, the provincial treasurer of Leyte,
Florencio Luna allowed the payment to the
petitioner of his salary as acting Vice-Governor of
Leyte in the amount of P17,710.00, for the actual
services rendered by the petitioner as acting ViceGovernor.
On August 28, 1990, this Court dismissed the
petition filed by Aurelio D. Menzon.
On September 6, 1990, respondent LeopoldoPetilla,
by virtue of the above resolution requested
Governor Larrazabal to direct the petitioner to pay
back to the province of Leyte all the emoluments
and compensation which he received while acting
as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a
motion for reconsideration of our resolution. The
motion prayed that this Court uphold the
petitioner's right to receive the salary and
emoluments attached to the office of the ViceGovernor while he was acting as such.

ISSUE
(1) WON there was a vacancy.
(2) WON the Secretary of Local Government has the
authority to make temporary appointments--YES

HELD/RATIO
(1) YES. The law on Public Officers is clear on the
matter. There is no vacancy whenever the office is
occupied by a legally qualified incumbent. A
sensucontrario, there is a vacancy when there is no
person lawfully authorized to assume and exercise at
present the duties of the office. It can be readily seen

that the office of the Vice-Governor was left vacant

when the duly elected Vice-Governor LeopoldoPetilla
was appointed Acting Governor. In the eyes of the law,
the office to which he was elected was left barren of a
legally qualified person to exercise the duties of the
office of the Vice-Governor.

There
is
no
satisfactory
showing
that
LeopoldoPetilla, notwithstanding his succession to
the Office of the Governor, continued to
simultaneously exercise the duties of the ViceGovernor. The nature of the duties of a Provincial
Governor call for a full-time occupant to discharge
them. More so when the vacancy is for an
extended period. Precisely, it was Petilla's
automatic assumption to the acting Governorship
that resulted in the vacancy in the office of the
Vice-Governor.
(2) YES. Under the circumstances of this case and
considering the silence of the Local Government Code,
the Court rules that, in order to obviate the dilemma
resulting from an interregnum created by the vacancy,
the President, acting through her alter ego, the
Secretary of Local Government, may remedy the
situation. The temporary appointment extended to the
petitioner to act as the Vice-Governor is valid. The
exigencies of public service demanded nothing less
than the immediate appointment of an acting ViceGovernor.

under Commonwealth Act No. 588 and the Revised

Administrative Code of 1987, the President is
empowered to make temporary appointments in
certain public offices, in case of any vacancy that
may occur. In the absence of any contrary
provision in the Local Government Code and in the
best interest of public service, we see no cogent
reason why the procedure thus outlined by the two
laws may not be similarly applied in the present
case.
It was best for Leyte to have a full- time Governor
and an acting Vice-Governor. Service to the public
is the primary concern of those in the government.
It is a continuous duty unbridled by any political
considerations.
In view of the foregoing, the petitioner's right to be
paid the salary attached to the Office of the Vice
Governor is indubitable. The compensation,
however, to be remunerated to the petitioner,
following the example in Commonwealth Act No.
588 and the Revised Administrative Code, and
pursuant to the proscription against double
compensation must only be such additional
compensation as, with his existing salary, shall not
exceed the salary authorized by law for the Office
of the Vice-Governor.
And even granting that the President, acting
through the Secretary of Local Government,
possesses no power to appoint the petitioner, at
the very least, the petitioner is a de facto officer
entitled to compensation.
There is no denying that the petitioner assumed
the Office of the Vice-Governor under color of a

known appointment. As revealed by the records,

the petitioner was appointed by no less than the
alter ego of the President, the Secretary of Local
Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of
Department of Local Government Regional Director
Res Salvatierra. The appointment has the color of
validity.
The petitioner, for a long period of time, exercised
the duties attached to the Office of the ViceGovernor. He was acclaimed as such by the people
of Leyte. Upon the principle of public policy on
which the de facto doctrine is based and basic
considerations of justice, it would be highly
iniquitous to now deny him the salary due him for
the services he actually rendered as the acting
Vice-Governor of the province of Leyte
-The additional compensation which the petitioner
has received, in the amount exceeding the salary
authorized by law for the position of Senior Board
Member, shall be considered as payment for the
actual services rendered as acting Vice-Governor
and may be retained by him.

CABAGNOT v. CIVIL SERVICE COMMISSION

FACTS:
A new organizational structure and staffing
pattern of the
provincialgovernment of Aklan was approved by
the Joint Commission on LocalGovernment
Personnel Administration. The reorganization
provided three hundred sixty four (364) regular
plantillapositions from the previous three
hundred thirty nine (339) with the Office of the
Governor allocated one hundred forty four (144)
from the previous sixty(60) positions.Petitioner
herein, issued a Memorandum inviting all
provincial officials andemployees to apply for
any of the authorized positions in the new
staffingpattern for the evaluation and assessmen
t of the Provincial PlacementCommittee. 21
supposedly aggrieved employees jointly
appealed to petitioner pursuantto Section 18 of
the Rules on Government Reorganization issued
by the CivilService Commission and Sections 2,
3, 4, 5 and 12 of Republic Act 6656(1988)
entitled An Act to Protect the Security of Tenure
of Civil Officers
andEmployees in the Implementation of Govern
ment Reorganization. Theyprayed that they be
appointed to the positions they applied for to
which
theyare eligible, having the required educational
background, training andexperience. They

likewise sent petitioner individual letters

reiterating theirqualifications and praying for
reconsideration of their new appointments
topositions lower in rank than their positions pri
or to the reorganization.Petitioner denied their
plea.Upon appeal, CSC found that irregularities
attended the election of the twomembers
representing the first and second level personnel
to the PlacementCommittee based on the
affidavit executed by one Nida E. Melgarejo and
theletter appeal of some thirty-seven (37) emplo
yees of the provincialgovernment of Aklan.
Furthermore, it found petitioner to have violated
Sec. 7of the Rules on Reorgnization and
Memorandum Circular No. 5, s. of
1988providing preference for appointment of em
ployees holding permanentpositions considering
that private respondents who were all holdingpe
rmanent appointments to regular items prior to
the reorganization wereproposed to positions
much lower than their former items despite the
factthat their old items were carried over in the
new staffing pattern. TheCommission found no re
ason for displacing the services of privaterespon
dents primarily because there are eighty-four
(84) additional positionsfor the Office of the
Governor alone. The CSC found that sixteen (16)
of the seventeen (17) private respondentswere
demoted because of the wide disparity between
the former positionsheld by them and the
positions to which they were proposed by
petitioner.

obligation to implement and safeguard

theconstitutional provisions on security of
tenure and due process. In the presentcase, the
issuance by the CSC of the questioned
resolutions, for the
reasonsclearly explained therein, is indubitably i
n the performance of itsconstitutional task of
protecting and strengthening the civil service.
However, with respect to private respondent
Oczon, we hold that
respondentCommission did commit grave abuse
of discretion in ordering hisreinstatement with
back salary, considering that he was not
terminated as a result of the reorganization

CITY OF MANILA VS SUBIDO

17 SCRA 231 (123 Phil. 1080)- Political Law Law on

Public Officers Vacancy of an Office
In 1966, Manila Mayor Antonio Villegas appointed 500
employees

to

the

city

government.

However,

Commissioner Abelardo Subido of the Civil Service

Commission

refused

to

confirm

the

said appointments because he avers that Villegas is no

ISSUE/S:

longer the mayor of Manila because in 1965, he

Whether CSC committed grave abuse of

discretion in reinstatingthe dismissed
employees.

accepted a presidential appointment as a director in

HELD:

Villegas insisted he is still the mayor because in the

Yes. With respect to the sixteen private respond

ents, respondentCommission committed no
grave abuse of discretion in ordering that they
be"immediately appointed and restored to their
positions or positions of comparable or equivale
nt rank without loss of seniority rights with back
salaries reckoned from dates they should properl
y have been appointedthereto effective the date
of the reorganization of said province."It is
within the power of public respondent to order
the reinstatement of government employees
who have been unlawfully dismissed. The CSC,
as thecentral personnel agency, has the

first place, he was merely designated as a director of

the NAWASA (National Waterworks and Sewerage

Authority).

NAWASA and that he later resigned as such. He further

argued that Subido, as the Civil Service Commissioner
has no power to determine whether or not Villegas
vacated his public office. On that point, Subido averred
that he must necessarily determine if Villegas was still
the

mayor

in

order

to

further

determine

if

the appointments made were valid.

ISSUE: Whether or not Villegas vacated the mayoralty

office as determined by the Civil Service Commissioner.

of Victoria by her husband, the mayor falls within the

prohibited class of appointments.
The court ruled that the Civil Service Commission had
the authority the promotional appointment extended to
the petitioner.

HELD: No. The Civil Service Commissioner has no such

power. The court did not pass upon the issue of
AGUINALDO VS SANTOS

whether or not Villegas vacated his office, hence,

the appointments he made should be confirmed by the
Civil Service because Villegas is still considered the
mayor of Manila.
Facts:
What Subido should have done, since he was doubtful
of Villegass authority, was to inform the Solicitor

Aguinaldo

General

a quo

province of Cagayan. After the December 1989 coup

the

dtat was crushed, DILG Secretary Santos sent a

mayoralty of Manila if there are valid grounds. The

telegram & letter to GovernorAguinaldo requiring him

Supreme Court cannot rule on whether or not Villegas

to show cause why he should not be suspended or

is still the mayor of Manila because the case before

removed from office for disloyalty to theRepublic. A

them is not a quo warranto case.

sworn

and

the

warrantoproceeding

latter
to

oust

may
Villegas

file
from

was

the

complaint

duly

was

electedGovernor of

also

filed

by

Mayors

the

of

several municipalities in Cagayan against Aguinaldo for

acts committed during the coup. Aguinaldo denied
being

privy

to

the

planning

actively participating in
DEBULGADO V. CSC (1994) NEPOTISM
[ G.R. NO. 111471, SEPTEMBER 26, 1994 ]
FACTS:
Rogelio R. Delgado, a mayor of San Carlos, Negros
Occidental, appointed his wife Victoria T. Debulgado as
Head of the General Service Office of the City
Government of San Carlos. The Civil Service
Commission disapproved the promotions it violated the
prohibition against nepotic appointments and not to
promotional appointments.

its

of

the

execution,

coup

or

though

he

admitted that he was sympathetic to the cause of the

rebel soldiers.

The Secretary suspended petitioner from office for 60

days from notice, pending the outcome of the formal
investigation. Later, the Secretary rendered a decision
finding petition guilty
removal

from

as

office.

charged

and ordering his

Vice-Governor Vargas

was

ISSUE:
Does nepotism apply to promotion?

installed as Governor. Aguinaldo appealed.

HELD:
Yes. The prohibitory norm against nepotism covers all
appointments without any distinction between different
kinds or types of appointments. Section 59 of the
Revised Administrative Code of 1987 (E.O. 292) covers
all appointments to the national, provincial, city and
municipal government as well as any branch or
instrumentality thereof and all government owned and
controlled corporations. The promotional appointment

Aguinaldo filed a petition for certiorari and prohibition

with

preliminary

mandatory

injunction

and/or restraining order with the SC, assailing the

decision of respondent Secretary of Local Government.
Petitioner

argued

that:

(1)

that

the

power

of

respondent Secretary to suspend or remove local

government official under Section 60, Chapter IV of B.P.

Blg. 337 was repealed by the 1987 Constitution; (2)

Held:

that since respondent Secretary no longer has power to

suspend or remove petitioner, the former could not

1.

Yes.

Aguinaldos

re-election

appoint respondent Melvin Vargas as Governor; and (3)

of Governor of

the alleged act of disloyalty committed by petitioner

administrative case pending moot and academic. It

should be proved by proof beyond reasonable doubt,

appears that after the canvassing of votes, petitioner

and not be a mere preponderance of evidence,

garnered the most number of votes among the

because it is an act punishable as rebellion under the

candidates for governor of Cagayan province. The rule

Revised Penal Code.

is that a public official cannot be removed for

Cagayan

to

has

the

position

rendered

the

administrative misconduct committed during a prior

While the case was pending before the SC, Aguinaldo

term, since his re-election to office operates as a

filed his certificate of candidacy for the position

condonation of the officer's previous misconduct to the

of Governor of

extent

Cagayan.

Three

petitions

for

of

cutting

off

the

foregoing

right

disqualification were filed against him on the ground

therefor. The

rule,

that he had been removed from office.

no application to criminal cases

to

remove

however,
pending

him
finds

against

petitioner for acts he may have committed during the

The Comelec granted the petition. Later, this was

failed coup.

reversed on the ground that the decision of the

Secretary has not yet attained finality and is still
pending review with the Court. As Aguinaldo won by a

2. Yes. The power of the Secretary to remove local

landslide margin in the elections, the resolution paved

government

the way for his eventual proclamation as Governor of

Constitution and a statutory grant from the legislative

Cagayan.

branch. The constitutional basis is provided by Articles

officials

is

anchored

on

both the

VII (17) and X (4) of the 1987 Constitution which vest in

the President the power of control over all executive
Issues:

departments, bureaus and offices and the power of

general supervision over local governments. It is a

1.

WON

petitioner's

of Governor of

re-election

Cagayan

has

to

the

position

rendered

the

administration case moot and academic

constitutional doctrine that the acts of the department

head are presumptively the acts of the President unless
expressly rejected by him. Furthermore, it cannot be
said that BP337 was repealed by the effectivity of the

2. WON the Secretary has the power to suspend or remove

local government officials as alter ego of the President

present Constitution as both the 1973 and 1987

Constitution grants to the legislature the power and
authority to enact a local government code, which

3. WON proof beyond reasonable doubt is required before

petitioner could be removed from office.

provides

for

the

manner

of

removal

of

local

government officials. Moreover, in Bagabuyo et al. vs.

Davide, Jr., et al., this court had the occasion to state

that B.P. Blg. 337 remained in force despite the

effectivity of the present Constitution, until such time

ISSUE: SCOPE of BAN ON NEPOTISM: WON a public

official could be liable for nepotism even if he did not
appoint his relative (but his relative is under his
immediate supervision)

as the proposed Local Government Code of 1991 is

approved. The power of the DILG secretary to remove
local elective government officials is found in Secs. 60
and 61 of BP 337.

3. No. Petitioner is not being prosecuted criminally,

but administratively where

the

quantum

of

proof

required is only substantial evidence. (Aguinaldo vs.

Santos, G.R. No. 94115, August 21, 1992)

CSC v. Dacoycoy

306 SCRA 425

April 29, 1999, PARDO, J.:
Nature: Appeal via certiorari
FACTS
-Suan, Citizens Crime Watch VP, filed w/ CSC QC a
complaint vs. Dacoycoy, the Vocational School
Administrator for Balicuatro College of Arts and Trade,
for HABITUAL DRUNKENESS, MISCONDUCT AND
NEPOTISM.
-on Nepotism: His two sons were recommended by Mr.
Daclag, Head of the Vocational Department of BCAT,
was recommended by Dacoycoy, then approved by
DECS Regional Director Dioko, w/ provision that such
shall be under the immediate supervision of Daclag. As
for Ped Dacoycoys appointment as casual utility
worker, Dacoycoy was the one who certified that
funds are available for the proposed appointment of
Rito Dacoycoy and even rated his performance as
very satisfactory. Ped stated in his position
description form that his father was his next higher
supervisor.
*CSC Regional Office (fact-finding): issued
corresponding formal charge, found no substantial
evidence to support charge of habitual drunkenness
and misconduct but GUILTY OF NEPOTISM on 2 counts:
appointment of 2 sons as driver and utility worker, and
their assignment under his immediate supervision and
control, DISMISSED. MR DENIED. APPEALED to CA
*CA: reverse and set aside CSC: HE DID NOT APPOINT
OR RECOMMEND HIS TWO SONS, so NOT GUILTY.

HELD: YES. GUILTY OF NEPOTISM

>>>The circumvention of the ban on nepotism is quite
obvious. Unquestionably, Mr. Daclag was a subordinate
of respondent Pedro O. Dacoycoy, who was the school
administrator. He authorized Mr. Daclag to recommend
the appointment of first level employees under his
immediate supervision. Then Mr. Daclag recommended
the appointment of respondents two sons and placed
them under respondents immediate supervision
serving as driver and utility worker of the school. Both
positions are career positions.
Applicable law: Sec.59 (see de leon for the copy)
Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or
affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the
appointee.
In the last two mentioned situations, it is immaterial
who the appointing or recommending authority
is. To constitute a violation of the law, it suffices that
an appointment is extended or issued in favor of a
relative within the third civil degree of consanguinity or
affinity of the chief of the bureau or office, or the
person exercising immediate supervision over the
appointee.
ON WON CSC is the party to appeal when CA
reverses its judgment: YES. Now expressly abandon
and overrule extant jurisprudence that:
a. the phrase party adversely affected by the
decision refers to the government employee
against whom the administrative case is filed
for the purpose of disciplinary action which
may take the form of suspension, demotion in
rank or salary, transfer, removal or dismissal
from office and
b. not included are cases where the penalty
imposed is suspension for not more then thirty
(30) days or fine in an amount not exceeding
thirty days salary or
c. when the respondent is exonerated of the
charges, there is no occasion for appeal.
In other words, we overrule prior decisions holding
that the Civil Service Law does not contemplate a
review of decisions exonerating officers or employees
from administrative charges
DEBULGADO vs. CSCS NOT APPLICABLE: The
issues in Debulgado are whether a promotional
appointment is covered by the prohibition against
nepotism or the prohibition applies only to original
appointments to the civil service, and whether the
Commission had gravely abused its discretion in
recalling and disapproving the promotional
appointment given to petitioner after the Commission
had earlier approved that appointment. Debulgado
never even impliedly limited the coverage of the ban

on nepotism to only the appointing or recommending

authority for appointing a relative. Precisely, in
Debulgado, the Court emphasized that Section 59
means exactly what it says in plain and ordinary
language: x x x The public policy embodied in Section
59 is clearly fundamental in importance, and the Court
had neither authority nor inclination to dilute that
important public policy by introducing a qualification
here or a distinction there.
-Remember that NEPOTISM BAN was meant to be
comprehensive!
DISPOSITION. GRANT PETITION, REVERSE CA DECISION

Thereafter, Reyes filed a certificate of candidacy with

the Comelec but a petition for disqualification was filed
against him. Thus, the Comelec canceled Reyess
certificate of candidacy. However, the Municipal Board
of

Canvassers

of

Bongabong

unaware

of

the

disqualification of Reyes by the Comelec, proclaimed

him the duly-elected mayor.

The COMELEC en banc declared him to have been

validly disqualified ascandidate and, consequently, set
REYES vs. COMELEC

aside his proclamation as municipal mayor. Hence the

G.R. No. 120905, March 7, 1996

petition in G.R. No. 120905, which was filed on July 20,

1995, alleging grave abuse of discretion by the
COMELEC

FACTS:

on

the

ground

that

the

decision

in

theadministrative case against petitioner Reyes was

not yet final and executory and therefore could not be

Dr. Manalo filed with the Sangguniang Panlalawigan

anadministrative complaint against incumbent Mayor
Reyes of Bongabong, Oriental Mindoro. It was alleged
that Reyes exacted and collected P50,000,00 from

used as basis for his disqualification. Invoking the

ruling in the case of Aguinaldo v. Santos, petitioner
argues that his election on May 8, 1995 is a bar to his
disqualification.

each market stall holder in the Bongabong Public

Market. Also, that certain checks issued to him by the
National Reconciliation and Development Program of
the DILG were never received by the Municipal
Treasurer nor reflected in the books of accounts of the

Garcia, who obtained the highest number of votes next

to Reyes, intervened, contending that because Reyes
was disqualified, he was entitled to be proclaimed
mayor. The Comelec en banc denied Garcias prayer.

same officer; and that he took 27 heads of cattle from

beneficiaries

of

cattle

dispersal

program.

The

Sangguniang Panlalawigan found petitioner guilty of

ISSUES:

the charges and ordered his removal from office.

1. WON the decision of the Sangguniang Panlalawigan
Reyes filed a petition for certiorari, prohibition and
injunction with the RTC of Oriental Mindoro. Later, the

is not yet final because he has not been served a copy

thereof.

Presiding Officer of the Sangguniang Panlalawigan

issued an order for Reyes to vacate the position of
mayor and to turn over the office to the incumbent vice
mayor but he refused to accept the service of the

2.

WON

petitioners

the administrative charges

reelection
against

him

rendered
moot

and

academic

order.

3.

WON

the candidate who

obtains

the

second

highest number of votes may not be proclaimed winner

Consequently, to arrest the course of the principal

in case the winning candidate is disqualified.

action

during

the

pendency

of

the

certiorari

proceedings, there must be a restraining order or a writ

of preliminary injunction from the appellate court
HELD:

directed to the lower court.

In the case at bar,

although a temporary restraining order was issued by

1. No. The failure of the Sangguniang Panlalawigan to

the Regional Trial Court, no preliminary injunction was

deliver a copy of its decision was due to the refusal of

subsequently issued. The temporary restraining order

petitioner and his counsel to receive the decision.

issued expired after 20 days. From that moment on,

Repeated attempts had been made to serve the

there was no more legal barrier to the service of the

decision on Reyes personally and by registered mail,

decision upon petitioner.

but

Reyes

refused

to

receive

the

decision. If

judgment or decision is not delivered to a party for

reasons

attributable

to

him,

service

is

deemed

2. No. Petitioner invokes the ruling in Aguinaldo v.

completed and the judgment or decision will be

COMELEC,

in

which

it

was

held

that

considered validly served as long as it can be shown

public official could not be removed for misconduct

that the attempt to deliver it to him would be valid

committed during a prior term and that his reelection

were it not for his or his counsel's refusal to receive it.

operated as a condonation of the officers previous

Reyess refusal to receive the decision may, therefore,

misconduct to the extent of cutting off the right to

be construed as a waiver on his part to have a copy of

remove him therefor. But that was because in that

the decision.

case, before the petition questioning the validity of

the administrative decision removing petitioner could

Petitioner was given sufficient notice of the decision.

be decided, the term of office during which the alleged

Rather than resist the service, he should have received

misconduct was committed expired. Removal cannot

the decision and taken an appeal to the Office of the

extend beyond the term during which the alleged

President in accordance with R.A. No. 7160 Section 67.

misconduct was committed. If a public official is not

But petitioner did not do so. Accordingly, the decision

removed before his term of office expires, he can no

became final 30 days after the first service upon

longer be removed if he is thereafter reelected for

petitioner. Thus, when the elections were held the

another term. This is the rationale for the ruling in the

decision of the Sangguniang Panlalawigan had already

two Aguinaldo cases.

become final and executory. The filing of a petition for

certiorari

with

the

RTC

did

not

prevent

The case at bar is the very opposite of those cases.

the administrative decision from attaining finality. An

Here, although petitioner Reyes brought an action to

original action of certiorari is an independent action

question the decision in the administrative case, the

and does not interrupt the course of the principal

temporary restraining order issued in the action he

action nor the running of the reglementary period

brought lapsed, with the result that the decision was

involved in the proceeding.

served on petitioner and it thereafter became final on

April 3, 1995, because petitioner failed to appeal to the

would

have

Office of the President. He was thus validly removed

prepared

from office and, pursuant to 40 (b) of the Local

circumstances. The votes cast for Reyes are presumed

Government Code, he was disqualified from running for

to have been cast in the belief that Reyes was qualified

reelection.

and for that reason cannot be treated as stray, void, or

to

substantially
extrapolate

meaningless. The

changed.
the

subsequent

results

finding

We

are

not

under

the

that

he

is

It is noteworthy that at the time the Aguinaldo cases

disqualified cannot retroact to the date of the elections

were decided there was no provision similar to 40 (b)

so as to invalidate the votes cast for him.

which disqualifies any person from running for any

Rule 13, 3 and 7 of the Rules of Court provide for

the service of final orders and judgments
either personally or by mail. Personal service is
completed upon actual or constructive delivery, which
may be made by delivering a copy personally to the
party or his attorney, or by leaving it in his office with a
person having charge thereof, or at his residence, if his
office is not known. Hence service was completed
when the decision was served upon petitioners
counsel in his office in Manila on March 3, 1995.

elective position on

the

ground

that

he

has been

removed as a result of anadministrative case.

The

Local Government Code of 1991 (R.A. No. 7160) could

not be given retroactive effect.

Indeed, it appears that petitioner was given sufficient

opportunity to file his answer. He failed to do so.
Nonetheless, he was told that the complainant would
be presenting his evidence and that he (petitioner)
would then have the opportunity to cross-examine the
witnesses. But on the date set, he failed to appear. He
would say later that this was because he had filed a
motion for postponement and was awaiting a ruling
thereon.

This only betrays the patternof delay he

employed to render the case against him moot by

his election.

In addition, as the secretary of the Sangguniang

Panlalawigan certified, service by registered mail was
also made on petitioner Reyes. Although the mail
containing the decision was not claimed by him,
service was deemed completed five days after the last
notice to him on March 27, 1995.

If a judgment or decision is not delivered to a party for

reasons

attributable

to

him,

service

is

deemed

completed and the judgment or decision will be

considered validly served as long as it can be shown

3.

The candidate who

obtains

the

second

highest number of votes may not be proclaimed winner

in

case

the

winning candidate is

disqualified. To

simplistically assume that the second placer would

have received the other votes would be to substitute
our judgment for the mind of the voter. The second
placer is just that, a second placer.

He lost the

elections. He was repudiated by either a majority or

plurality of voters. He could not be considered the first
among qualified candidates because in a field which
excludes the disqualified candidate, the conditions

that the attempt to deliver it to him would be valid

were it not for his or his counsels refusal to receive it.

Indeed that petitioners counsel knew that a decision in

the administrative case had been rendered is evident
in his effort to bargain with the counsel for the
Sangguniang Panlalawigan not to have the decision
served upon him and his client while their petition for
certiorari in the Regional Trial Court was pending. His
refusal to receive the decision may, therefore, be
construed as a waiver on his part to have a copy of the
decision.

10

The purpose of the rules on service is to make sure

that the party being served with the pleading, order or
judgment is duly informed of the same so that he can
take steps to protect his interests, i.e., enable a party
to file an appeal or apply for other appropriate reliefs
before the decision becomes final.

In

practice,

service

means

the

delivery

or

communication of a pleading, notice or other papers in

a case to the opposite party so as to charge him with
receipt of it, and subject him to its legal effect.

In the case at bar, petitioner was given sufficient notice

of the decision. Prudence required that, rather than

- A retainer agreement was entered into which

provided that Atty. Cornago and the law firm shall
receive
P50,000 as acceptance fee and 18% of the value of
the property subject matter of the case which is
P214 Million.
- The province had already paid P7,380,410.31 as
attorneys fees when the COA disallowed further
disbursements for lack of the requisite prior written
conformity and acquiescence of the Sol Gen and the
written concurrence of the COA as required by COA
Circular No. 86-255.
- An administrative complaint was then filed against
Gov. Salalima, Vice Gov. Azaa, and other Albay
Sangguniang Panlalawigan Members relative to the
questioned retainer contract and the disbursement
of public funds in payment thereof.

resist the service, he should have received the decision

and taken an appeal to the Office of the President in
accordance with R.A. No. 7160, 67. But petitioner did
not do so. Accordingly, the decision became final on
April 2, 1995, 30 days after the first service upon

Issue: WON respondents have incurred administrative

liability in entering into the retainer agreement with
Atty. Cornago and the Cortes & Reyna Law Firm and in
making payments pursuant to said agreement

petitioner

SALALIMA VS. GUINGONA

Held: YES. In hiring private lawyers to represent the

Province of Albay, respondents exceeded their
authority and violated a provision of the LGC and a
Supreme Court doctrine.
Moreover, the entire
transaction was attended by irregularities.

Facts:
- NPC filed a case against the Province of Albay
questioning the validity of the auction sale, which the

Ratio:

Province conducted because of NPCs failure to pay

real property taxes assessed.
- The Albay Sangguniang Panlalawigan, through a
resolution, authorized respondent Governor to engage
the services of a Manila-based law firm (Cortes &
Reyna Law Firm) to handle the case against NPC.
Later, the Province also engaged the services of Atty.
Cornago. This is despite the availability of the
Provincial Legal Officer, Atty. Ricafort, who already
filed the Provinces comment on the NPC petition.

Sec. 481 LGC: requires the appointment of a

legal officer to represent the LGU in all civil
actions and specal proceedings wherein the
LGU or any official thereof, in his official
capacity is a party
o EXCEPTION: In actions or proceedings where a
component city or municipality is a party
adverse to the provincial government or to
another component city or municipality, a
special legal officer may be employed to
represent the adverse party
Municipality of Bocaue, et al. v. Manotok:
LGUs cannot be represented by private
lawyers and it is solely the Provincial Fiscal
who can rightfully represent them
Attendant Irregularities:

11

o
o

o
o

No prior written approval of the Sol Gen and

COA before the disbursements were made
The resolution passed by the Sanggunian only
authorized the Governor to sign a retainer
contract with the Cortes & Reyna Law Firm and
yet he also signed with Atty. Cornago, a
different entity
The Province paid the Cortes & Reyna Law Firm
despite the fact that it didnt appear as counsel
for the Province in the SC case
Considering the standing of both Atty. Cornago
the Cortes & Reyna Law Firm, the P38.5 Million
attorneys fees is unconscionable and violative
of (a) COA Circular No. 85-55-A prohibiting
irregular,
unnecessary,
excessive
or
extravagant expenditures or uses of funds; and
(b) Sec. 3 (e) and (g) of the Anti-Graft and
Corrupt Practices Act.

*** However, it was held that respondents could no

longer be subject to disciplinary action for such
administrative misconduct as it was committed during
a prior term.

Garcia v. Mojica
Posted on October 3, 2012
G.R. No. 139043
September 10, 1999
Facts:
On May 7, 1998, petitioner, in his capacity as Cebu City
mayor, signed a contract with F.E. Zuellig for the supply
of asphalt to the city. The contract covers the period
1998-2001, which was to commence on September
1998 upon F.E. Zuelligs first delivery. Sometime in
March 1999, news reports came out regarding the
alleged anomalous purchase of asphalt by Cebu City,
through the contract signed by petitioner. This
prompted the Office of the Ombudsman (Visayas) to
conduct an inquiry into the matter.
Respondent Jesus Rodrigo T. Tagaan, special
prosecution officer of the Office of the Ombudsman,
was assigned to conduct the inquiry, docketed as INQVIS-99-0132. After investigation, he recommended that
the said inquiry be upgraded to criminal and
administrative cases against petitioner and the other
city officials involved. Respondent Arturo C. Mojica,
Deputy Ombudsman for the Visayas, approved this
recommendation
Issues:
1. Whether Garcia may be held administratively liable.
2. Whether the Ombudsman was stripped of its powers
by virtue of the Local Government Code.
Held:
1. No. As previously held, a reelected local official
may not be held administratively accountable for

misconduct committed during his prior term of office.

The rationale is that when the electorate put him back
into office, it is presumed that it did so with full
knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still
reelects him, then such is considered a condonation of
his past misdeeds.
However, in the present case, respondents point out
that the contract entered into by petitioner with F.E.
Zuellig was signed just 4 days before the date of the
elections. It was not made an issue during the election,
and so the electorate could not be said to have voted
for petitioner with knowledge of this particular aspect
of his life and character.
Petitioner can no longer be held administratively liable
for an act done during his previous term. The
agreement between petitioner and F.E. Zuellig was
perfected on the date the contract was signed, during
petitioners prior term. At that moment, petitioner
already acceded to the terms of the contract, including
stipulations now alleged to be prejudicial to the city
government. Thus, any culpability petitioner may have
in signing the contract already became extant on the
day the contract was signed. It hardly matters that the
deliveries under the contract are supposed to have
been made months later.
While petitioner can no longer be held administratively
liable for signing the contract with F. E. Zuellig, this
should not prejudice the filing of any case, other than
administrative, against petitioner. The ruling does not
mean the total exoneration of petitioners wrongdoing,
if any, that might have been committed in signing the
subject contract. The ruling is now limited to the
question of his administrative liability therefore, and it
is our considered view that he may not.
2. No. There is nothing in the LGC to indicate that it has
repealed, whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act. The two statutes on
the specific matter in question are not so inconsistent,
let alone irreconcilable, as to compel us to only uphold
one and strike down the other. The decision of the
Ombudsman (6 month suspension) will prevail over the
LGC (60day suspension) if the evidence of guilt is
strong. The power to preventively suspend is available
not only to the Ombudsman but also to the Deputy
Ombudsman.

G.R. No. 189171, June 03, 2014

EDILBERTO L. BARCELONA, Petitioner, v. DAN JOEL
LIM AND RICHARD TAN, Respondents.
DECISION
SERENO, C.J.:

12

This case involves a Petition for Review

on Certiorari 1 filed under Rule 45 of the 1997 Rules of
Civil Procedure, praying for the reversal of the
Decision2 of the Court of Appeals (CA) dated 26
September 2008, and its subsequent Resolution3 dated
26 August 2009. Both dismissed the Petition for
Review4filed by Edilberto L. Barcelona (petitioner) for
lack of merit.
The CA affirmed the Civil Service Commission (CSC)
Resolutions dated 18 December 20065 and 28 August
2007,6 which in turn affirmed the Order dated 27
September 2000 issued by the Chairperson of the
National Labor Relations Commission (NLRC), Roy V.
Seeres (Chairperson Seeres or simply Chairperson).
The Order barred petitioner, who was then the officer
incharge of the Public Assistance Center of the NLRC,
from entering its premises a month before the
Efficiency and Integrity Board (Board) could investigate
the administrative case for dishonesty and grave
misconduct filed against him.
The records disclose that on 14 August 2000,
respondent businessman Dan Joel Lim (Lim), the owner
of Top Gun Billiards, filed a Sinumpaang Salaysay
(sworn statement) with the Criminal Intelligence
Division of the National Bureau of Investigation (NBI).
Lim claimed as follows: (1) his employees, Arnel E.
Ditan and Pilipino Ubante, were influenced by
petitioner to file a labor complaint against Lim; 7 and (2)
petitioner, then an NLRC officer, demanded ?20,000 for
the settlement of the labor case filed against Lim. On
the strength of this sworn statement, the NBI organized
an entrapment operation against petitioner.
On 16 August 2000, Lim informed the NBI that
petitioner would drop by Top Gun Billiards around
seven oclock in the evening, expecting to receive the ?
20,000 petitioner was demanding from him; otherwise,
petitioner would order that Top Gun Billiards be closed.
After Lim handed him the marked bills, petitioner
began counting them. The latter was arrested by the
NBI right when he was about to put the money in his
bag.
After being duly informed of his constitutional rights,
petitioner was brought to the NBI office where he was
booked, photographed, and fingerprinted. Thereafter,
he underwent ultraviolet light examination. The
Certification dated 16 August 2000 of the NBIForensic
Chemistry Division stated that his hands showed the
presence [of] Yellow Fluorescent Specks and
Smudges,8 and that[s]imilar examinations made on
the money bills showed the presence of yellow
fluorescent specks and smudges x x x.9
In a letter to the City Prosecutor of Manila, NBI Director
Federico M. Opinion, Jr. recommended the prosecution
of petitioner for robbery under Article 293 of the
Revised Penal Code (RPC) and violation of Republic Act
No. (R.A.) 3019 or the AntiGraft and Corrupt Practices
Act. The NBI filed the Complaint. Finding probable
cause, the City Prosecutor filed with the Regional Trial
Court (RTC) of Manila on 18 August 2000 an
Information against petitioner for the crime of robbery.

It was further discovered that while the inquest papers

were being prepared by the NBI, Richard Tan (Tan),
owner of Tai Hing Glass Supply, had filed a similar
extortion Complaint against petitioner. The latter
supposedly asked him to pay ?15,000 in exchange for
the settlement of a fabricated case.10
Reports of the circumstances leading to the arrest and
filing of the Complaints against petitioner were
submitted by Tan and Lim to Chairperson Seeres. On
17 August 2000, copies of the documentary
evidence11 against petitioner were likewise endorsed to
the Chairperson.12
Finding a prima facie case against petitioner,
Chairperson Seeres issued Administrative Order No.
902 Series of 2000 on 1 September 2000, formally
charging him with dishonesty and grave misconduct.
The Order created a panel (the Board) to look into the
present case; require petitioner to file an answer to the
charges; conduct an investigation; and thereafter
submit its report/recommendation.13 The Order also
placed petitioner under a 90day preventive
suspension upon receipt thereof.
The Board issued a Summons dated 19 September
2000 directing petitioner to answer the charges against
him. Both the Order and the Summons were served on
him, but he refused to receive them.14 He never filed
an Answer.
Lim, Tan, and the NBI agents involved in the
entrapment operations appeared at the preliminary
investigation conducted by the Board on 28 September
2000 in order to confirm their accusations against
petitioner.
On 23 October 2000, the Board conducted a hearing
attended by petitioner with three of his lawyers. He
manifested therein that he was not subjecting himself
to its jurisdiction.15 Thus, he left without receiving
copies of the Order and other documents pertinent to
the case.16
The Board resolved the administrative case ex parte. It
found that petitioner had been caught redhanded in
the entrapment operation. His guilt having been
substantially established,17 the Board in its 31 October
2000 Report/Recommendation18 found him guilty of
dishonesty and grave misconduct. Upon approval of
this recommendation by NLRC Chairperson Seeres on
14 November 2000, petitioner was dismissed from
service.
A copy of the Boards Decision was received by
petitioner on 22 November 2000. On 1 December
2000, he filed a Motion for Extension of Time Within
Which to File the Proper Responsive Pleading, but it
was denied.19
Petitioner appealed to the CSC. In his Appeal
Memorandum,20 he presented his side of the story. He
claimed to have visited Lims establishment to play
billiards every now and then. Before going home, he
would supposedly drop by the place, which was a mere
5 to 10minute tricycle ride away from where he

13

lived.21 When Lims employees discovered that

petitioner worked for the NLRC, they told him of their
employers labor law violations.22 Thus, petitioner
assisted them in filing a case against Lim and later
scheduled the case for a conference on 10 August
2000.
Two days before the scheduled conference, petitioner
was informed by one of the employees that Lim wanted
to speak with him. Lim supposedly offered petitioner
money to drop the labor case filed against the former.
According to petitioner, this offer was flatly
rejected.23
The next day, when petitioner went to Lims
establishment to play billiards, a billiard hustler by the
name of Abel Batirzal (hustler) informed him that Lim
required everyone playing in the establishment to lay a
wager on the games they played.24 Since he
abhorred gambling, petitioner decided to discourage
the hustler by raising the amount the latter proposed.25
Petitioner lost to the hustler. As the former was about
to leave the establishment, he discovered that his
cellular phone and pack of Philip Morris cigarettes were
no longer where he left them. The security guard on
duty informed him that a certain Ian Gumban had
stolen the items.26
Petitioner went straight to the Western Police District
Station and filed a Complaint for theft, billiard hustling,
syndicated gambling, swindling, and violation of city
ordinances against Lim and three of the latters
employees or friends.27
A day after the foregoing incident, or on 10 August
2000, neither Lim nor his employees appeared at the
scheduled conference. On the evening of the same
day, petitioner went to Lims establishment to check on
the employees. There they told him to consider their
Complaint withdrawn, since Lim had already decided to
settle the case with them. Accordingly, the case was
dropped from the NLRCs calendar.28
Petitioner claims that on 16 August 2000, the day of
the alleged entrapment, he received a call from Lim.
The person who had stolen petitioners cellphone was
supposedly willing to return it at seven that evening at
Lims billiards hall.29

agents appeared and arrested petitioner who recalls

the incident as follows:chanRoblesvirtualLawlibrary
x x x [W]hile trying to retrieve the unduly incriminating
wad of money to throw it back to Mr. Lim, about five or
seven burly men accosted petitioner without properly
identifying themselves and with strongarm tactics,
handcuffed him over his vehement protestations. One
of the burly men even pointed his gun at petitioners
face as he and his companions wrestled petitioner to a
car. x x x.32
With respect to Tan, petitioner claims that the latter
never demanded or received any sum of money from
him. Allegedly, Tan was only displeased with
petitioners active assistance to one of Tans aggrieved
employees.33
Petitioner further claims that even before Chairperson
Seeres formally charged him with dishonesty and
grave misconduct, the former had already filed an
urgent request for an emergency leave of absence
because of the alarming threats being made against
him and the members of his family.34
Petitioner asked the CSC to nullify the 27 September
2000 Order of Chairperson Seeres. The Order barred
petitioner from entering the NLRC premises a month
before the hearing conducted by the Board. He then
questioned its impartiality. As proof of his allegation,
he made much of the fact that the Board denied his
Motion for Extension of Time Within Which to File a
Proper Responsive Pleading.35
Six years after petitioner had filed his Appeal
Memorandum, the CSC dismissed it. The dispositive
portion of its Resolution36 dated 18 December 2006
reads:chanRoblesvirtualLawlibrary
WHEREFORE, the appeal of Edilberto S. (sic)
Barcelona is hereby DISMISSED. Accordingly, the
Decision dated November 14, 2000 of Roy R. Seneres,
[Chairperson,] (NLRC) finding him guilty of Dishonesty
and Grave Misconduct and imposing upon him the
penalty of dismissal from the service with the
accessory penalties of disqualification from reentering
government service, forfeiture of retirement benefits
and bar from taking any civil service examinations is
hereby AFFIRMED.37

When petitioner arrived, he saw Lim and one of the

latters employees. Lim approached petitioner and
informed him that the thief could no longer return the
phone. The thief had allegedly decided to just pay the
value of the phone and entrust the money to Lim. The
latter tried to give the money to petitioner and urged
him to count it, as the former was not sure how much
the thief had given. Petitioner supposedly refused to
receive and count the cash and, instead, insisted that
Lim arrange a meeting with the thief.30

Petitioner filed a Motion for Reconsideration on 15

January 2007.38 He questioned the validity of his
dismissal by asserting that before its implementation,
the NLRC had the legal duty of obtaining its
confirmation by the Department of Labor and
Employment (Labor) Secretary.39

Because petitioner would not take the money, Lim

inserted the wad of cash into the open pocket of the
formers shoulder bag.31 Just when petitioner was about
to pull out the money and throw it back to Lim, the NBI

Petitioner filed a Petition for Review, but it was

dismissed by the CA in the assailed Decision dated 26
September 2008.41

On 28 August 2007, petitioners Motion for

Reconsideration was denied by the CSC through a
Resolution.40

14

A Motion for Reconsideration with Motion for Voluntary

Inhibition of Honorable Justice Vicente S.E. Veloso
(Justice Veloso)42 was then filed by petitioner. The latter
cited the following reasons for the prayer for
inhibition:chanRoblesvirtualLawlibrary
1) Honorable Justice Veloso was a Commissioner of
public respondent NLRC at the time of the subject
incident; and
2) The undersigned counsel, eldest son of petitioner,
just recently resigned from the law firm where the
daughter of Justice Veloso is working.43
Justice Veloso, in a Resolution44 dated 27 February
2009, stated that while the grounds invoked by
petitioner did not constitute valid bases for an
inhibition, the former would voluntarily inhibit to
assuage petitioner in whatever fears he may have
over the CAs handling of the Motion for
Reconsideration.
Thereafter, the CA issued the assailed
Resolution45 dated 26 August 2009 denying petitioners
Motion for Reconsideration. In spite of his voluntary
inhibition, Justice Veloso still signed the herein
questioned Resolution to signify his concurrence.
Hence, this Petition praying for the reversal of the
Decision and Resolution of the appellate court and the
dismissal of the administrative Complaint filed against
petitioner.46
This Court required respondents Lim and Tan to file
their respective Comments, but neither of them
complied. Since copies of the Resolution ordering them
to Comment were personally served upon them, the
Court resolved to consider them to have waived their
right to comment on the Petition.47
Petitioner comes before this Court raising the following
arguments:chanRoblesvirtualLawlibrary
1.

The CA decided a question of substance not

in accord with the applicable law and
jurisprudence when
it:chanRoblesvirtualLawlibrary
a.

b.

c.

Denied petitioners Motion for

Reconsideration with the participation
of Justice Veloso, who had earlier
voluntarily inhibited himself from the
case.
Ruled that petitioner was not denied
due process of law in spite of
overwhelming proof that the NLRC
chairperson failed to act with
impartiality in deciding petitioners
case.
Ruled that petitioners appeal to the
CSC had not been filed on time, even

though the commission itself did not

question the timeliness of that.
d.

2.

Ruled that the findings of the CSC were

supported by evidence.

The CA, like the CSC, failed to address all the

issues presented by petitioner when it chose to
keep silent on the following
issues:chanRoblesvirtualLawlibrary
a.

The denial of the right of petitioner to

the speedy disposition of his case; and

b.

The failure of the disciplining authority

to obtain the confirmation by the
Department head of the formers
decision to dismiss petitioner from
service.48

We reduce the issues to the

following:chanRoblesvirtualLawlibrary
I
Whether petitioner was denied due process of law;
II
Whether the factual findings of the CSC are supported
by evidence;
III
Whether the CA had the authority to review matters
not assigned by the parties as issues;
IV
Whether the right of petitioner to the speedy
disposition of his case has been violated by the CSC;
and
V
Whether the NLRC violated the Civil Service Rules
provision, which allows the execution of a penalty of
removal decreed by a bureau or office head, pending
appeal thereof to the CSC, only when the penalty has
been confirmed by the Secretary of the department
concerned.
Petitioner was not denied due process of law.
Petitioner claims he was denied due process of law due
to the partiality of Chairperson Seeres, the Board, the
CSC, and the CA.
Considering the many complaints of petitioner, we
deem it best to present an exhaustive outline of his

15

entire evidence therefor. Below are several

circumstances he cites to prove that he was not
afforded the right to be heard by an independent and
impartial tribunal.
According to petitioner, Chairperson Seeres served
not only as the formers accuser, but also as judge and
executioner.49 The Chairpersons partiality was
supposedly demonstrated by the following
acts:chanRoblesvirtualLawlibrary
1.

On 10 November 2000, petitioner and his two

sons allegedly approached and asked
Chairperson Seeres why he was persecuting
petitioner. The Chairperson supposedly
replied:Wala akong pakialam. Pasensya kayo.
Tapos na ang tatay ninyo!50

2.

Chairperson Seeres issued defamatory press

releases to the media announcing the
preventive suspension of petitioner and
depicting the latter as a corrupt government
official. The Chairperson allegedly took
advantage of the situation of petitioner in
support of the formers then prospective
political career, to
wit:chanRoblesvirtualLawlibrary
x x x [A]t the expense of petitioner, [he] took
advantage of the opportunity to project himself
as a graft buster to further his sagging political
career and burning senatorial ambitions by
immediately issuing press releases and causing
the malicious publication of the petitioners
preventive suspension without affording the
latter due process of law.51

3.

4.

Lim never filed a written complaint against

petitioner as required by Section 8 of the Civil
Service Rules and, consequently, the latter was
not given the chance to file a counteraffidavit
or comment on the written Complaint as
mandated by Section 11 of the Civil Service
Rules.
No preliminary investigation was conducted as
required by Section 12 of the Civil Service
Rules.

5.

Chairperson Seeres failed to serve the formal

charge to petitioner in accordance with Section
16 of the Uniform Rules on Administrative
Cases in the Civil Service (Civil Service Rules). 52

6.

The Order dated 1 September 2000, which

immediately placed petitioner under a 90day
preventive suspension, supposedly violated the
requirement in Section 19 of the Civil Service
Rules that an order of preventive suspension
be issued only upon service of the formal
charge.

7.

The Board created by Seeres to investigate

the case denied the Motion for Extension of
Time filed by petitioner, in order to ensure that
the latter would no longer be able to return to
work.

As for the Board, its lack of and glaring absence of

impartiality and objectivity was supposedly shown by
the following:53
1.

A substantial portion of the

Report/Recommendation of the Board shows
that it delved into petitioners expression of
protest against the Chairpersons unfair
treatment, and thereby reinforced petitioners
apprehension that the case would not be
resolved on its merits.

2.

The denial of petitioners Motion for Extension

of Time Within Which to File the Proper
Responsive Pleading dated 1 December 2000
was allegedly unjust and groundless.

With respect to the CSC, petitioner claims that it

curiously amended Section 43(2) of the Civil Service
Rules only three weeks after he had filed his Motion for
Reconsideration of the Resolution denying his appeal. 54
Lastly, petitioner bewails the supposed haphazard
manner in which the CA disposed of his claim that he
had been denied due process of law. He claimed that it
simply dismissed the issue through a onesentence
ruling, which reads:chanRoblesvirtualLawlibrary
On the alleged failure of the NLRC to observe
impartiality, suffice it to say that petitioner failed to
present proof to substantiate his selfserving
allegations.55
In the eyes of petitioner, it would appear that every
agency of the government that had a hand in this case
was, at his expense, either motivated by personal bias
or driven by the desire to advance its members
political or professional careers in the government.
Petitioners claims are without merit.
Contrary to the assertions of petitioner, Chairperson
Seeres did not act as the formers accuser, judge and
executioner.56 To be clear, the accusers of petitioner
were Lim and Tan, while his judge was an independent
Board formed to investigate his case. This Court is
aware that the Board only had the power to
recommend, and that that latters recommendation
was still subject to the approval of the Chairperson.
Still, petitioner cannot claim that he was denied due
process on this basis alone, because the remedy to
appeal to the proper administrative bodythe CSC in
this casewas still made available to him.
Petitioner claims that Sections 8, 11, 12, 16, and 19 of
the Civil Service Rules were violated by Chairperson

16

Seeres. Petitioner misses the point that strict

compliance with the rules of procedure in
administrative cases is not required by law.
Administrative rules of procedure should be construed
liberally in order to promote their object as well as to
assist the parties in obtaining a just, speedy and
inexpensive determination of their respective claims
and defenses.57
This Court finds that both Chairperson Seeres and the
Board essentially complied with the procedure laid
down in the Civil Service Rules. Where due process is
present, the administrative decision is generally
sustained.58
The claim of petitioner that he was denied due process
is negated by the circumstances of the case at bar.
The Report/Recommendation of the Board shows that
both complainant and respondent were given the
opportunity to be heard by the Board and to adduce
their respective sets of evidence, which were duly
considered and taken into account in its Decision.

against petitioner. That he submitted no documents for

consideration in the preliminary investigation was his
choice.
According to petitioner, no formal charge was ever filed
against him as mandated by Section 16 of the Civil
Service Rules. He now claims that Chairperson Seeres
had no right to place him under preventive suspension,
because Section 19 of the Civil Service Rules requires
that a formal charge be served on petitioner before an
order of preventive suspension may be issued. The
provision reads:chanRoblesvirtualLawlibrary
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;

Petitioner insists that Lim never filed a written

complaint against him as required by Section 8 of the
Civil Service Rules. Petitioner further complains that he
was not given the chance to file a counter affidavit, a
right provided by Section 11 of the Civil Service Rules.
The records disclose, however, that reports leading to
his arrest and the filing of the Complaint against him
were submitted by Tan and Lim to the Chairperson of
the NLRC. On the basis of the sworn statements
supporting the criminal Complaint against petitioner,
Chairperson Seeres found a prima facie case against
him and issued the Order formally charging him with
dishonesty and grave misconduct.

c. grave misconduct;

Furthermore, the Board gave petitioner the chance to

answer the charges against him when it issued its 19
September 2000 Summons for that very purpose. He
does not deny that he was served a copy of the
Summons, but that he refused to receive it. It was his
choice not to file an answer. After he decided to waive
this right, we cannot now allow him to claim that he
has been deprived of the right to air his side through
an answer or a counteraffidavit.

In lieu of preventive suspension, for the same purpose,

the proper disciplining authority or head of office, may
reassign respondent to other units of the agency
during the formal hearings.

Petitioner further claims that Chairperson Seeres

violated Section 12 of the Civil Service Rules when the
latter dispensed with the requirement of conducting a
preliminary investigation. It is important to note that
this preliminary investigation required by Section 12 of
the Civil Service Rules is not the same as that required
in criminal cases. Section 12 defines a preliminary
investigation of administrative cases in the Civil
Service as an ex parte examination of records and
documents submitted by the complainant and the
person complained of, as well as documents readily
available from other government offices. Petitioner
presents no evidence to prove that either Chairperson
Seeres or the Board failed to examine these records.
In fact, the records show that, on 28 September 2000,
Lim and Tan appeared in the preliminary investigation
conducted by the Board to confirm their sworn
statements and the criminal cases they had filed

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 this case, the Order was the formal charge. It was

served on petitioner, but he refused to receive it. He
claims that on 27 September 2000, or a month before
the hearing conducted by the Board, Chairperson
Seeres barred him from entering the NLRC premises.
Petitioner was thereby denied access to evidence and
witnesses that could support his case.59 But, as
revealed by Section 19, Chairperson Seeres had the
right to issue an Order of preventive suspension
pending investigation by the Board, because petitioner
was being charged with dishonesty and grave
misconduct.
Moreover, the Order of Chairperson Seeres preventing
petitioner from entering the latters office was also
valid under Section 19. This Order was meant to
preclude petitioner from possibly exerting undue
influence or pressure on the witnesses against him or
to prevent him from tampering with documentary
evidence on file with his office. This preventive
measure is sanctioned by law.

17

As established by the facts, petitioner was given the

opportunity to be heard and to adduce his evidence.
This opportunity was enough for one to comply with
the requirements of due process in an administrative
case. The formalities usually attendant in court
hearings need not be present in an administrative
investigation, as long as the parties are heard and
given the opportunity to adduce their respective sets of
evidence.60
As regards the charge of lack of impartiality, we agree
with the CAs pronouncement that petitioner failed to
substantiate his selfserving allegations. Mere
suspicion of partiality does not suffice.61
Chairperson Seeres released statements to the media
regarding the case of petitioner and allegedly told him
and his children that the Chairperson did not care
about their woes. Assuming this allegation to be true, it
did not necessarily mean that Chairperson Seeres was
incapable of deciding the case without bias. These acts
did not satisfactorily prove the claim that in order to
promote and further his political ambitions, he took
advantage of petitioners situation. As the NLRC
Chairperson, he had the duty to answer the questions
of the media on the status of the cases against graft
and corrupt practices involving government officials
under his commission. Furthermore, his statements to
petitioner and the latters family are not sufficient for
this Court to believe that every one of his acts, in
relation to the case of petitioner, was meant to ensure
the latters downfall at whatever cost.
Similarly, the denial of petitioners Motion for Extension
of Time, does not prove that the tribunal failed to be
impartial.
Petitioner is banking on one incident in which his
Motion was denied. The denial in itself, without any
extrinsic evidence to establish bias, does not prove
that he was denied his right to be judged by an
impartial and independent tribunal. While petitioner
had the right to file a Motion for Extension of Time, he
did not have the right to expect that the Motion would
be granted. Absent any proof that the denial of this
motion was made in grave abuse of discretion
amounting to lack or excess of jurisdiction, the Court
will not interfere with the pronouncement of the quasi
judicial body.
Lastly, the CSC has the power and the authority to
amend the Civil Service Rules whenever it deems the
amendment necessary. The insinuation of petitioner
that this change was made for the sole purpose of
hurting his appeal is a mere product of his imagination.
The CSC is under no obligation to review all the cases
before it and, on the basis thereof, decide whether or
not to amend its internal rules.
We note, though, that the authority of the CSC to
amend the rules does not give it the authority to apply
the new provision retroactively. The consequence of an
illegal retroactive application of a provision is discussed
below.

petitioner is guilty of dishonesty and

grave misconduct is supported by the
evidence.
With respect to the sufficiency of the evidence
supporting the factual findings of the CSC, the CA ruled
as follows:chanRoblesvirtualLawlibrary
Finally, it is wellsettled that findings of fact of quasi
judicial agencies such as the Civil Service Commission
are generally accorded respect and even finality by this
Court and the Supreme Court, if supported by
substantial evidence, in recognition of their expertise
on the specific matters under their consideration.62
Petitioner now claims that the CA did not even bother
to discuss his allegation that the findings of the CSC
were not supported by evidence.63 Unimpressed by the
CA Resolution, he is now asking this Court to review
the factual findings of the CSC.
Believing that the CSC found him guilty based on
the Sinumpaang Salaysay executed by Lim before the
NBI, petitioner insists that this piece of evidence is
insufficient to support the CSCs conclusions. 64He
claims that there is no specific allegation in the sworn
statement of Lim whether petitioner demanded money
from the former; who set the alleged August 16, 2000
meeting at Mr. Lims billiard center; how it was agreed;
and what was the purpose of that meeting.65
Petitioner casts doubt on the veracity of the
statements of Lim, who supposedly filed a report
against him with the NBI a few days after filing a theft
Complaint against him.66 According to petitioner, Lim
should not be believed, because all of the latters
allegations are fueled only by vengefulness.
After claiming that Lims statement should not be
trusted because of illmotive,67 petitioner now
questions the motives of the CSC and the NBI.
Anent the reliance of the CSC on the Sinumpaang
Salaysay, petitioner
decries:chanRoblesvirtualLawlibrary
To an unprejudiced, reasonable mind, the statement of
Mr. Lim is not sufficient evidence to pin down petitioner
for such a serious offense as Dishonesty and Grave
Misconduct. The NLRC read more into the document
and put words into the mouth of Mr. Lim.
Unfortunately, the CSC blindly affirmed the NLRCs
findings just to dispose of the case after unreasonably
sitting on it for more than six (6) long years.68
With respect to the NBI agents, petitioner harps on
their eagerness to believe Lims Complaint without
even bothering to investigate. Petitioner explains his
point:chanRoblesvirtualLawlibrary
[T]he NBI agents who conducted the alleged
entrapment operation were motivated by the desire to
record an accomplishment and to obtain

The finding of the CSC that

18

commendatory results due to the highly competitive

police function and law enforcement activities.69

to form a complete picture of the incidents that led to

the ultimate act of extortion.

We affirm the CAs findings.

As defined in the landmark case Ang Tibay v. Court of

Industrial Relations,75 all that is needed to support an
administrative finding of fact is substantial evidence,
which is defined as such relevant evidence as a
reasonable mind might accept as adequate to support
a conclusion. The evidence presented in the present
case is more than enough to support the conclusion
reached.

First, except for his accusations, petitioner presents no

proof that the CSC blindly affirmed the NLRCs ruling
just to get rid of the case. A reading of the Resolutions
of the CSC reveals otherwise. They thoroughly
discussed the factual circumstances surrounding this
case, the evidence, and why and how the conclusion
was reached. In order to overcome the validity of these
Resolutions, petitioner must present evidence to prove
that the evidence relied on by the CSC was
unsubstantial.
In attempting to prove that the evidence presented
was insufficient to prove his guilt, petitioner asks this
Court to focus on the inadequacy of Lims Sinumpaang
Salaysay. Contrary to these assertions, however, the
following pieces of evidencein addition to Lims
sworn statementwere considered by the CSC in
resolving petitioners
appeal:chanRoblesvirtualLawlibrary
1.

The sworn statement of Tan, who appeared in

the preliminary investigation conducted by the
Board to confirm that he had filed a similar
extortion Complaint against petitioner;70

2.

The Report and the evidence presented by NBI

Special Investigator Marvin E. de Jemil, who
appeared before the Board to confirm the
contents of his Report, findings, and evidence
against petitioner in support of the
administrative charges filed against the latter;
and

3.

The statement of the arresting officers who

apprehended petitioner in the entrapment
operation, and who also appeared in the
continuing investigation to affirm the contents
of their Joint Affidavit of Arrest.71

Factual findings of administrative bodies like the CSC

are binding on this Court, unless these findings are not
supported by substantial evidence.72 In this case, we
rule that the findings of fact and conclusions of the CSC
have passed the test of substantiality. It is sufficient
that administrative findings of fact are supported by
the evidence on record; or, stated negatively, it is
sufficient that findings of fact are not shown to be
unsupported by evidence.73 The absence of substantial
evidence is not shown by stressing that there is
contrary evidence on record, whether direct or
circumstantial.74
All the pieces of evidence presented before the CSC
point to the guilt of petitioner. Several persons, both
private individuals and law enforcers, came forward to
testify and present evidence to prove the allegations
against him. In fact, each testimony corroborated the
testimonies of the others, effectively allowing the CSC

Where the findings of fact of a quasijudicial body are

supported by substantial evidence, these findings are
conclusive and binding on the appellate court. 76 Thus,
the CA did not err in ruling that the CSC had committed
no error in finding that petitioner was guilty of
dishonesty and grave misconduct.
In the case at bar, petitioner accuses the NBI agents of
being driven by illmotive. In the absence of credible
evidence, the presumption of regularity in the
performance of their duties prevails over his
unsubstantiated and selfserving assertions, to
wit:chanRoblesvirtualLawlibrary
Between the naked assertions of accusedappellant
and the story recounted by the NARCOM agents,
jurisprudence dictates that the latter is to be given
more weight. Aside from having in his favor the
presumption of regular performance of duty, we find as
the court a quo did that the testimony of Lt. Cantos is
more credible, being fully and convincingly
corroborated, as opposed to that of accusedappellant.
Besides, no improper motive to falsely accuse
appellant could be imputed to him. In the absence of
proof of such motive to falsely impute a serious crime
against appellant, the presumption of regularity in the
performance of official duty as well as the findings of
the trial court on the credibility of witnesses must
prevail over the selfserving and uncorroborated claim
of having been framed up. 77
This rule holds true for the present case. Not only do
the NBI agents have in their favor the presumption of
regularity in the performance of their duties; their
statements are credible and corroborated as well. After
being caught redhanded, petitioner needs extrinsic
evidence to back up his allegations to prove that the
NBI agents had an ulterior motive to falsely impute the
crime to him.
The appellate court has the authority
to review matters that the parties have not
specifically raised or assigned as error.
Petitioner questions the propriety of the following
pronouncement of the CA:chanRoblesvirtualLawlibrary
We likewise note that petitioners appeal to the CSC
was made beyond the reglementary period.
Admittedly, petitioner received the Decision of the
NLRC on 22 November 2000. Petitioners motion for
extension of time within which to file the proper
responsive pleading filed on 1 December 2000 did not

19

stop the running of the period for its finality, and the
Notice of Appeal and Appeal Memorandum were filed
only on 27 December 2000 or one (1) month and five
(5) days from receipt of the Decision. Petitioner
erroneously counted the period within which to appeal
from the date he received the Order denying his
motion for extension to file his responsive pleading. 78
While petitioner does not deny that his appeal to the
CSC was filed beyond the reglementary period, he
argues that the timeliness of his appeal has never been
an issue. He thus claims that only the issues raised by
the parties may be resolved by the Court.
Petitioner is mistaken. An appeal throws the entire case
open for review, viz:chanRoblesvirtualLawlibrary
[A]n appeal, once accepted by this Court, throws the
entire case open to review, and that this Court has the
authority to review matters not specifically raised or
assigned as error by the parties, if their consideration
is necessary in arriving at a just resolution of the
case.79
Petitioner adds that the CA erred in applying technical
rules strictly. According to him, if its strict application of
the rules would tend to frustrate rather than promote
justice, it is within this Courts power to suspend the
rules or except a particular case from their operation.80
We agree with petitioners claim that rules of procedure
are established to secure substantial justice, and that
technical requirements may be dispensed with in
meritorious cases. However, we do not see how the CA,
in deciding the case at bar, could have overlooked this
policy. Although it took notice of the failure of
petitioner to file his appeal with the CSC on time, and
perhaps used this failure as a supporting argument, it
did not dismiss the Petition on that sole ground. In fact,
a perusal of the CA Decision now in question will reveal
that the appellate court took cognizance of the case
and adequately discussed the pertinent issues raised
by petitioner.
No violation of the right of petitioner
to the speedy disposition of his case.
Petitioner filed his Notice of Appeal and Appeal
Memorandum with the CSC on 27 December 2000,81but
it only issued its Resolution on 18 December 2006.
According to petitioner, he sees no justifiable reason
for the sixyear delay in the resolution of his appeal
before the CSC.82 He is now asking this Court to
rectify the wrong committed against him and his
family by absolving him of the administrative
charges.83
Section 16, Rule III of the 1987 Philippine Constitution,
reads:chanRoblesvirtualLawlibrary
Sec. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi
judicial, or administrative bodies.

The right to a speedy disposition of cases is

guaranteed by the Constitution. The concept of
speedy disposition is flexible. The fact that it took the
CSC six years to resolve the appeal of petitioner does
not, by itself, automatically prove that he was denied
his right to the speedy disposition of his case. After all,
a mere mathematical reckoning of the time involved is
not sufficient, as the facts and circumstances peculiar
to the case must also be considered.84
Caballero v. Alfonso, Jr.,85 laid down the guidelines for
determining the applicability of Section 16, Rule III, to
wit:chanRoblesvirtualLawlibrary
In the determination of whether or not the right to a
speedy trial has been violated, certain factors may
be considered and balanced against each other. These
are length of delay, reason for the delay, assertion of
the right or failure to assert it, and prejudice caused by
the delay. x x x.
The CSC maintains that [p]etitioner failed to assert
such right before the proceedings in the CSC and, even
assuming that there was delay in resolution of his
appeal before the CSC, no prejudice was caused to
him.86
Petitioner, on the other hand, insists that the fact that
he made several telephone calls to inquire about the
status of his appeal87 and sent to the Commissioner of
the CSC a letter dated 2 March 2001, informing the
latter that the case had been forwarded to CSCMain
without action of CSCNCR,88 sufficiently proves that
he did not fail to assert his right.
On this particular point, we have to agree with the CSC
that the alleged telephone calls made by petitioner
are selfserving and lack corroborative
evidence.89 Since there is no way of ascertaining
whether or not he actually made these phone calls, this
allegation cannot be given any probative value.
As to the letter petitioner allegedly sent to CSC
Commissioner Jose Erestain, Jr., it is apparent from the
face of the letter that there is no indication at all that
the intended recipient actually received it.
The right to a speedy trial, as well as other rights
conferred by the Constitution or statute, may be
waived except when otherwise expressly provided by
law. Ones right to the speedy disposition of his case
must therefore be asserted. 90 Due to the failure of
petitioner to assert this right, he is considered to have
waived it.
The NLRC did not violate the rule
against the execution of a penalty
of removal pending appeal to the CSC.
According to petitioner, when he filed his Motion for
Reconsideration with the CSC on 15 January 2007,
Section 43 of Rule III of the Civil Service Rules provided
that a penalty of removal from government service
could not be executed pending appeal, unless the

20

Department Secretary concerned confirmed the

imposition of the
penalty,91viz:chanRoblesvirtualLawlibrary
SECTION 43. Filing of Appeals. Decisions of heads of
departments, agencies, provinces, cities, municipalities
and other instrumentalities imposing a penalty
exceeding thirty (30) days suspension or fine in an
amount exceeding thirty days salary, may be appealed
to the Commission Proper within a period of fifteen (15)
days from receipt thereof.
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 head and
finally to the Commission Proper. Pending appeal,
the same shall be executory except where the
penalty is removal, in which case the same shall
be executory only after confirmation by the
Secretary concerned.
A notice of appeal including the appeal memorandum
shall be filed with the appellate authority, copy
furnished the disciplining office. The latter shall submit
the records of the case, which shall be systematically
and chronologically arranged, paged and securely
bound to prevent loss, with its comment, within fifteen
(15) days, to the appellate authority. (Emphasis
supplied)
However, on 7 February 2007, the CSC issued
Resolution No. 070244,92 which amended the
aforementioned provision of the Civil Service Rules.
The pertinent portion of the CSC Resolution
reads:chanRoblesvirtualLawlibrary
Section 43. Filing of Appeals. Decisions of heads of
department, agencies, provinces, cities, municipalities
and other instrumentalities imposing a penalty
exceeding thirty (30) days suspension or fine in an
amount exceeding thirty days salary, may be appealed
to the Commission Proper within a period of fifteen (15)
days from receipt thereof.
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 head and
finally to the Commission Proper. Pending appeal, the
same shall be executory except where the penalty is
removal, in which case the same shall be executory
only after confirmation by the Secretary concerned.
Unless otherwise provided by law, the decision
of the head of an attached agency imposing a
penalty exceeding thirty (30) days suspension or
fine in an amount exceeding thirty days' salary,
demotion in rank or salary or transfer, removal
or dismissal from office is appealable directly to
the Commission Proper within a period of fifteen
(15) days from receipt thereof. Pending appeal,
the penalty imposed shall be executory,
including the penalty of removal from the service
without need for the confirmation by the
department secretary to which the agency is
attached.

A notice of appeal including the appeal memorandum

shall be filed with the appellate authority, copy
furnished the disciplining office. The later shall submit
the records of the case, which shall be systematically
and chronologically arranged, paged and securely
bound to prevent loss, with its comment, within fifteen
(15) days, to the appellate authority. (Emphasis in the
original)
It appears that Section 43 of the Civil Service Rules is
selfcontradicting. While the second paragraph
provides that a penalty of removal shall be executory
only after confirmation by the Secretary concerned,
the third paragraph states: Pending appeal, the
penalty imposed shall be executory, including the
penalty of removal from the service without need for
the confirmation by the department secretary to which
the agency is attached. The CSC should look into the
implication and/or consequence of its amendment of
the rules and should clarify how the newly enacted
paragraph can operate, without conflict, with the
reenacted provisions of the old Section 43.
In any case, even if we were to assume that the new
rules now declare that a penalty of removal shall be
executory pending appeal, without need for
confirmation by the secretary of the Department to
which the agency is attached, this rule cannot and
should not be applied to petitioners case.
Resolution No. 070244 became effective 15 days after
21 March 2007, the day it was published, or a few
months before the CSC denied petitioners Motion for
Reconsideration.
This Court cannot declare that the amendment of the
Civil Service Rules while the case of petitioner was
pending proves the lack of impartiality on the CSCs
part as petitioner claims. However, it can and does now
declare that the CSC had no right to retroactively apply
the amended provision to petitioners case.
Laws shall have no retroactive effect, unless the
contrary is provided.93 When petitioner was dismissed,
the old Section 43 of the Civil Service Rules was still in
effect. The aforecited provision clearly states that the
penalty of removal is not executory, pending appeal,
unless the penalty is confirmed by Secretary of the
Department where the dismissed employee works.
Petitioner now claims that because the penalty of
dismissal imposed by Commissioner Seeres was never
confirmed by the Secretary of Labor, it could not have
been executed while his appeal to the CSC was
ongoing; thus, he should have been allowed to
continue to work and receive his salary.94
We agree.
After a thorough review of the records of this case,
however, the Court is convinced that petitioner was
never actually barred from returning to work after the
90day period lapsed. The records disclose that he
made no attempt to return to work after the expiration
of the suspension period. Thus, he was never

21

prevented from returning to workhe just chose not to

go back.

explained the principle behind the law, to

wit:chanRoblesvirtualLawlibrary

There is no question that 90day preventive

suspension was issued in accordance with law. The
moment this period expired, petitioner was
automatically reinstated in the service. This rule is
clear in Section 20 of the Civil Service Rules, which
reads thus:chanRoblesvirtualLawlibrary

The principle governing entitlement to salary during

suspension is cogently stated in Floyd R. Mechems A
Treatise on the Law of Public Offices and Officers as
follows:chanRoblesvirtualLawlibrary

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.
Petitioner refused to receive the Order dated 1
September 2001 implementing his 90day preventive
suspension. He was allowed to go to work until 27
September 2000the day he was supposedly barred
from entering the office. Thus, his actual suspension
from work began on the latter date and expired 90
days thereafter, specifically on 25 December 2000.
By virtue of Section 20 of the Civil Service Rules,
petitioner was automatically reinstated on 26
December 2000the day after the preventive
suspension period expired. Since he never attempted
to resume the performance of his duties after the
expiration of the preventive suspension, he cannot now
claim that the penalty of removal was executed,
pending his appeal to the CSC, without the
confirmation of the Secretary of Labor. Had it been
shown that he was prevented from returning to his post
after the expiration of the legally sanctioned
preventive suspension, he would have been entitled to
the payment of his back salaries from the moment the
suspension expired up to the time his dismissal would
have been implemented.
That he has never rendered any service to government
that would authorize him to collect backwages is
beyond cavil. He was never prevented from returning
to work after his suspension, thus he is not entitled to
any back salary.
With respect the 90day suspension period, the Civil
Service Rules do not state whether an employee placed
under preventive suspension is entitled to back salaries
for the period of suspension. However, in Gloria v.
Court of Appeals,95 we ruled that an employee has no
right to compensation for preventive suspension
pending investigation, even if the employee is
exonerated from the charges. Although a statutory
provision was used to justify the ruling therein, we also

Section 864. Officer not entitled to Salary during

Suspension from Office. An officer who has been
lawfully suspended from his office is not entitled to
compensation for the period during which he was so
suspended, even though it be subsequently
determined that the cause for which he was suspended
was insufficient. The reason given is that salary and
perquisites are the reward of express or implied
services, and therefore cannot belong to one who could
not lawfully perform such services.
Thus, it is not enough that an employee is exonerated
of the charges against him. In addition, his suspension
must be unjustified. x x x.
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. For this
reason, it is limited to ninety (90) days unless the delay
in the conclusion of the investigation is due to the
employee concerned. After that period, even if the
investigation is not finished, the law provides that the
employee shall be automatically
reinstated.96 (Emphasis in the original)
The same logic applies to the present case.
As regards the participation of Justice Veloso in the
CAs deliberation on the Motion for Reconsideration
after he had deliberately declared that he would
voluntarily inhibit himself from hearing the case, this
Court is of the opinion that the propriety of his act is
best threshed out in an administrative case held for
that purposeone in which he can file his comment
and explain his side.
Lastly, considering the gravity of the offense
committed by petitioner, the Office of the Ombudsman
should be directed to immediately investigate the
matter and, if it thereafter finds it necessary, to file the
appropriate criminal charges against him.
WHEREFORE, the instant Petition is DENIED. The
Court of Appeals Decision dated 26 September 2008
and its Resolution dated 26 August 2009 in CAG.R. SP
No. 100595, as well as the Resolutions of the Civil
Service Commission dated 18 December 2006 and 28
August 2007 are AFFIRMED.
The Office of the Ombudsman is hereby DIRECTED to
immediately investigate the criminal allegations
described in this Decision, and if it finds appropriate, to

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file the necessary criminal charges against the

petitioner.

Title

the President. The questioned acts are those of

petitioners and not of the President. Furthermore,
presidential decisions may be questioned before the
courts where there is grave abuse of discretion or that
the President acted without or in excess of jurisdiction.
:

HON.

R.

GLORIA VS COURT OF APPEALS

Citation

:
G.R.

No.

131012

April 21, 1999

Ponente

Facts

:
MENDOZA, J
:

Dr. Bienvenido
Icasiano
was
appointed
Schools
Division
Superintendent of Quezon City in 1989. Upon
recommendation of DECS Secretary Ricardo T. Gloria,
Icasiano was reassigned as Superintendent of the
Marikina Institute of Science and Technology (MIST) to
fill up the vacuum created by the retirement of its
Superintendent in 1994.
Icasiano filed
a TRO and preliminary mandatory injuction enjoining
the implementation of his reassignment. The Court of
Appeals granted the petition holding that the indefinite
reassignment is violative of Icasianos right to security
of tenure.
The
DECS
Secretary argued that the filing of the case is improper
because the same attacks an act of the President, in
violation of the doctrine of presidential immunity from
suit.
Issues

:
1. Whether or not the filing of the case violates
the presidential immunity from suit.
2. Whether or not private respondent's
reassignment is violative of his security of
tenure.

Held

2.
After
a
careful study, the Court upholds the finding of the
respondent court that the reassignment of petitioner to
MIST "appears to be indefinite". The same can be
inferred from the Memorandum of Secretary Gloria for
President Fidel V. Ramos to the effect that the
reassignment of private respondent will "best fit his
qualifications and experience" being "an expert in
vocational and technical education." It can thus be
gleaned that subject reassignment is more than
temporary as the private respondent has been
described as fit for the (reassigned) job, being an
expert in the field. Besides, there is nothing in the said
Memorandum to show that the reassignment of private
respondent is temporary or would only last until a
permanent replacement is found as no period is
specified or fixed; which fact evinces an intention on
the part of petitioners to reassign private respondent
with no definite period or duration. Such feature of the
reassignment in question is definitely violative of the
security of tenure of the private respondent. As held in
Bentain vs. Court of Appeals (209 SCRA 644):

"Security
of
tenure is a fundamental and constitutionally
guaranteed feature of our civil service. The mantle of
its protection extends not only to employees removed
without cause but also to cases of unconsented
transfers which are tantamount to illegal removals
(Department of Education, Culture and Sports vs. Court
of Appeals, 183 SCRA 555; Ibanez vs. COMELEC, 19
SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138).

While
a
temporary transfer or assignment of personnel is
permissible even without the employees prior consent,
it cannot be done when the transfer is a preliminary
step toward his removal, or is a scheme to lure him
away from his permanent position, or designed to
indirectly terminate his service, or force his resignation.
Such a transfer would in effect circumvent the
provision which safeguards the tenure of office of those
who are in the Civil Service (Sta. Maria vs. Lopez, 31
SCRA 651; Garcia vs. Lejano, 109 Phil. 116)."

1. Petitioners
contention is untenable for the simple reason that the
petition is directed against petitioners and not against

23

Having found
the reassignment of private respondent to the MIST to
be violative of his security of tenure, the order for his
reassignment to the MIST cannot be countenanced.

24