Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13932 December 24, 1959

JOSE V. DE LOS SANTOS, ET AL., petitioners,

vs.
HON. NICASIO YATCO, ET AL., respondents.

Anacleto P. Bernardo for petitioners.

Talileo P. Brion for respondents.

BENGZON, J.:

Petition for certiorari to revoke the order of the respondent judge cancelling his previous order
of execution. For the reasons stated hereinafter, it should be denied.

It appears that in civil Case No. Q-2664 of Quezon City Court of First Instance, the parties
submitted on December 9, 1957, a compromise agreement whereby, referring to the sale by
installment of a parcel of land made by plaintiffs Pacita V. De los Santos and Jose v. de los
Santos to defendant Francisco Mendoñez, they asked the court to render a judgment subject t
the following conditions:

a. On or before December 26, 1957, defendant shall pay to plaintiffs the amount
of P1,000.00;

b. Defendant shall pay P300.00 monthly installment within the first five days of
every month beginning January, 1958, until the balance shall have been paid in
full;

c. The balance shall bear interest at 10% per annum;

d. That balance of defendant to pay P1,000.00 on or before December 26, 1957

and/or any two (2) successive monthly installments shall be cause for plaintiffs
to demand of defendant to immediately vacate the premises with forfeiture in
plaintiffs favor of all previous payments made; that if defendant will refuse to
voluntarily vacate, plaintiffs can ask for execution of judgment against the
defendant;

e. That plaintiffs shall execute the necessary ABSOLUTE DEED OF SALE of the
lot, Lot No. 4, Block No. 13 T. C.T. No. 25094, Quezon City Registry, in favor of
defendant upon payment in full of the balance.lawphi1.net

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Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and
saying "judgment is hereby rendered in accordance with the terms and conditions set forth
therein, for the parties to comply therewith."

On March 10, 1958, plaintiffs in the same case filed a motion for execution, because defendant
had allegedly neglected to pay monthly installments since January 1958. Plaintiffs set the
motion for hearing on March 15, 1958. However, on March 14, 1958, defendants moved (with
the conformity of plaintiffs' counsel) for postponement to March 22, 1958 "to give the parties
sufficient time to come to a more just, fair and equitable agreement." (Annex "E") And the
judge postponed, as requested.

It is not clear happened at the hearing on March 22, 1958. According to plaintiffs, Mendoñez
admitted he violated the agreement, asked for, and was granted, two days to settle with
plaintiffs, but he failed to do so. According to defendant there was a misunderstanding at the
hearing. The fact is, the court issued on March 25, 1958, an order of execution. However,
defendant Mendoñez filed on April 17, 1958, an urgent motion to quash the writ of execution,
asserting under oath that "immediately after the execution of the compromise agreement . . .
plaintiff Pacita V. de los Santos and defendant Francisco Mendoñez entered into a verbal
agreement whereby the former assured and led defendant to believe that provided he could
pay in full and at one time the balance of his indebtedness to her through a GSIS Government
Service Insurance System) loan which she is willing to facilitate for defendant, she would
execute the necessary deed of absolute sale in favor of the defendant for Lot No. 4, Block No.
13-C, Pcs-3312-AMD of T.C.T. No. 25094 of Quezon City and would consider the terms and
conditions favorable to her in their compromise agreement unenforceable against defendant. . .
."

Defendant further alleged, also under oath, among other things, that he applied for and
secured the necessary loan from the GSIS; that plaintiffs had been so advised on March 28,
1958; but plaintiff Pacita V. de los Santos "arbitrarily and illegally demands and continuous
demanding of defendant that before she complies with the content of said (verbal) agreement,
defendant should pay her P1,000.00 by way of attorney's fees plus the balance of defendant's
indebtedness computed by her in the amount of P14,363.00, excluding interest yet, all to be
taken from defendant's GSIS loan as approved, and that the P1,000.00 already paid by
defendant to her as stated in paragraph 4, supra, is considered by her forfeited in her favor. . .
."

This urgent motion was taken up on April 19, 1958. After listening to the parties, the judge in
open court ordered; "in view of the statement of counsel for plaintiffs that they are still open to
an amicable settlement, action on the motion to quash writ of execution of the defendant is
held in abeyance for two (2) weeks during which period they can settle the case amicably and
report to the Court whatever with agreement they may have reached."

On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de
los Santos on April 22, 1958, that he made known to her "that he is ready to pay and is offering
her the sum of P13,563, his balance indebtedness to her, in accordance with their verbal
agreement on December 9, 1957 . . . Plaintiff Pacita V. de los Santos brushed aside defendant's
offer of payment, and instead, stated that she will abide by their said agreement only if she will
be paid P14,500.00. She added that she is demanding now, P14,500.00 after she has forfeited

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the P1,000.00 already paid by defendant to her, and that she can not allow the P1,000.00 be
deducted from the remaining balance of P14,563.00."

The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendant's
insistance on non-violation of the compromises agreement, he set the case for hearing on June
3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to attend
the hearing, and defendant proved the material allegations of his urgent motion as hereinabove
set forth.

Wherefore, convinced that there was no justification or the issuance of the writ of execution,
the Hon. Nicasio Yatco, Judge, quashed it by his order of June 4, 1958.lawphi1.net

Hence this petition for certiorari to revoke that particular order, which petition must necessarily
be based on lack of jurisdiction or abuse of discretion. 1

There is no question in this country that a judge has jurisdiction to quash a writ of execution
issued by him, particularly where it was improvidently issued. (Dimayuga vs. Raymundo, 76
Phil., 143, 42 Off. Gaz., 2121). See also Garcia vs, Muñoz, 103 Phil., 628.

Was there abuse of discretion? We think not. In the first place, there being opposition on the
part of the defendant, who alleged and proved a subsequent verbal agreement amending the
compromise, execution could not validly be decreed without a hearing. As we said in Co. vs.
Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of
the compromise agreement is alleged, "there arises a cause of action which must be passed
upon by the court requiring a hearing to determine whether such breach had really taken
place." 2

In the second place, the allegations proved by Mendoñez about their verbal agreement, his
having secured a loan from the GSIS and his consequent ability to discharge his obligation
seemingly justified the court's refusal to eject defendant from the premises (on execution) was
the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by
defendant as previous installments of the purchase price, 3not to mention the of defendants use
of the house and theatre erected that parcel of land. Upon the other hand, the respondent
judge's action caused no irreparable or undue harm plaintiffs, because the latter still have the
judgment Mendoñez. Note particularly that their unpaid continuous to earn 10% interest.

Wherefore, as the court had jurisdiction and has committed not grave abuse of discretion, the
writ of certiorari may not be issued.

Petition denied, with costs against petitioners.

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 EN BANC

[G.R. No. 147870. July 31, 2002]

RAMIR R. PABLICO, petitioner, vs. ALEJANDRO A. VILLAPANDO, respondent.

DECISION
YNARES-SANTIAGO, J.:

May local legislative bodies and/or the Office of the President, on appeal, validly impose the
penalty of dismissal from service on erring elective local officials?
This purely legal issue was posed in connection with a dispute over the mayoralty seat of
San Vicente, Palawan. Considering that the term of the contested office expired on June 30,
2001,i the present case may be dismissed for having become moot and academic.ii Nonetheless,
we resolved to pass upon the above-stated issue concerning the application of certain provisions
of the Local Government Code of 1991.
The undisputed facts are as follows:
On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of the
Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of Palawan
an administrative complaint against respondent Alejandro A. Villapando, then Mayor of San
Vicente, Palawan, for abuse of authority and culpable violation of the Constitution.iii Complainants
alleged that respondent, on behalf of the municipality, entered into a consultancy agreement with
Orlando M. Tiape, a defeated mayoralty candidate in the May 1998 elections. They argue that
the consultancy agreement amounted to an appointment to a government position within the
prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution.
In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired
him. He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992,
stating that the appointment of a defeated candidate within one year from the election as a
consultant does not constitute an appointment to a government office or position as prohibited
by the Constitution.
On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty of
the administrative charge and imposed on him the penalty of dismissal from service.iv Respondent
appealed to the Office of the President which, on May 29, 2000, affirmed the decision of the
Sangguniang Panlalawigan of Palawan.v
Pending respondents motion for reconsideration of the decision of the Office of the President,
or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took
his oath of office as Municipal Mayor. Consequently, respondent filed with the Regional Trial Court
of Palawan a petition for certiorari and prohibition with preliminary injunction and prayer for a
temporary restraining order, docketed as SPL Proc. No. 3462.vi The petition, seeks to annul, inter
alia, the oath administered to petitioner. The Executive Judge granted a Temporary Restraining
Order effective for 72 hours, as a result of which petitioner ceased from discharging the functions

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of mayor. Meanwhile, the case was raffled to Branch 95 which, on June 23, 2000, denied
respondents motion for extension of the 72-hour temporary restraining order.vii Hence, petitioner
resumed his assumption of the functions of Mayor of San Vicente, Palawan.
On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the
Court of Appeals seeking to annul: (1) the May 29, 2000 decision of the Office of the President;
(2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the June
23, 2000 order of the Regional Trial Court of Palawan, Branch 95.
On March 16, 2001, the Court of Appealsviii declared void the assailed decisions of the Office
of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate
the Office of Mayor of San Vicente, Palawan.ix A motion for reconsideration was denied on April
23, 2001.x Hence, the instant petition for review.
The pertinent portion of Section 60 of the Local Government Code of 1991 provides:
Section 60. Grounds for Disciplinary Actions. An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:
xxx xxx xxx
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court. (Emphasis supplied)
It is clear from the last paragraph of the aforecited provision that the penalty of dismissal
from service upon an erring elective local official may be decreed only by a court of law. Thus, in
Salalima, et al. v. Guingona, et al.,xi we held that [t]he Office of the President is without any
power to remove elected officials, since such power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of the aforequoted Section 60.
Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government
Code, however, adds that (b) An elective local official may be removed from office on the grounds
enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local
Government Code of 1991] by order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the other. The disciplining
authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office
of the President.xii
As held in Salalima,xiii this grant to the disciplining authority of the power to remove elective
local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules
and Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such
as the Local Government Code. Implementing rules should conform, not clash, with the law that
they implement, for a regulation which operates to create a rule out of harmony with the statute
is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government
Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing
rules.xiv
Verily, the clear legislative intent to make the subject power of removal a judicial prerogative
is patent from the deliberations in the Senate quoted as follows:
xxx xxx xxx
Senator Pimentel. This has been reserved, Mr. President, including the issue of
whether or not the Department Secretary or the Office of the President can suspend or

5|Page
 remove an elective official.
Senator Saguisag. For as long as that is open for some later disposition, may I just
add the following thought: It seems to me that instead of identifying only the proper
regional trial court or the Sandiganbayan, and since we know that in the case of a
regional trial court, particularly, a case may be appealed or may be the subject of an
injunction, in the framing of this later on, I would like to suggest that we consider
replacing the phrase PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN
simply by COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial court o
ang Sandiganbayan.
Senator Pimentel. OR THE PROPER COURT.
Senator Saguisag. OR THE PROPER COURT.
Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.
Senator Saguisag. It is to be incorporated in the phraseology that will craft to
capture the other ideas that have been elevated.
xxx xxx x x x.xv
It is beyond cavil, therefore, that the power to remove erring elective local officials from
service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and
Regulations Implementing the Local Government Code, insofar as it vests power on the
disciplining authority to remove from office erring elective local officials, is void for being
repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law
on suspension or removal of elective public officials must be strictly construed and applied, and
the authority in whom such power of suspension or removal is vested must exercise it with utmost
good faith, for what is involved is not just an ordinary public official but one chosen by the people
through the exercise of their constitutional right of suffrage. Their will must not be put to naught
by the caprice or partisanship of the disciplining authority. Where the disciplining authority is
given only the power to suspend and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to remove.xvi As explained by the Court in Lacson v.
Roque:xvii
the abridgment of the power to remove or suspend an elective mayor is not without
its own justification, and was, we think, deliberately intended by the lawmakers. The
evils resulting from a restricted authority to suspend or remove must have been weighed
against the injustices and harms to the public interests which would be likely to emerge
from an unrestrained discretionary power to suspend and remove.
WHEREFORE, in view of the foregoing, the instant petition for review is DENIED.
SO ORDERED.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 185740 July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR

JESUS O. TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.

DECISION

BRION, J.:

We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on
certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008
of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as
the Province of Camarines Norte’s provincial administrator, or to an equivalent position.

Factual Antecedents

Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then
Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On
March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in
writing why no administrative charges should be filed against her for gross insubordination/gross
discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the
service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her
comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and
recommended to Governor Pimentel that she be held administratively liable.4 On September 30,
1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and
dismissed Gonzales.5

Proceedings before the Civil Service Commission

Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC
issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of
insubordination and suspending her for six months. This decision was appealed by Governor
Pimentel, which the CSC denied in its Resolution No. 001952.7

Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she
claimed that she had already served her six-month suspension and asked to be reinstated. The CSC
issued Resolution No. 002245,8 which directed Gonzales’ reinstatement.

Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but
terminated her services the next day for lack of confidence. He then wrote a letter9 to the CSC
reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential
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employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that
the provincial administrator position is highly confidential and is coterminous in nature.

The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement
as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act
No. RA 7160) made the provincial administrator position coterminous and highly confidential in
nature, this conversion cannot operate to prejudice officials who were already issued permanent
appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales
has acquired a vested right to her permanent appointment as provincial administrator and is entitled
to continue holding this office despite its subsequent classification as a coterminous position. The
conversion of the provincial administrator position from a career to a non-career service should not
jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent
appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and
confidence is not among the grounds for a permanent appointee’s dismissal or discipline under
existing laws.

In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O.
Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded
with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator
position, or to an equivalent position.Thus, the petitioner, through Governor Typoco, filed a petition
for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No.
061988.

The Appellate Court’s Ruling

The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an
equivalent position.14

Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal
right to his position once he assumes a position in the civil service under a completed appointment.
This legal right is protected both by statute and the Constitution, and he cannot be removed from
office without cause and previous notice and hearing. Appointees cannot be removed at the mere
will of those vested with the power of removal, or without any cause.

The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16
Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that
lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the ground
of loss of confidence violated her security of tenure, and that she has the right to be reinstated with
payment of backwages.

The CA further held that Gonzales’ dismissal was illegal because it was done without due process.
The proceedings under Administrative Case No. 001 cannot be the basis for complying with the
requirements of due process because they are separate and distinct from the proceedings in the
present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of
confidence, without any hearing, the day after she was reinstated.

Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has
long been final and executory. The petitioner did not file any petition for reconsideration against
Resolution No. 002245, and hence, it is no longer alterable.

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The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18
dated December 2, 2008.

The Present Petition

In its present petition for review on certiorari, the petitioner argues that the provincial administrator
position has been converted into a highly confidential, coterminous position by RA 7160. Hence,
Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment.

In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator
remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the
bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator as
a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code.
This classification, established by law and jurisprudence, cannot be altered by the mere
implementing rules and regulations of RA 7160. And assuming arguendo that the provincial
administrator position has indeed become a primarily confidential position, this reclassification
should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s
effectivity.

Issues

The parties’ arguments, properly joined, present to us the following issues:

1) Whether Congress has re-classified the provincial administrator position from a

career service to a primarily confidential, non-career service position; and

2) Whether Gonzales has security of tenure over her position as provincial

administrator of the Province of Camarines Norte.

The Court’s Ruling

We find the petition meritorious.

Congress has reclassified the provincial administrator position as a primarily confidential, non-career
position

We support the CSC’s conclusion that the provincial administrator position has been classified into a
primarily confidential, non-career position when Congress, through RA 7160, made substantial
changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code
(LGC), did not include a provincial administrator position among the listing of mandatory provincial
officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then
be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position
mandatory for every province.26 Thus, the creation of the provincial administrator position under the
old LGC used to be a prerogative of the Sangguniang Panlalawigan.

Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the
qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the
requirement of civil service eligibility for a provincial administrator, together with the educational
requirements, it shortened the six-year work experience requirement to five years.28 It also
9|Page
mandated the additional requirements of residence in the local government concerned, and imposed
a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority,
reclassifying it as a non-career service position that is primarily confidential.

Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career
position which required qualification in an appropriate examination prior to appointment. Laurel
placed the provincial administrator position under the second major level of positions in the career
service under Section 7 of Presidential Decree No. 807. This provision reads:

Section 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requires examinations shall be
grouped into three major levels as follows:

xxxx

2. The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at
least four years of college work up to Division Chief level.

Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing
provincial administration by identifying the incumbent with the provincial governor to ensure the
alignment of the governor’s direction for the province with what the provincial administrator would
implement. In contrast with the general direction provided by the provincial governor under the
Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant
interaction between the provincial administrator and the provincial governor, to wit:

(b) The administrator shall take charge of the office of the administrator and shall:

(1) Develop plans and strategies and upon approval thereof by the governor or
mayor, as the case may be, implement the same particularly those which have to do
with the management and administration-related programs and projects which the
governor or mayor is empowered to implement and which the sanggunian is
empowered to provide for under this Code;

(2) In addition to the foregoing duties and functions, the administrator shall:

(i) Assist in the coordination of the work of all the officials of the local government unit, under the
supervision, direction, and control of the governor or mayor, and for this purpose, he may convene
the chiefs of offices and other officials of the local government unit;

xxxx

(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all
other matters relative to the management and administration of the local government unit.
[emphases and italics ours]

10 | P a g e
As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close
intimate relationship with the office of the governor (its appointing authority) to effectively develop,
implement and administer the different programs of the province. The administrator’s functions are
to recommend to the Sanggunian and to advise the governor on all matters regarding the
management and administration of the province, thus requiring that its occupant enjoy the
governor’s full trust and confidence.

To emphasize the close relations that the provincial administrators’ functions have with the office of
the governor, RA 7160 even made the provincial administrator position coterminous with its
appointing authority.30 This provision, along with the interrelations between the provincial
administrator and governor under Section 480, renders clear the intent of Congress to make the
provincial administrator position primarily confidential under the non-career service category of the
civil service.

Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of

legislative power that does not violate Gonzales’ security of tenure

Having established that Congress has changed the nature of the provincial administrator position to
a primarily confidential employee, the next question to address would be its impact on Gonzales’
security of tenure. According to the petitioner, Gonzales lost her security of tenure when the
provincial administrator position became a primarily confidential position. Gonzales, on the other
hand, retorted that the conversion of the position should not be retroactively applied to her, as she
is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium
to Gonzales’ original permanent appointment under the old LGC. They posit that Gonzales acquired
a vested legal right over her position from the moment she assumed her duties as provincial
administrator. Thus, she cannot be removed from office except for cause and after due hearing;
otherwise such removal would amount to a violation of her security of tenure.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual
entanglement between the nature of the position and an employee’s right to hold a position. These
two concepts are different. The nature of a position may change by law according to the dictates of
Congress. The right to hold a position, on the other hand, is a right that enjoys constitutional and
statutory guarantee, but may itself change according to the nature of the position.

Congress has the power and prerogative to introduce substantial changes in the provincial
administrator position and to reclassify it as a primarily confidential, non-career service position.
Flowing from the legislative power to create public offices is the power to abolish and modify them
to meet the demands of society;31 Congress can change the qualifications for and shorten the term
of existing statutory offices. When done in good faith, these acts would not violate a public officer’s
security of tenure, even if they result in his removal from office or the shortening of his term.32
Modifications in public office, such as changes in qualifications or shortening of its tenure, are made
in good faith so long as they are aimed at the office and not at the incumbent.33

In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the
offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the
board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr.
Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special
civil action for quo warranto against their replacements, arguing that their term of office under the
old law had not yet expired, and neither had they abandoned or been removed from office for
cause. We dismissed their petition, and held that Congress may, by law, terminate the term of a
11 | P a g e
public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo
and Dr. Ignacio were removed for cause or had abandoned their office is immaterial.

More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a
permanent appointee to the Executive Director II position, which was not part of the career
executive service at the time of her appointment. During her incumbency, the CSC, by authority
granted under Presidential Decree No. 1, classified the Executive Director II position to be within the
career executive service. Since Dimayuga was not a career executive service officer, her initially
permanent appointment to the position became temporary; thus, she could be removed from office
at any time.

In the current case, Congress, through RA 7160, did not abolish the provincial administrator position
but significantly modified many of its aspects. It is now a primarily confidential position under the
non-career service tranche of the civil service. This change could not have been aimed at prejudicing
Gonzales, as she was not the only provincial administrator incumbent at the time RA 7160 was
enacted. Rather, this change was part of the reform measures that RA 7160 introduced to further
empower local governments and decentralize the delivery of public service. Section 3(b) of RA 7160
provides as one of its operative principles that:

(b) There shall be established in every local government unit an accountable, efficient, and dynamic
organizational structure and operating mechanism that will meet the priority needs and service
requirements of its communities.

Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA

7160 is immaterial to her removal as provincial administrator. For purposes of determining whether
Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied
at the time of her removal should be considered, and not merely the nature of her appointment at
the time she entered government service.

In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of
tenure protects the permanent appointment of a public officer, despite subsequent changes in the
nature of his position.

Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a
permanent employee remains a permanent employee unless he is validly terminated," and from
there attempts to draw an analogy between Gabriel and the case at hand.

The very first sentence of Gabriel spells out its vast difference from the present case. The sole and
main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an
illegally dismissed government employee, who was later ordered reinstated. From this sentence
alone can be discerned that the issues involved related to the consequences of illegal dismissal
rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change in the
nature of the position held by the public officer involved.

Further, key factual differences make Gabriel inapplicable to the present case, even if only by
analogy: first, the public officer in Gabriel received a Memorandum stating that he would be
appointed as Transportation District Supervisor III under their office reorganization. Second, the
Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual
employee, which led to his termination from service, was due to a pending protest he filed before
the CSC – indicating that there was no ground for him to not receive the appointment earlier
12 | P a g e
promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and
confidence in the appointee was sufficient cause for the termination of employment of a primarily
confidential employee. And third, there was a change in the position held by the public officer in
Gabriel. He was a permanent employee who was extended a different appointment, which was
casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a
public officer who held the same position whose nature changed because of the passage of RA
7160.

The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support
its contention that permanent appointees could expect protection for their tenure and appointments
in the event that the Court determines that the position is actually confidential in nature:

The Court is aware that this decision has repercussions on the tenure of other corporate secretaries
in various GOCCs. The officers likely assumed their positions on permanent career status, expecting
protection for their tenure and appointments, but are now re-classified as primarily confidential
appointees. Such concern is unfounded, however, since the statutes themselves do not classify the
position of corporate secretary as permanent and career in nature. Moreover, there is no absolute
guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the
Court, by legal tradition, has the power to make a final determination as to which positions in
government are primarily confidential or otherwise. In the light of the instant controversy, the
Court's view is that the greater public interest is served if the position of a corporate secretary is
classified as primarily confidential in nature.38

The quoted portion, however, even bolsters our theory. Read together with its succeeding
paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the
proposition that other corporate secretaries in government-owned and –controlled corporations
cannot expect protection for their tenure and appointments upon the reclassification of their position
to a primarily confidential position. There, the Court emphasized that these officers cannot rely on
the statutes providing for their permanent appointments, if and when the Court determines these to
be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we
even pointed out that there is no vested right to public office, nor is public service a property right.
Thus:

Moreover, it is a basic tenet in the country's constitutional system that "public office is a public
trust," and that there is no vested right in public office, nor an absolute right to hold office. No
proprietary title attaches to a public office, as public service is not a property right. Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one can be
said to have any vested right in an office. The rule is that offices in government, except those
created by the constitution, may be abolished, altered, or created anytime by statute. And any
issues on the classification for a position in government may be brought to and determined by the
courts.40 (emphases and italics ours)

Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator
position on a permanent capacity

In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the

dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain
safeguards against the termination of government employees affected by the implementation of RA
7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive
department’s intent to protect and uphold both the national government and the local government
13 | P a g e
employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an
administrator) to prove its point:

8. Incumbents of positions, namely administrator, legal officer, and information officer declared by
the Code as coterminous, who hold permanent appointments, shall continue to enjoy their
permanent status until they vacate their positions.

At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their
permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply
to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly
provides for its scope of application, to wit:

Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of
Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions are
to be Devolved to the Local Government Units and for other Related Purposes. [underscore, italics
and emphases ours]

A reading of EO 503’s whereas clauses confirms that it applies only to national government
employees whose functions are to be devolved to local governments:

WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991,
hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and
facilities from the national government agencies (NGAs) concerned to the local government units
(LGUs);

WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied
by the transfer of the national personnel concerned and assets to ensure continuity in the delivery of
such services and facilities;

WHEREAS, responsive rules and regulations are needed to affect the required transfer of national
personnel concerned and assets to the LGUs. [underscores, italics and emphases ours]

Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As
explained earlier, the existence of the provincial administrator position was a prerogative of the
Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is
clearly not a national government position whose functions are to be devolved to the local
governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national
government employees only. According to the dissent, the phrase "and for related purposes" in EO
503’s title could encompass personnel not necessarily employed by national government agencies
but by local government units such as the administrator, the legal officer and the information officer,
as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the
crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial
administrator would automatically become coterminous with that of the appointing authority upon
RA 7160’s effectivity.

This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide
for. The phrase "and for other related purposes" can only add to EO 503 matters related to the
devolution of personnel, basic services and facilities to local government units. The impact of the
14 | P a g e
change in a local government position’s nature is clearly different from the implementation of
devolution and its ancillary effects: the former involves a change in a local government position’s
functions and concept of tenure, while the latter involves (among other things) the transfer of
national government employees to local government units. This difference is highlighted by the fact
that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In
contrast, the change in the nature of the provincial administrator position may be gleaned from
Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for
other related purposes" in EO 503’s title be understood to encompass the consequences of the
change in the local government position’s nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city,
municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued
pursuant to the President’s ordinance powers to provide for rules that are general or permanent in
character for the purpose of implementing the President’s constitutional or statutory powers.41
Exercising her constitutional duty to ensure that all laws are faithfully executed, then President
Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17
of RA 7160, which requires local government units to absorb the personnel of national agencies
whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas clauses,
and its limited application as discussed earlier.

Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the
Executive usurping a legislative power. The grant of permanent status to incumbent provincial
administrators, despite the clear language and intent of RA 7160 to make the position coterminous,
is an act outside the President’s legitimate powers. The power to create, abolish and modify public
offices is lodged with Congress.43 The President cannot, through an Executive Order, grant
permanent status to incumbents, when Congress by law has declared that the positions they occupy
are now confidential. Such act would amount to the President’s amendment of an act of Congress –
an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of
powers, a constitutionally enshrined principle that the Court has the duty to uphold.44

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys
the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal
presumption of its validity stands. The EO’s validity, however, is not in question in the present case.
What is at issue is a proper interpretation of its application giving due respect to the principle of
separation of powers, and the dissenting opinion’s interpretation does violence to this principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of
tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of whether they
belong to the career or non-career service category, are entitled to this guaranty; they cannot be
removed from office except for cause provided by law and after procedural due process.45 The
concept of security of tenure, however, labors under a variation for primarily confidential employees
due to the basic concept of a "primarily confidential" position. Serving at the confidence of the
appointing authority, the primarily confidential employee’s term of office expires when the
appointing authority loses trust in the employee. When this happens, the confidential employee is
not "removed" or "dismissed" from office; his term merely "expires"46 and the loss of trust and
confidence is the "just cause" provided by law that results in the termination of employment. In the
present case where the trust and confidence has been irretrievably eroded, we cannot fault

15 | P a g e
Governor Pimentel’s exercise of discretion when he decided that he could no longer entrust his
confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be
suspended or dismissed except for cause, as provided by law and after due process. It cannot be
expanded to grant a right to public office despite a change in the nature of the office held. In other
words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’
right to security of tenure when she was removed without sufficient just cause from her position,
but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her
services were subsequently terminated under the law prevailing at the time of the termination of her
service; i.e., she was then already occupying a position that was primarily confidential and had to be
dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus,
Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as
provincial administrator of Camarines Norte or to any other comparable position. This conclusion,
however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and
future employment in government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE
the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of
Appeals in CAG.R. SP No. 97425.

SO ORDERED.

16 | P a g e
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 181559 October 2, 2009

LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO

S. VILLARUBIA, RICARDO M. GONZALES, JR., ROSSEL MARIE G. GUTIERREZ, NICANOR F.
VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ,
ANTOLIN D. ZAMAR, JR., MARIO S. ALILING, TEODULO SALVORO, JR., PHILIP JANSON
ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN RYAN PATULA, WILLIAM
TANOY, VICTOR ARBAS, JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A.
RENDOQUE, ENRIQUETA TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS, MARIO
T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLAROSA, RICARDO C. PATULA, RACHEL
BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO CUAL, BERNARD J. OZOA, ROGER JOHN
AROMIN, CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA
LEE ESTRABELA, MELCHOR B. MAQUILING, RAUL MOLAS, OSCAR KINIKITO, DARWIN B.
CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO,
RODULFO ZOSA, JR. and JORGE ARBOLADO, Petitioners,
vs.
CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR
DUMALAG, JR., ERLINDA TUMONGHA, JOSEPHINE MAE FLORES AND ARACELI CAMPOS,
Respondents.

DECISION

DEL CASTILLO, J.:

The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned
demagoguery of elections. Amidst the struggle of personalities, ideologies, and platforms, the vigor and
resilience of a professional civil service can only be preserved where our laws ensure that partisanship plays
no part in the appointing process. Consequently, we affirm the validity of a regulation issued by the Civil
Service Commission (CSC or the Commission) intended to ensure that appointments and promotions in the
civil service are made solely on the basis of qualifications, instead of political loyalties or patronage.

17 | P a g e
This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision1
of the Court of Appeals dated August 28, 2007 and its Resolution2 dated January 11, 2008 in CA-G.R. CEB-
SP No. 00665. The case stemmed from CSC Field Office’s invalidation of petitioners’ appointments as
employees of the City of Dumaguete, which was affirmed by the CSC Regional Office, by the Commission en
banc and by the Court of Appeals.

Legal and Factual Backgrounds

Accreditation of Dumaguete City by the Civil Service Commission

On October 25, 1999, pursuant to the Commission’s Accreditation Program, the CSC issued Resolution No.
992411,3 which granted the City Government of Dumaguete the authority to take final action on all its
appointments, subject to, inter alia, the following conditions:

1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within
the limits and restrictions of the implementing guidelines of the CSC Accreditation Program as amended (MC
No. 27, s. 1994);

xxxx

5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service
Field Office] CSFO concerned;

xxxx

9. That appointments found in the course of monthly monitoring to have been issued and acted upon in
violation of pertinent rules, standards, and regulations shall immediately be invalidated by the Civil Service
Regional Office (CSRO), upon recommendation by the CSFO.

Appointments made by outgoing Mayor Remollo

Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but
lost to respondent Mayor Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor
Remollo promoted 15 city hall employees, and regularized another 74 city hall employees, including the
herein 52 petitioners.

On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall
grounds that he would not honor the appointments made by former Mayor Remollo. On the same day, he
instructed the City Administrator, respondent Dominador Dumalag, Jr., to direct respondent City Assistant
Treasurer Erlinda C. Tumongha (now deceased), to refrain from making any cash disbursements for
payments of petitioners' salary differentials based on their new positions.

The Petition for Mandamus before the Regional Trial Court of Dumaguete City

Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer
for a Temporary Restraining Order against the City of Dumaguete, represented by respondent city mayor
Perdices and city officers Dumalag, Tumongha, Josephine Mae Flores, and Araceli Campos. The petition was
docketed as Civil Case No. 13013, and raffled to Branch 41 of the Regional Trial Court of Dumaguete City.

18 | P a g e
Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking any
action or issuing any orders nullifying their appointments.

In a Decision4 dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners’ Motion for
Reconsideration was also denied in an Order5 dated April 26, 2007. The issues involved in Civil Case No.
13013 have twice been elevated to and eventually resolved by the Court in G.R. Nos. 1777956 and 168484.7

Revocation of Appointments by the Civil Service Commission Field Office

Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II
Fabio R. Abucejo, revoked and invalidated the appointments of the petitioners (the August 1, 2001 Order)
based of the following findings:

1. There were a total of 15 promotional appointments and 74 original appointments issued

as reflected in the submitted [Report of Personnel Actions] ROPA for the month of June
2001.

2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held
on 5 June 2001 to consider the number of appointments thus issued and there was no other
call for a PSB meeting certified to by the City [Human Resource Management Officer] HRMO.

3. There were no minutes available to show the deliberations of the PSB of the 89
appointments listed in the ROPA as certified by the City HRMO.

4. There were no PSB statements certifying that there was actual screening and evaluation
done on all candidates for each position.

5. The appointing officer of the 89 appointments was an outgoing local official who lost
during the 14 May 2001 elections for City Mayor of Dumaguete City.

6. The 89 appointments were all issued after the elections and when the new city mayor was
about to assume office.8

Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No.
010988 dated June 4, 2001, the pertinent portions of which provide:

WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission
anticipates controversies that would arise involving appointments issued by outgoing local chief executives
immediately before or after the elections;

WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue
appointments even after the elections, especially when their successors have already been proclaimed.

WHEREAS, the practice of some outgoing local chief executives causes animosities between the outgoing
and incoming officials and the people who are immediately affected and are made to suffer the
consequences thereof are the ordinary civil servants, and eventually, to a large extent, their constituents
themselves;

19 | P a g e
WHEREAS, one of the reasons behind the prohibition in issuing appointments or hiring new employees
during the prohibited period as provided for in CSC Memorandum Circular No. 7, series of 2001, is to
prevent the occurrence of the foregoing, among others;9

WHEREAS, local elective officials whose terms of office are about to expire, are deemed as "caretaker"
administrators who are duty bound to prepare for the smooth and orderly transfer of power and authority to
the incoming local chief executives;

WHEREAS, under Section 15, Article VII of the Constitution, the President or Acting President is prohibited
from making appointments two (2) months immediately before the next presidential elections and up to the
end of his term, except temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety;

WHEREAS, while there is no equivalent provision in the Local Government Code of 1991 (Republic Act 7160)
or in the Civil Service Law (Book V of Executive Order No. 292) of the abovestated prohibition, the rationale
against the prohibition on the issuance of "midnight appointments" by the President is applicable to
appointments extended by outgoing local chief executives immediately before and/or after the elections;

xxxx

NOW THEREFORE, the Commission, pursuant to its constitutional mandate as the control personnel agency
of the government, hereby issues and adopts the following guidelines:

xxxx

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or

demotion, except in cases of renewal and reinstatement, regardless of status, which are
issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by
the Commission, including its Regional or Field Offices, of said appointments or the Report of
Personnel Actions (ROPA) as the case may be, shall be disapproved unless the following
requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel
Selection Board (PSB) before the prohibited period on the issuance of appointments
as shown by the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public
service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the
elections.

4. The term "mass appointments" refers to those issued in bulk or in large number after the
elections by an outgoing local chief executive and there is no apparent need for their
immediate issuance.

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On September 4, 2001, petitioners filed a Motion for Reconsideration of the August 1, 2001 Order before
the CSC Region VII Office in Cebu. The motion was, however, denied on the ground that it should have
been filed before the office of Director Abucejo in Dumaguete City. Thereafter, on October 31, 2001,
petitioners asked the CSC Region VII Office in Cebu to treat their previous Motion for Reconsideration as
their appeal.1avvphi1

On February 14, 2002, the CSC Region VII Office affirmed the August 1, 2001 Order. Subsequently, an
Appeal to the Commission en banc was filed through registered mail by 52 of the original 89 appointees, the
petitioners herein, namely:

Name Former Position New Position Date of

Appointment
1. Leah M. Nazareno Legal Researcher Asst. Dept. Head I 7-Jun-01
2. Carlo M. Cual Legislative Staff Legislative Staff 5-Jun-01
Officer I Officer III
3. Rogelio B. Clamonte Public Services Supply Officer IV 5-Jun-01
4. Florecita Llosa Supply Officer I Records Officer II 11-Jun-01
5. Rogelio S. Villarubia Agriculturist II Agriculturist III 5-Jun-01
6. Rossel Marie G. Gutierrez Casual/Plantilla Supervising 5-Jun-01
Environmental
Management
Specialist
7. Nicanor F. Villarosa, Jr. Casual/Plantilla Dentist II 5-Jun-01
8. Marie Sue Cual Casual/Plantilla Social Welfare 7-Jun-01
Officer I
9. Miramichi Majella B. Mariot Casual/Plantilla Records Officer II 7-Jun-01
10. Alma F. Ramirez Casual/Plantilla Clerk IV 7-Jun-01
11. Antolin D. Zamar, Jr. Casual/Plantilla Metro Aide II 11-Jun-01
12. Mario S. Aliling Casual/Plantilla Driver II 5-Jun-01
13. Teodulo Salvoro, Jr. Casual/Plantilla Metro Aide II 5-Jun-01
14. Philip Janson Altamarino Casual/Plantilla Clerk I 5-Jun-01
15. Antonieta Padura Casual/Plantilla Metro Aide II 11-Jun-01
16. Adolfo Cornelia Casual/Plantilla Metro Aide II 11-Jun-01
17. Ian Ryan Patula Casual/Plantilla Metro Aide II 7-Jun-01
18. William Tanoy Casual/Plantilla Metro Aide II 5-Jun-01
19. Victor Arbas Casual/Plantilla Public Services 7-Jun-01
Foreman
20. Jeanith Cual Casual/Plantilla Utility Worker II 5-Jun-01

21 | P a g e
 21. Braulio Sayson Casual/Plantilla Mechanical Plant 7-Jun-01
Supervisor
22. Dawn Villarosa Casual/Plantilla Clerk I 7-Jun-01
23. Agustin Rendoque Casual/Plantilla Utility Worker I 7-Jun-01
24. Enriqueta Tumongha Casual/Plantilla Utility Worker II 5-Jun-01
25. Lionel Banogon Casual/Plantilla Clerk II 5-Jun-01
26. Rosalito Vergantinos Casual/Plantilla Pest Control Worker 5-Jun-01
II
27. Mario Cual, Jr. Casual/Plantilla Utility Foreman 7-Jun-01
28. Elaine Tumongha Casual/Plantilla Registration Officer I 11-Jun-01
29. Norman Villarosa Casual/Plantilla Utility Worker I 5-Jun-01
30. Ricardo C. Patula Casual/Plantilla Revenue Collection 5-Jun-01
Clerk I
31. Rachel Banagua Casual/Plantilla Utility Worker I 5-Jun-01
32. Rodolfo Calugcugan Job Order Driver I 7-Jun-01
33. Pergentino Cual Job Order Metro Aide II 11-Jun-01
34. Bernard Ozoa Job Order Utility Worker I 7-Jun-01
35. Roger J. Aromin Job Order Utility Worker I 7-Jun-01
36. Cheryl Nocete Job Order Utility Worker I 11-Jun-01
37. Marivic Sanchez Job Order Utility Worker I 11-Jun-01
38. Crispin Duran Job Order Metro Aide II 11-Jun-01
39. Rebeco Lingcong Job Order Metro Aide II 5-Jun-01
40. Anna Lee Estrabela Job Order Cash Clerk III 5-Jun-01
41. Melchor Maquiling Job Order Engineer I 7-Jun-01
42. Raul Molas Job Order Construction and 7-Jun-01
Maintenance
Foreman
43. Oscar Kinikito Job Order Electrician II 7-Jun-01
44. Darwin Conejos Job Order Engineering Aide 7-Jun-01
45. Romel Cual Job Order Metro Aide II 11-Jun-01
46. Roqueta Amor Job Order Dental Aide 5-Jun-01
47. Diosdado Lajato Job Order Pest Control Worker 5-Jun-01
II
48. Paul Pino Job Order Utility Worker II 5-Jun-01
49. Lito Piñero Job Order Metro Aide II 11-Jun-01

22 | P a g e
 50. Rodulfo Zosa, Jr. Job Order Metro Aide II 11-Jun-01
51. Jorge Arbolado Job Order Traffic Aide I 5-Jun-01
52. Ricardo M. Gonzales, Jr. OIC-General Asst. Dept. Head I 5-Jun-01
Services Officer

Ruling of the CSC en banc and the Court of Appeals

On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and
affirming the invalidation of their appointments on the ground that these were mass appointments made by
an outgoing local chief executive.10 The Commission explained:

The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The
prohibition is designed to discourage losing candidates from extending appointments to their protégés or
from giving their constituents "promised" positions (CSC Resolution No. 97-0317 dated January 17, 1997,
Re: Roldan B. Casinillo). Moreover, the same is intended to prevent the outgoing local chief executive from
hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any
means that would directly or indirectly circumvent the purposes for which said Resolution was promulgated
should not be allowed, particularly when the appointments were issued by the appointing authority who lost
in said election.

Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005,
through CSC Resolution No. 050473.

Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEB-
SP No. 00665. On August 28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution
No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, ratiocinating that:

The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the
nefarious practice by outgoing local chief executives in making appointments before, during, and/or after
the regular local elections for ulterior partisan motives. Said practice being analogous to "midnight
appointments" by the President or Acting President, the CSC then promulgated Resolution No. 010988, to
suppress the mischief and evils attributed to "mass appointments" made by local chief executives.

Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January
11, 2008.

The Parties’ Arguments

Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without
authority to issue regulations prohibiting mass appointments at the local government level. Petitioners cite
De Rama v. Court of Appeals11 which held that Section 15, Article VII of the Constitution is only applicable
to the President or Acting President. They claim that outgoing or defeated local appointing authorities are
authorized to make appointments of qualified individuals until their last day in office, and that not all mass
appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority
to take "final action" on all appointments, the Commission did not have any authority to disapprove the
appointments made by outgoing mayor Remollo.

23 | P a g e
In their Comment dated May 15, 2008,12 respondents argue that petitioners’ appointments violated civil
service rules and regulations other than CSC Resolution No. 010988. Respondents also assert that the
Commission is authorized to invalidate the petitioners’ appointments, because the CSC accreditation
program carried with it the caveat that "said exercise of authority shall be subject to Civil Service law, rules
and regulations." Finally, respondents claim that petitioners were guilty of forum shopping because the
issues in this case and in G.R. No. 177795 are the same.

Our Ruling

We find that the Civil Service Commission has the authority to issue CSC Resolution No. 010988 and that
the invalidation of petitioners’ appointments was warranted. Consequently, we affirm the Decision of the
Court of Appeals dated August 28, 2007 and its Resolution dated January 11, 2008 in CA-G.R. CEB-SP No.
00665.

The CSC has the authority to establish rules to promote efficiency in the civil service

The Commission, as the central personnel agency of the government,13 has statutory authority to establish
rules and regulations to promote efficiency and professionalism in the civil service. Presidential Decree No.
807,14 or the Civil Service Decree of the Philippines, provides for the powers of the Commission, including
the power to issue rules and regulations and to review appointments:

Section 9: Powers and functions of the Commission – The Commission shall administer the Civil Service and
shall have the following powers and functions:

xxxx

(b) Prescribe, amend, and enforce suitable rules and regulations for carrying into effect the
provisions of this Decree x x x

(c) Promulgate policies, standards, and guidelines for the Civil Service and adopt plans and
programs to promote economical, efficient, and effective personnel administration in the
government;

xxxx

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those
of presidential appointees, members of the armed forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required
qualifications; (Emphasis supplied)

Executive Order No. 292, or the Administrative Code of 1987, also provides:

Section 12: Powers and Functions – The Commission shall have the following powers and functions:

xxxx

(2) prescribe, amend, and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws;

24 | P a g e
 (3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and
programs to promote economical, efficient, and effective personnel administration in the
government;

(4) take appropriate action on all appointments and other personnel matters in the Civil
Service including extension of Service beyond retirement age;

(5) inspect and audit the personnel actions and programs of the departments, agencies,
bureaus, offices, local government units, and other instrumentalities of the government,
including government owned and controlled corporations. (emphasis supplied)

Clearly, the above-cited statutory provisions authorize the Commission to "prescribe, amend, and enforce"
rules to cover the civil service. The legislative standards to be observed and respected in the exercise of
such delegated authority are set out in the statutes, to wit: to promote "economical, efficient, and effective
personnel administration."

The Reasons behind CSC Resolution No. 010988

We also find that there was substantial reason behind the issuance of CSC Resolution No. 010988. It is true
that there is no constitutional prohibition against the issuance of "mass appointments" by defeated local
government officials prior to the expiration of their terms. Clearly, this is not the same as a "midnight
appointment," proscribed by the Constitution, which refers to those appointments made within two months
immediately prior to the next presidential election.15 As we ruled in De Rama v. Court of Appeals:16

The records reveal that when the petitioner brought the matter of recalling the appointments of the
fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that
these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution.
However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits local elective officials from making
appointments during the last days of his or her tenure.

However, even while affirming De Rama, we explained in Quirog v. Aumentado,17 that:

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind
the prohibition against midnight appointments may not be applied to those made by chief executives of local
government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude,
losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming
administration of the opportunity to make the corresponding appointments in line with its new policies.
(Emphasis supplied)

Quirog also involved the disapproval of an appointment for non-compliance with CSC Resolution No.
010988. However, we found that Quirog’s appointment was made on June 1, 2001, or three days prior to
the issuance of CSC Resolution No. 010988. As such, we ruled that the retroactive application of the law
was not warranted.

In Sales v. Carreon, Jr.,18 we had occasion to discuss the reasons behind the prohibition by the Commission
of mass appointments after the elections. Sales involved the issuance of 83 appointments made by then
Dapitan City Mayor Joseph Cedrick O. Ruiz in his last month of office (on June 1, 18, and 27, 2001), which
the newly elected Mayor, Rodolfo H. Carreon, subsequently revoked, on the ground that these violated CSC

25 | P a g e
Resolution No. 010988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on
issuing appointments in the civil service during the election period. In Sales, we declared:

This case is a typical example of the practice of outgoing local chief executives to issue "midnight"
appointments, especially after their successors have been proclaimed. It does not only cause animosities
between the outgoing and the incoming officials, but also affects efficiency in local governance. Those
appointed tend to devote their time and energy in defending their appointments instead of attending to
their functions.19

It is not difficult to see the reasons behind the prohibition on appointments before and after the elections.
Appointments are banned prior to the elections to ensure that partisan loyalties will not be a factor in the
appointment process, and to prevent incumbents from gaining any undue advantage during the elections.
To this end, appointments within a certain period of time are proscribed by the Omnibus Election Code and
related issuances.20 After the elections, appointments by defeated candidates are prohibited, except under
the circumstances mentioned in CSC Resolution No. 010988, to avoid animosities between outgoing and
incoming officials, to allow the incoming administration a free hand in implementing its policies, and to
ensure that appointments and promotions are not used as a tool for political patronage or as a reward for
services rendered to the outgoing local officials.

Not all Mass Appointments are Prohibited

Indeed, not all appointments issued after the elections by defeated officials are invalid. CSC Resolution No.
010988 does not purport to nullify all "mass appointments." However, it must be shown that the
appointments have undergone the regular screening process, that the appointee is qualified, that there is a
need to fill up the vacancy immediately, and that the appointments are not in bulk. In Nazareno v.
Dumaguete,21 we explained:

CSC Resolution No. 010988 does not totally proscribe the local chief executive from making any
appointments immediately before and after elections. The same Resolution provides that the validity of an
appointment issued immediately before and after elections by an outgoing local chief executive is to be
determined on the basis of the nature, character, and merit of the individual appointment and the particular
circumstances surrounding the same.

Corollarily, we held in Sales,22 that:

x x x [e]ach appointment must be judged on the basis of the nature, character, and merits of the individual
appointment and the circumstances surrounding the same. It is only when the appointments were made en
masse by the outgoing administration and shown to have been made through hurried maneuvers and under
circumstances departing from good faith, morality, and propriety that this Court has struck down "midnight"
appointments.

In the instant case, Mayor Remollo issued the 89 original and promotional appointments on three separate
dates, but within a ten-day period, in the same month that he left office.23 Further, the Commission’s audit
found violations of CSC rules and regulations that justified the disapproval of the appointments. In this
regard, CSC Memorandum Circular No. 40, otherwise known as the Revised Rules on Appointments and
Other Personnel Actions, provides:

Section 1 – Appointments submitted to the CSC office concerned should meet the requirements listed
hereunder. Non-compliance with such requirements shall be grounds for disapproval of said appointments:

26 | P a g e
xxxx

(h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by
the PSB, if applicable. As proof thereof, a certification signed by the Chairman of the Board at the back of
the appointment or alternatively, a copy of the proceedings/ minutes of the Board’s deliberation shall be
submitted together with the appointment. The issuance of the appointment shall not be earlier than the
date of the final screening/deliberation of the PSB.

Here, there was only one en banc meeting of the city PSB to consider the appointments, without any
evidence that there were any deliberations on the qualifications of the petitioners, or any indication that
there was an urgent need for the immediate issuance of such appointments. The absence of evidence
showing careful consideration of the merits of each appointment, and the timing and the number of
appointments, militate against petitioners’ cause. On the contrary, the prevailing circumstances in this case
indicate that the appointments were hurriedly issued by the outgoing administration.

The Accreditation of Dumaguete City did not remove the CSC’s authority to review appointments

We find that the authority granted by CSC Resolution No. 992411 to the City Government of Dumaguete to
"take final action" on all its appointments did not deprive the Commission of its authority and duty to review
appointments. Indeed, Resolution No. 992411 states that such exercise of authority shall be "subject to civil
service law, rules and regulations" and that appointments in violation of pertinent rules "shall immediately
be invalidated."

Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292
provides that notwithstanding the initial approval of an appointment, the same may be recalled for
"[v]iolation of other existing Civil Service laws, rules and regulations." The CSC is empowered to take
appropriate action on all appointments and other personnel actions and that such power "includes the
authority to recall an appointment initially approved in disregard of applicable provisions of Civil Service law
and regulations."24

Petitioners have not engaged in forum shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause
of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.25 Forum-
shopping has been defined as the act of a party against whom an adverse judgment has been rendered in
one forum, seeking and possibly getting a favorable opinion in another forum, other than by appeal or the
special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would make a favorable disposition.26

Although the factual antecedents of the cases brought before this Court are the same, they involve different
issues. The petition for Mandamus with Injunction and Damages, docketed as Civil Case No. 13013, and
raised before this Court as G.R. No. 177795, challenged respondents’ refusal to recognize petitioners’
appointments and to pay petitioners’ salaries, salary adjustments, and other emoluments. The petition only
entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present
case docketed as G.R. No. 181559, on the other hand, involves the merits of petitioners’ appeal from the
invalidation and revocation of their appointments by the CSC-Field Office, which was affirmed by the CSC-
Regional Office, CSC en banc, and the Court of Appeals.

27 | P a g e
In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which
found petitioners not guilty of forum shopping, to wit:

True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are
not necessarily the same for this Court to adjudge that the filing of both by petitioners constitutes forum
shopping. In G.R. No. 181559, the Court will resolve whether or not the petitioners’ appointments are valid.
[In G.R. No. 177795], petitioners are claiming a right to the salaries, salary adjustments and other
emoluments during the pendency of the administrative cases, regardless of how the CSC decided the
validity of their appointments.

WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals’ Decision in CA-G.R. CEB-SP
No. 00665 dated August 28, 2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC
Resolution No. 050473 dated April 11, 2005, and its Resolution dated January 11, 2008 denying the Motion
for Reconsideration are AFFIRMED.

SO ORDERED.

28 | P a g e
 EN BANC

TEODULO V. LARGO, G.R. No. 177244

vs

THE COURT OF APPEALS, THE

CIVIL SERVICE COMMISSION, THE

NATIONAL POWER CORPORATION

and ALAN OLANDESCA, Promulgated:

Respondents.

November 20, 2007

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

Assailed in this petition for reviewxiv is the March 23, 2007 Decisionxiv of the Court of Appeals
in CA-G.R. SP No. 84984 which affirmed the July 4, 2003 Resolutionxiv of the Civil Service Commission
(CSC) finding petitioner guilty of grave misconduct and imposing upon him the penalty of dismissal
from service.

29 | P a g e
 On December 17, 1997, petitioner Teodulo V. Largo, Section Chief, Administrative/General
Services of the National Power Corporation (NPC) in Angat River Hydroelectric Power Plant (ARHEP),
Norzagaray, Bulacan, was administratively charged with grave misconduct, conduct prejudicial to the
best interest of the service, oppression, or unlawful exercise of power by an officer or employee as to
harm anyone in his person or property while purporting to act under the color of authority and willfull
violation of NPC Circular No. 97-66, which prohibits personnel from carrying firearms inside the NPC
premises. These charges were based on the complaint filed by Alan A. Olandesca (Olandesca), former
property officer of the NPC at ARHEP.

The NPC investigation revealed that on October 30, 1997, petitioner and Olandesca attended
a birthday party where petitioner claimed to have been humiliated by Olandesca who threw a piece
of paper at him and shouted, Ikaw ang magnanakaw. At around 5:05 in the afternoon of the same
day, petitioner went to the quarters of Olandesca at ARHEP shouting invectives and threatening to kill
Olandesca. Petitioner proceeded to the dirty kitchen at the back of the quarters where he met
Olandescas wife. While they were conversing, a dog suddenly appeared and barked at petitioner.
Claiming to have been frightened by the incessant barking of the dog which was about to attack him,
petitioner fired two shots which scared the wife of Olandesca, as well as his 2 children, sister-in-law
and mother-in law who were then gathered at the dirty kitchen. The first shot hit the flooring, while
the other hit the water hose. Unable to find Olandesca, petitioner left the compound.xiv

Meanwhile, petitioner retired from service effective January 1, 1998 under the NPC SDP
Retirement Plan.xiv

On March 19, 1998, the NPC Regional Board of Inquiry & Discipline conducted a pre-hearing
conference. On motion of Olandesca, the NPC President approved the transfer of the formal
investigation to the Board of Inquiry and Discipline of the NPC Head Office, which recommended that
petitioner be held liable for simple misconduct with the minimum penalty of suspension for one month
and one day to two months.xiv
30 | P a g e
 In his Memorandumxiv dated January 3, 2001, President and Chief Executive Officer Federico
Puno found petitioner guilty of grave misconduct and imposed upon him the penalty of dismissal from
service.

On petitioners motion for reconsideration, NPC President Jesus N. Alcordo reduced the penalty
to one year suspension, taking into consideration that this was petitioners first offense, the absence
of physical harm caused by the shots he fired, his 21 years of service, his consistent very satisfactory
performance, and Olandescas act of humiliating him prior to the incident. Considering, however, the
retirement of petitioner, the NPC directed the execution of the penalty by deducting an amount
equivalent to one year suspension without pay, from his retirement benefits.xiv

Petitioner appealed to the CSC which on July 4, 2003, affirmed the finding of the NPC that
petitioner was guilty of grave misconduct but modified the penalty to dismissal from service. The
dispositive portion of the CSC Resolution, provides:

WHEREFORE, the appeal of Teodulo V. Largo from the Decision dated August
15, 2001 of National Power Corporation President Jesus N. Alcordo, finding him guilty
of Grave Misconduct, is DISMISSED. The penalty of one-year suspension to be
executed by deducting an amount equivalent to one-year salary from the retirement
benefits of Largo is hereby MODIFIED to dismissal from service. Largos dismissal from
the service carries with it cancellation of eligibility, forfeiture of retirement benefits and
perpetual disqualification for re-employment in the government service.xiv

On June 21, 2004, the CSC denied petitioners motion for reconsideration in Resolution No.
040690.xiv

On petition with the Court of Appeals, the latter rendered a decision affirming the Resolution
of the CSC. The decretal portion thereof provides:
31 | P a g e
 WHEREFORE, the instant petition is DENIED and the assailed Orders of the
Civil Service Commission dated July 4, 2003 and June 21, 2004 are AFFIRMED.

SO ORDERED.xiv

Hence, the instant petition.

Petitioner contends that the administrative case against him should be dismissed, the same
having been rendered academic by his retirement from service. He further claims that there is no case
against him and, assuming that he is guilty of an administrative offense, his liability could only be for
simple misconduct. Petitioner further prays for the imposition of a lighter penalty instead of dismissal
from service.

The issues for resolution are: (1) whether the retirement of petitioner rendered moot the
resolution of the instant administrative case; and (2) whether petitioner was validly dismissed for
serious misconduct.

The settled rule in this jurisdiction is that cessation from office by reason of resignation,xiv
death, or retirementxiv does not warrant the dismissal of the administrative case filed against a
public officer while he or she was still in the service, or render the said case academic. The
jurisdiction of the disciplining authority attaches at the time of the filing of the administrative
complaint and is not lost by the mere fact that the respondent public official had ceased to be in
office during the pendency of his case. This rule applies to all employees in the civil service,xiv
mindful of the constitutional precept that public office is a public trust for which all government
employees and officials are accountable to the people. The rationale for this doctrine, as applied to
government employees and officials in the judiciary, was explained in Perez v. Abieraxiv in this wise:

[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint
was not lost by the mere fact that the respondent public official had ceased to be in
32 | P a g e
 office during the pendency of his case. The Court retains jurisdiction either to
pronounce the respondent official innocent of the charges or declare him guilty
thereof. A contrary rule would be fraught with injustices and pregnant with dreadful
and dangerous implications. For, what remedy would the people have against a civil
servant who resorts to wrongful and illegal conduct during his last days in office? What
would prevent a corrupt and unscrupulous government employee from committing
abuses and other condemnable acts knowing fully well that he would soon be beyond
the pale of the law and immune to all administrative penalties? If only for reasons of
public policy, this Court must assert and maintain its jurisdiction over members of the
judiciary and other officials under its supervision and control for acts performed in
office which are inimical to the service and prejudicial to the interests of litigants and
the general public. If innocent, respondent official merits vindication of his name and
integrity as he leaves the government which he served well and faithfully; if guilty, he
deserves to receive the corresponding censure and a penalty proper and imposable
under the situation.

The retirement of petitioner effective January 1, 1998, did not render moot the instant case.
The filing of the administrative complaint against petitioner on December 17, 1997, prior to his
retirement, effectively conferred upon the NPC, the CSC, and this Court, the jurisdiction to resolve the
case until its conclusion. Hence, the guilt or innocence of petitioner can be validly addressed by the
Court in the instant administrative case.

Anent the acts constituting the administrative charge, we find that the positive and categorical
declarations of Olandescas witnessesxiv prevail over the negative allegation of petitioner that he did
not utter threatening words when he went to the quarters of Olandesca. It is settled that denial is
inherently a weak defense. To be believed, it must be buttressed by a strong evidence of non-
culpability; otherwise, such denial is purely self-serving and without evidentiary value.xiv Like the
defense of alibi, petitioners denial crumbles in the light of the positive declarations of the witnesses
that petitioner uttered threats to kill Olandesca. It was established that petitioner entered the ARHEP,
proceeded to Olandescas quarters, specifically to the dirty kitchen where the wife, two children, sister-
in-law, and mother-in-law of Olandesca were gathered. Thereat, petitioner fired his gun twice and
hurled threats to kill Olandesca. His acts of entering the quarters without permission, hurling threats,
and discharging a gun, even assuming that the same were merely to scare a dog, are blatant displays
of arrogance and recklessness and do not speak well of his character as a public officer.

33 | P a g e
 However, the administrative offense committed by petitioner is not misconduct. To constitute
misconduct, the act or acts must have a direct relation to and be connected with the performance of
his official duties. In Manuel v. Calimag, Jr.,xiv it was held that:

Misconduct in office has been authoritatively defined by Justice Tuazon in

Lacson v. Lopez in these words: Misconduct in office has a definite and well-
understood legal meaning. By uniform legal definition, it is a misconduct such as
affects his performance of his duties as an officer and not such only as affects his
character as a private individual. In such cases, it has been said at all times, it is
necessary to separate the character of the man from the character of the officer x x x
x It is settled that misconduct, misfeasance, or malfeasance warranting removal from
office of an officer must have direct relation to and be connected with the performance
of official duties amounting either to maladministration or willful, intentional neglect
and failure to discharge the duties of the office x x x More specifically, in Buenaventura
v. Benedicto, an administrative proceeding against a judge of the court of first
instance, the present Chief Justice defines misconduct as referring to a transgression
of some established and definite rule of action, more particularly, unlawful behavior or
gross negligence by the public officer.

xxxx

In Salcedo v. Inting we also ruled

It is to be noted that the acts of the respondent judge complained of have no

direct relation with his official duties as City Judge. The misfeasance or malfeasance
of a judge, to warrant disciplinary action must have direct relation to and be connected
with the performance of official duties amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties of said judge.

In Milanes v. De Guzman,xiv a mayor collared a person, shook him violently, and threatened
to kill him in the course of a political rally of the Nacionalista Party where said mayor was acting as
the toastmaster. The Court held that the acts of the mayor cannot come under the class of the
administrative offense of misconduct, considering that as the toastmaster in a non-governmental rally,
he acted in his private capacity, for said function was not part of his duties as mayor. In Amosco v.
Magro,xiv the respondent Judge was charged with grave misconduct for his alleged failure to pay the
amount of P215.80 for the purchase of empty Burma sacks. In dismissing the case, the Court
sustained, among others, the argument of respondent Judge that the charge did not constitute
misconduct because it did not involve the discharge of his official duties. It was further held that
misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it
34 | P a g e
is a misconduct such as affects his performance of his duties as an officer and not such only as affects
his character as a private individual. So also, a Judges abandonment of, and failure to give support to
his family;xiv and alleged sale of carnapped motor vehicles,xiv do not fall within the species of
misconduct, not being related to the discharge of official functions.

In the instant case, it was not proven that petitioners acts of trespassing in the quarters,
threatening to kill Olandesca, and firing his gun, were related to, or performed by petitioner by taking
advantage of his functions as Section Chief, Administrative/General Services. In fact, Olandesca
argued that the authority to carry a gun inside NPC premises was not among the powers vested in
petitioner. Also, it was not established that the gun used by petitioner was issued by the NPC. Evidence
reveals that the position of petitioner is not among those vested with authority to carry a gun in the
premises of the NPC. His act of entering the NPC ARHEP carrying a firearm was in violation of NPC
Circular No. 97-66 dated August 6, 1997. Under said circular, only those directly involved in the
security of an installation shall be allowed to enter the premises with their firearm. Moreover, it was
never alleged or proven that petitioner could not have gained access to Olandescas quarters were it
not for his position. In administrative proceedings, the burden of proving the acts complained of,xiv
particularly the relation thereof to the official functions of the public officer, rests on the complainant.
This, Olandesca failed to discharge. The inevitable conclusion therefore is that petitioner acted in his
private capacity, and hence, cannot be held liable for misconduct, which must have a direct relation
to and be connected with the performance of official duties.

Nevertheless, the complained acts of petitioner constitute the administrative offense of

conduct prejudicial to the best interest of the service, which need not be related or connected to the
public officers official functions. As long as the questioned conduct tarnished the image and integrity
of his/her public office, the corresponding penalty may be meted on the erring public officer or
employee. The Code of Conduct and Ethical Standards for Public Officials and Employees (Republic
Act No. 6713) enunciates, inter alia, the State policy of promoting a high standard of ethics and utmost
responsibility in the public service. Section 4 (c) of the Code commands that [public officials and
employees] shall at all times respect the rights of others, and shall refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public safety and public interest. By his
actuations, petitioner failed to live up to such standard.
35 | P a g e
 In Cabalitan v. Department of Agrarian Reform,xiv the Court sustained the ruling of the CSC
that the offense committed by the employee in selling fake Unified Vehicular Volume Program
exemption cards to his officemates during office hours was not grave misconduct, but conduct
prejudicial to the best interest of the service. In Mariano v. Roxas, xiv the Court held that the offense
committed by a Court of Appeals employee in forging some receipts to avoid her private contractual
obligations, was not misconduct but conduct prejudicial to the best interest of the service because her
acts had no direct relation to or connection with the performance of official duties. Then too, the Court
considered the following conduct as prejudicial to the best interest of the service, to wit: a Judges act
of brandishing a gun and threatening the complainants during a traffic altercation;xiv and a court
interpreters participation in the execution of a document conveying complainants property which
resulted in a quarrel in the latters family.xiv

In sum, we find petitioner guilty of conduct prejudicial to the best interest of the service, which
under Section 52 of Rule IV of Civil Service Commission Memorandum Circular No. 19, series of 1999,
is classified as a grave administrative offense punishable by suspension of six (6) months and 1 day
to one (1) year if committed for the first time.

Considering the retirement of petitioner, the penalty of suspension is no longer viable. Thus,
in lieu of suspension, the penalty of fine equivalent to his salary for a period of six (6) months may be
imposed. This ruling is in line with Section 19 of the Omnibus Rules Implementing Book V of Executive
Order No. 292,xiv which provides:

The penalty of transfer, or demotion, or fine may be imposed instead of

suspension from one month and one day to one year except in case of fine which shall
not exceed six months.

WHEREFORE, the petition is PARTIALLY GRANTED. The March 23, 2007 Decision of the
Court of Appeals in CA-G.R. SP No. 84984 affirming the July 4, 2003 Resolution of the Civil Service
36 | P a g e
Commission finding petitioner guilty of grave misconduct and imposing upon him the penalty of
dismissal is REVERSED and SET ASIDE. Petitioner is declared GUILTY of conduct prejudicial to the
best interest of the service and is directed to pay a FINE equivalent to his salary for six (6) months,
to be deducted from his retirement benefits.

EN BANC

G.R. No. 178021

REPUBLIC OF THE PHILIPPINES, represented by the CIVIL SERVICE COMMISSION,

vs

MINERVA M.P. PACHEO,

Promulgated: January 25, 2012

DECISION

MENDOZA, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed
by petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG),
which assails the February 22, 2007 Decisionxiv and the May 15, 2007 Resolutionxiv of the Court of
Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the November 21, 2005 Resolution of the
Civil Service Commission (CSC) declaring the re-assignment of respondent Minerva M.P. Pacheos
(Pacheo) not valid and ordering her reinstatement to her original station but without backwages under
the principle of no work, no pay.

The Facts

37 | P a g e
 Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of
Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.

On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-
2002,xiv ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7 in Quezon
City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue service as basis for
the issuance of the said RTAO.

Pacheo questioned the reassignment through her Letter dated May 9, 2002xiv
addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the
transfer would mean economic dislocation since she would have to spend ₱200.00 on daily travel
expenses or approximately ₱4,000.00 a month. It would also mean physical burden on her part as
she would be compelled to wake up early in the morning for her daily travel from Quezon City to San
Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga to Quezon
City. She was of the view that that her reassignment was merely intended to harass and force her out
of the BIR in the guise of exigencies of the revenue service. In sum, she considered her transfer from
Quezon City to Pampanga as amounting to a constructive dismissal.

Due to the then inaction of the BIR, Pacheo filed a complaintxiv dated May 30, 2002,
before the CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-2002.
In its July 22, 2002 Order,xiv the CSC-NCR treated Pacheos Complaint as an appeal and dismissed the
same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b) of the Uniform
Rules on Administrative Cases in the Civil Service.xiv

In its Letter-replyxiv dated September 13, 2002, the BIR, through its Deputy Commissioner
for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheos protest for lack of
merit. It contended that her reassignment could not be considered constructive dismissal as she
maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal
38 | P a g e
Division. It emphasized that her appointment to the position of Revenue Attorney IV was without a
specific station. Consequently, she could properly be reassigned from one organizational unit to
another within the BIR. Lastly, she could not validly claim a vested right to any specific station, or a
violation of her right to security of tenure.

Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.

On November 21, 2005, the CSC issued Resolution No. 051697xiv granting Pacheos appeal,
the dispositive portion of which reads:

WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby

GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No.
25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division
Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID.
ACCORDINGLY, Pacheo should now be recalled to her original station. This
Commission, however rules and so holds that the withholding by the BIR of Pacheos
salary for the period she did not report to work is justified.

The CSCRO No. III is directed to monitor the implementation of this Resolution.

In granting Pacheos appeal, the CSC explained:

On the second issue, this Commission finds merit in appellants contention that
her reassignment in not valid.

Of pertinent application thereto is Rule III, Section 6 of CSC

Memorandum Circular No. 40, series of 1998, dated December 14, 1998,
which provides:

Section 6. Other Personnel Movements. The following

personnel movements which will not require issuance of an
appointment shall nevertheless require an office order by duly
authorized official.

a. Reassignment Movement of an employee from one

organizational unit to another in the same department or agency which
39 | P a g e
 does not involve reduction in rank, status or salary. If reassignment is
done without consent of the employee being reassigned it shall be
allowed for a maximum period of one year. Reassignment is presumed
to be regular and made in the interest of public service unless proven
otherwise or it constitutes constructive dismissal.

No assignment shall be undertaken if done indiscriminately or

whimsically because the law is not intended as a convenient shield for
the appointing/ disciplining authority to harass or oppress a
subordinate on the pretext of advancing and promoting public interest.

Reassignment of small salaried employee is not permissible if

it causes significant financial dislocation.

Although reassignment is a management prerogative, the same must be done

in the exigency of the service without diminution in rank, status and salary on the part
of the officer or employee being temporarily reassigned. Reassignment of small
salaried employees, however is not allowed if it will cause significant financial
dislocation to the employee reassigned. Otherwise the Commission will have to
intervene.

The primary purpose of emphasizing small salaried employees in the foregoing

rule is to protect the rank and file employees from possible abuse by the management
in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51
O.G. 2452) ruled:

x x x [T]he protection against invalid transfer is especially

needed by lower ranking employees. The Court emphasized this need
when it ruled that officials in the unclassified service, presidential
appointees, men in the government set up occupy positions in the
higher echelon should be entitled to security of tenure, unquestionable
a lesser sol[ci]itude cannot be meant for the little men, that great mass
of Common underprivileged employees-thousand there are of them in
the lower bracket, who generally are without connections and who pin
their hopes of advancement on the merit system instituted by our civil
service law.

In other words, in order to be embraced in the term small-salaried employees,

the latter must belong to the rank and file; and, his/her salary would be significantly
reduced by virtue of the transfer/reassignment. Rank and file was categorized as those
occupying the position of Division Chief and below, pursuant to CSC Resolution No.
1, series of 1991, dated January 28, 1991.

The facts established on record show that Pacheo belongs to the rank and file
receiving an average monthly salary of Twenty Thousand Pesos (₱20,000.00) under
the salary standardization law and a monthly take home pay of Fourteen Thousand
Pesos (₱14,000.00). She has to spend around Four Thousand Pesos (₱4,000.00) a
month for her transportation expenses as a consequence of her reassignment, roughly
twenty eight percent (28%) of her monthly take home pay. Clearly, Pacheos salary
shall be significantly reduced as a result of her reassignment.

40 | P a g e
 In ANORE, Ma. Theresa F., this Commission ruled:

Anore, a lowly salaried employee, was reassigned to an

isolated island 15 kilometers away from her original place of
assignment. She has to travel by boat with only one trip a day to report
to her new place of assignment in an office without any facilities,
except its bare structure. Worst, the municipality did not provide her
with transportation allowance. She was forced to be separated from
her family, look for a boarding house where she can stay while in the
island and spend for her board and lodging. The circumstances
surrounding Anores reassignment is exactly the kind of reassignment
that is being frowned upon by law.

This Commission, however, rules and so holds that the withholding by the BIR
of her salaries is justified as she is not entitled thereto since she is deemed not to have
performed any actual work in the government on the principle of no work no pay.

Accordingly, Pacheo should now be reinstated to her original station without

any right to claim back salary as she did not report to work either at her new place of
assignment or at her original station.xiv [Emphases in the original]

Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in not
finding that she was constructively dismissed and, therefore, entitled to back salary.

On March 7, 2006, the CSC issued Resolution No. 060397xiv denying Pacheos motion for
reconsideration.

Undaunted, Pacheo sought recourse before the CA via a petition for review.

In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor of
Pacheo, the fallo of which states:
41 | P a g e
 WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397
dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service
Commission are REVERSED and SET ASIDE. A new judgment is hereby entered
finding petitioner to have been constructively dismissed and ordering her immediate
reinstatement with full backwages and benefits.

SO ORDERED.xiv

In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:

While this Court agrees that petitioners reassignment was not valid considering
that a diminution in salary is enough to invalidate such reassignment, We cannot agree
that the latter has not been constructively dismissed as a result thereof.

It is well to remember that constructive dismissal does not always involve

forthright dismissal or diminution in rank, compensation, benefits and privileges. For
an act of clear discrimination, insensibility, or disdain by an employer may become so
unbearable on the part of the employee that it could foreclose any choice by him
except to forgo his continued employment.

The management prerogative to transfer personnel must be exercised without

grave abuse of discretion and putting to mind the basic elements of justice and fair
play. The employer must be able to show that the transfer is not unreasonable,
inconvenient, or prejudicial to the employee.

In this case, petitioners reassignment will result in the reduction of her salary,
not to mention the physical burden that she would suffer in waking up early in the
morning to travel daily from Quezon City to San Fernando, Pampanga and in coming
home late at night.

Clearly, the insensibility of the employer is deducible from the foregoing

circumstances and petitioner may have no other choice but to forego her continued
employment.

Moreover, it would be inconsistent to hold that the reassignment was not valid
due to the significant reduction in petitioners salary and then rule that there is no
constructive dismissal just because said reduction in salary will not render petitioner
penniless if she will report to her new place of assignment. It must be noted that there
is constructive dismissal when the reassignment of an employee involves a diminution
in pay.

42 | P a g e
 Having determined that petitioner has been constructively dismissed as a result
of her reassignment, We shall resolve whether or not she is entitled to backwages.

In denying petitioners claim for backwages, the CSC held:

This Commission, however, rules and so holds that the

withholding by the BIR of her salaries is justified as she is not entitled
thereto since she is deemed not to have performed any actual work in
the government on the principle of no work no pay.

Accordingly, Pacheo should now be reinstated to her original

station without any right to claim back salary as she did not report for
work either at her new place of assignment or at her original station.

Pacheo, while belonging to the rank-and-file employees, is

holding a responsible position as an Assistant Division Chief, who could
not just abandon her duties merely because she protested her re-
assignment and filed an appeal afterwards.

We do not agree.

If there is no work performed by the employee there can be no wage or pay,

unless of course the laborer was able, willing and ready to work but was illegally locked
out, dismissed or suspended. The No work, no pay principle contemplates a no work
situation where the employees voluntarily absent themselves.

In this case, petitioner was forced to forego her continued employment and
did not just abandon her duties. In fact, she lost no time in protesting her reassignment
as a form of constructive dismissal. It is settled that the filing of a complaint for illegal
dismissal is inconsistent with a charge of abandonment. The filing of the complaint is
proof enough of his desire to return to work, thus negating any suggestion of
abandonment.

Neither do we agree with the OSG when it opined that:

No one in the Civil Service should be allowed to decide on

whether she is going to accept or not any work dictated upon by the
exigency of the service. One should consider that public office is a
public trust and that the act of respondent CIR enjoys the presumption
of regularity. To uphold the failure of respondent to heed the RTAO
would result in chaos. Every employee would put his or her vested
interest or personal opinion over and above the smooth functioning of
the bureaucracy.

Security of tenure is a right of paramount value as recognized and guaranteed

under Sec. 3, Art. XIII of the 1987 Constitution.

43 | P a g e
 The State shall afford full protection to labor, xxx and promote
full employment and equality of employment opportunities for all. It
shall guarantee the rights of all workers to xxx security of tenure xxx

Such constitutional right should not be denied on mere speculation of any

similar unclear and nebulous basis.

In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSGs opinion
that when the transfer is motivated solely by the interest of the service of such act
cannot be considered violative of the Constitution, thus:

We do not agree to this view. While temporary transfers or

assignments may be made of the personnel of a bureau or department
without first obtaining the consent of the employee concerned within
the scope of Section 79 (D) of the Administrative Code which party
provides that The Department Head also may, from time to time, in
the interest of the service, change the distribution among the several
Bureaus and offices of his Department of the employees or
subordinates authorized by law, such cannot be undertaken when the
transfer of the employee is with a view to his removal. Such cannot be
done without the consent of the employee. And if the transfer is
resorted to as a scheme to lure the employee away from his permanent
position, such attitude is improper as it would in effect result in a
circumvention of the prohibition which safeguards the tenure of office
of those who are in the civil service. It is not without reason that this
Court made the following observation:

To permit circumvention of the constitutional prohibition in question

by allowing removal from office without lawful cause, in the form or
guise of transfers from one office to another, or from one province to
another, without the consent of the transferee, would blast the hopes
of these young civil service officials and career men and women,
destroy their security and tenure of office and make for a subservient,
discontented and inefficient civil service force that sways with every
political wind that blows and plays up to whatever political party is in
the saddle. That would be far from what the framers of our
Constitution contemplated and desired. Neither would that be our
concept of a free and efficient Government force, possessed of self-
respect and reasonable ambition.

Clearly, the principle of no work, no pay does not apply in this case. As held in
Neeland v. Villanueva, Jr:

We also cannot deny back salaries and other economic benefits

on the ground that respondent Clerk of Court did not work. For the
principle of no work, no pay does not apply when the employee himself
was forced out of job. Xxx Indeed, it is not always true that back
salaries are paid only when work is done. Xxx For another, the poor
employee could offer no work since he was forced out of work. Thus,
44 | P a g e
 to always require complete exoneration or performance of work would
ultimately leave the dismissal uncompensated no matter how grossly
disproportionate the penalty was. Clearly, it does not serve justice to
simply restore the dismissed employee to his position and deny him
his claim for back salaries and other economic benefits on these
grounds. We would otherwise be serving justice in halves.

An illegally dismissed government employee who is later ordered reinstated is

entitled to back wages and other monetary benefits from the time of his illegal
dismissal up to his reinstatement. This is only fair and sensible because an employee
who is reinstated after having been illegally dismissed is considered as not having left
his office and should be given a comparable compensation at the time of his
reinstatement.

When a government official or employee in the classified civil service had been
illegally dismissed, and his reinstatement had later been ordered, for all legal purposes
he is considered as not having left his office, so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held.xiv

The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007
Resolution.

Hence, this petition.

THE ISSUES

WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN

DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND
ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENTS REFUSAL
TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY
EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.

WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY

IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR
No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE
ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT
FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO,
PAMPANGA.xiv
45 | P a g e
 In her Memorandum,xiv Pacheo asserts that RTAO No. 25-2002, on the pretense of the
exigencies of the revenue service, was solely meant to harass her and force her to resign. As a result
of her invalid reassignment, she was constructively dismissed and, therefore, entitled to her back
salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.

In its own Memorandum,xiv the CSC, through the OSG, argues that constructive dismissal is
not applicable in this case because it was Pacheo herself who adamantly refused to report for work
either in her original station or new place of assignment in clear violation of Section 24 (f) of
Presidential Decree (PD) No. 807.xiv Citing jurisprudence,xiv the CSC avers that the RTAO is
immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have first
reported to her new place of assignment and then appealed her case to the CSC if she indeed believed
that there was no justification for her reassignment. Since Pacheo did not report for work at all, she
is not entitled to backwages following the principle of no work, no pay.

THE COURTS RULING

The petition fails to persuade.

It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum,
the OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheos reassignment from
Quezon City to San Fernando, Pampanga. Later, however, it specifically prays for the reinstatement
of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO No. 25-2002 as not
valid. In seeking such relief, the OSG has effectively accepted the finding of the CSC, as affirmed by
the CA, that Pacheos reassignment was indeed invalid. Since the issue of Pacheos reassignment is
already settled, the Court finds it futile to pass upon the same at this point.

46 | P a g e
 The question that remains to be resolved is whether or not Pacheos assignment constitutes
constructive dismissal and, thus, entitling her to reinstatement and backwages. Was Pacheo
constructively dismissed by reason of her reassignment?

The Court agrees with the CA on this point.

While a temporary transfer or assignment of personnel is permissible even without the

employee's prior consent, it cannot be done when the transfer is a preliminary step toward his removal,
or a scheme to lure him away from his permanent position, or when it is designed to indirectly
terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision
which safeguards the tenure of office of those who are in the Civil Service.xiv

Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of 1998, defines
constructive dismissal as a situation when an employee quits his work because of the agency heads
unreasonable, humiliating, or demeaning actuations which render continued work impossible. Hence,
the employee is deemed to have been illegally dismissed. This may occur although there is no
diminution or reduction of salary of the employee. It may be a transfer from one position of dignity to
a more servile or menial job.

The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work
either in her original station in Quezon City or her new place of assignment in San Fernando, Pampanga
negates her claim of constructive dismissal in the present case being in violation of Section 24 (f) of
P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6)].xiv It
further argues that the subject RTAO was immediately executory, unless otherwise ordered by the
CSC. It was, therefore, incumbent on Pacheo to have reported to her new place of assignment and
then appealed her case to the CSC if she indeed believed that there was no justification for her
reassignment.

47 | P a g e
 Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally
impossible for Pacheo to report to her original place of assignment in Quezon City considering that
the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as Assistant
Chief, Legal Division, from RR4, San Fernando, Pampanga to RR7, Quezon City, the very same position
Pacheo formerly held. The reassignment of Pagarigan to the same position palpably created an
impediment to Pacheos return to her original station.

The Court finds Itself unable to agree to CSCs argument that the subject RTAO was
immediately executory. The Court deems it necessary to distinguish between a detail and
reassignment, as they are governed by different rules.

A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter
5, Section 26 (6), thus:

(6) Detail. A detail is the movement of an employee from one agency to another
without the issuance of an appointment and shall be allowed, only for a limited period
in the case of employees occupying professional, technical and scientific positions. If
the employee believes that there is no justification for the detail, he may appeal his
case to the Commission. Pending appeal, the decision to detail the employee shall be
executory unless otherwise ordered by the Commission. [Underscoring supplied]

On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1,
Subtitle A, Chapter 5, Section 26 (7), thus:

(7) Reassignment.An employee may be reassigned from one organizational unit to

another in the same agency; Provided, That such reassignment shall not involve a
reduction in rank, status or salaries. [Underscoring supplied]

The principal distinctions between a detail and reassignment lie in the place where the
employee is to be moved and in its effectivity pending appeal with the CSC. Based on the definition,
a detail requires a movement from one agency to another while a reassignment requires a movement
within the same agency. Moreover, pending appeal with the CSC, an order to detail is immediately
executory, whereas a reassignment order does not become immediately effective.

48 | P a g e
 In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division from
Quezon City to San Fernando, Pampanga within the same agency is undeniably a reassignment. The
OSG posits that she should have first reported to her new place of assignment and then subsequently
question her reassignment. It is clear, however, from E.O. 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (7) that there is no such duty to first report to the new place of assignment prior to
questioning an alleged invalid reassignment imposed upon an employee. Pacheo was well within her
right not to report immediately to RR4, San Fernando, Pampanga, and to question her reassignment.

Reassignments involving a reduction in rank, status or salary violate an employees security of

tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil
Service Rules and Regulations. Security of tenure covers not only employees removed without cause,
but also cases of unconsented transfers and reassignments, which are tantamount to
illegal/constructive removal.xiv

The Court is not unaware that the BIR is authorized to assign or reassign internal revenue
officers and employees as the exigencies of service may require. This authority of the BIR, however,
should be prudently exercised in accordance with existing civil service rules.

Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement and
back wages? The Court agrees with the CA that she is entitled to reinstatement, but finds Itself unable
to sustain the ruling that she is entitled to full back wages and benefits. It is a settled jurisprudencexiv
that an illegally dismissed civil service employee is entitled to back salaries but limited only to a
maximum period of five (5) years, and not full back salaries from his illegal dismissal up to his
reinstatement.

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision and May 15,
2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are hereby AFFIRMED with
MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered reinstated without loss of

49 | P a g e
seniority rights but is only entitled to the payment of back salaries corresponding to five (5) years
from the date of her invalid reassignment on May 7, 2002.

Republic of the Philippines

Supreme Court

Manila

EN BANC

THE CIVIL SERVICE G.R. No. 187858

COMMISSION,
vs

RICHARD G. CRUZ
AUGUST 9, 2011

DECISION

BRION, J.:

This petition for review on certiorari assails the decisionxiv and the resolutionxiv of the Court
of Appeals (CA) in CA-G.R. SP No. 105410. These assailed CA rulings reversed and set aside the ruling
of the Civil Service Commission (CSC) in Resolution No. 080305xiv that denied respondent Richard G.
Cruzs prayer for the award of back salaries as a result of his reinstatement to his former position.

THE FACTS

The respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged
with grave misconduct and dishonesty by CMWD General Manager (GM) Nicasio Reyes. He allegedly
uttered a false, malicious and damaging statement (Masasamang tao ang mga BOD at General
Manager) against GM Reyes and the rest of the CMWD Board of Directors (Board); four of the
respondents subordinates allegedly witnessed the utterance. The dishonesty charge, in turn, stemmed

50 | P a g e
from the respondents act of claiming overtime pay despite his failure to log in and out in the
computerized daily time record for three working days.

The respondent denied the charges against him. On the charge of grave misconduct, he
stressed that three of the four witnesses already retracted their statements against him. On the charge
of dishonesty, he asserted that he never failed to log in and log out. He reasoned that the lack of
record was caused by technical computer problems. The respondent submitted documents showing
that he rendered overtime work on the three days that the CMWD questioned.

GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his
preventive suspension, however, GM Reyes, with the approval of the CMWD Board, found the
respondent guilty of grave misconduct and dishonesty, and dismissed him from the service.xiv

CSC RULING

The respondent elevated the findings of the CMWD and his dismissal to the CSC, which
absolved him of the two charges and ordered his reinstatement. In CSC Resolution No. 080305, the
CSC found no factual basis to support the charges of grave misconduct and dishonesty.

In ruling that the respondent was not liable for grave misconduct, the CSC held:

Cruz was adjudged guilty of grave misconduct for his alleged utterance of such
maligning statements, MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER.
However, such utterance, even if it were true, does not constitute a flagrant disregard
of rule or was actuated by corrupt motive. To the mind of the Commission, it was a
51 | P a g e
 mere expression of disgust over the management style of the GM and the Board of
Directors, especially when due notice is taken of the fact that the latter officials were
charged with the Ombudsman for various anomalous transactions.xiv

In ruling that the charge of dishonesty had no factual basis, the CSC declared:

Based on the records of the case, the Commission is not swayed that the failure
of Cruz to record his attendance on April 21 and 22, 2007 and May 5, 2007, while
claiming overtime pay therefor, amounts to dishonesty. Cruz duly submitted evidence
showing his actual rendition of work on those days. The residents of the place where
he worked attested to his presence thereat on the days in question.xiv

The CSC, however, found the respondent liable for violation of reasonable office rules for his
failure to log in and log out. It imposed on him the penalty of reprimand but did not order the payment
of back salaries.

The CMWD and the respondent separately filed motions for reconsideration against the CSC
ruling. CMWD questioned the CSCs findings and the respondents reinstatement. The respondent, for
his part, claimed that he is entitled to back salaries in light of his exoneration from the charges of
grave misconduct and dishonesty. The CSC denied both motions.

Both the CMWD and the respondent elevated the CSC ruling to the CA via separate petitions
for review under Rule 43 of the Rules of Court. The CA dismissed the CMWDs petition and this ruling
has lapsed to finality.xiv Hence, the issue of reinstatement is now a settled matter. As outlined below,
the CA ruled in the respondents favor on the issue of back salaries. This ruling is the subject of the
present petition with us.

CA RULING

52 | P a g e
 Applying the ruling in Bangalisan v. Hon. CA,xiv the CA found merit in the respondents appeal
and awarded him back salaries from the time he was dismissed up to his actual reinstatement. The
CA reasoned out that CSC Resolution No. 080305 totally exonerated the respondent from the charges
laid against him. The CA considered the charge of dishonesty successfully refuted as the respondent
showed that he performed overtime service. The CA thereby rejected the CSCs contention that the
charge of dishonesty had been merely downgraded to a lesser offense; the CA saw the finding in CSC
Resolution No. 080305 to be for an offense (failing to properly record his attendance) entirely different
from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC Resolution
No. 080305 did not wholly restore the respondents rights as an exonerated employee as it failed to
order the payment of his back salaries. The CA denied the CSCs motion for reconsideration.

ISSUE

WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER

THE CSC ORDERED HIS REINSTATEMENT TO HIS FORMER POSITION,
CONSONANT WITH THE CSC RULING THAT HE WAS GUILTY ONLY OF VIOLATION
OF REASONABLE OFFICE RULES AND REGULATIONS.xiv

CSCs position

The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring as a condition
for entitlement to back salaries that the government employee be found innocent of the charge and
that the suspension be unjustified. CSC Resolution No. 080305 did not fully exculpate the respondent
but found him liable for a lesser offense. Likewise, the respondents preventive suspension pending
appeal was justified because he was not exonerated.

53 | P a g e
 The CSC also submits that the factual considerations in Bangalisan are entirely different from
the circumstances of the present case. In Bangalisan, the employee, Rodolfo Mariano, a public school
teacher, was charged with grave misconduct for allegedly participating, together with his fellow
teachers, in an illegal mass action. He was ordered exonerated from the misconduct charge because
of proof that he did not actually participate in the mass action, but was absent from work for another
reason. Although the employee was found liable for violation of office rules and regulations, he was
considered totally exonerated because his infraction stemmed from an act entirely different (his failure
to file a leave of absence) from the act that was the basis of the grave misconduct charge (the
unjustified abandonment of classes to the prejudice of the students).

The CSC argues that in the present case, the charge of dishonesty and the infraction
committed by the respondent stemmed from a single act his failure to properly record his attendance.
Thus, the respondent cannot be considered totally exonerated; the charge of dishonesty was merely
downgraded to a violation of reasonable office rules and regulations.

Accordingly, the CSC posits that the case should have been decided according to our rulings
in Jacinto v. CAxiv and De la Cruz v. CAxiv where we held the award of back salaries to be inappropriate
because the teachers involved were not fully exonerated from the charges laid against them.

The respondents position

The respondent maintains that he is entitled to reinstatement and back salaries because CSC
Resolution No. 080305 exonerated him from the charges laid against him; for the purpose of
entitlement to back salaries, what should control is his exoneration from the charges leveled against
him by the CMWD. That the respondent was found liable for a violation different from that originally
charged is immaterial for purposes of the back salary issue.

54 | P a g e
 The respondent also asserts that the Bangalisan ruling squarely applies since the CSC formally
admitted in its Comment to CMWDs petition for review before the CA that the penalty of reprimand is
not a reduced penalty for the penalty of dismissal imposable for grave misconduct and dishonesty.xiv

THE COURTS RULING

We deny the petition for lack of merit.

The issue of entitlement to back salaries, for the period of suspension pending appeal,xiv of a
government employee who had been dismissed but was subsequently exonerated is settled in our
jurisdiction. The Courts starting point for this outcome is the no work-no pay principle public officials
are only entitled to compensation if they render service. We have excepted from this general principle
and awarded back salaries even for unworked days to illegally dismissed or unjustly suspended
employees based on the constitutional provision that no officer or employee in the civil service shall
be removed or suspended except for cause provided by law;xiv to deny these employees their back
salaries amounts to unwarranted punishment after they have been exonerated from the charge that
led to their dismissal or suspension.xiv

The present legal basis for an award of back salaries is Section 47, Book V of the Administrative
Code of 1987.

Section 47. Disciplinary Jurisdiction. x x x.

(4) An appeal shall not stop the decision from being executory, and in case the penalty
is suspension or removal, the respondent shall be considered as having been under
preventive suspension during the pendency of the appeal in the event he wins an
appeal. (italics ours)

55 | P a g e
This provision, however, on its face, does not support a claim for back salaries since it does not
expressly provide for back salaries during this period; our established rulings hold that back salaries
may not be awarded for the period of preventive suspensionxiv as the law itself authorizes its
imposition so that its legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an employee may be
entitled to back salaries: a) the employee must be found innocent of the charges and b) his suspension
must be unjustified.xiv The reasoning behind these conditions runs this way: although an employee
is considered under preventive suspension during the pendency of a successful appeal, the law itself
only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed
period is unjustified and must be compensated.

The CSCs rigid and mechanical application of these two conditions may have resulted from a
misreading of our rulings on the matter; hence, a look at our jurisprudence appears in order.

Basis for award of back salaries

The Court had the occasion to rule on the issue of entitlement to back salaries as early as
1941,xiv when Section 260 of the Revised Administrative Code of 1917 (RAC)xiv was the governing
law. The Court held that a government employee, who was suspended from work pending final action
on his administrative case, is not entitled to back salaries where he was ultimately removed due to
the valid appointment of his successor. No exoneration or reinstatement, of course, was directly
involved in this case; thus, the question of back salaries after exoneration and reinstatement did not
directly arise. The Court, however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation

if he has not rendered any service, and the justification for the payment of
salary during the period of suspension is that the suspension was
56 | P a g e
 unjustified or that the official was innocent. Hence, the requirement that, to
entitle to payment of salary during suspension, there must be either reinstatement of
the suspended person or exoneration if death should render reinstatement
impossible.xiv (emphasis and underscoring ours)

In Austria v. Auditor General,xiv a high school principal, who was penalized with demotion,
claimed payment of back salaries from the time of his suspension until his appointment to the lower
position to which he was demoted. He argued that his later appointment even if only to a lower
position of classroom teacher amounted to a reinstatement under Section 260 of the RAC. The Court
denied his claim, explaining that the reinstatement under Section 260 of the RAC refers to the same
position from which the subordinate officer or employee was suspended and, therefore, does not
include demotional appointments. The word reinstatement was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojasxiv interpreting the same
provision, the Court first laid down the requisites for entitlement to back salaries. Said the Court:

A perusal of the decisions of this Courtxiv x x x show[s] that back salaries are
ordered paid to an officer or an employee only if he is exonerated of the
charge against him and his suspension or dismissal is found and declared to
be illegal. In the case at bar, [the employee] was not completely exonerated, because
although the decision of the Commissioner of Civil Service [ordering separation from
service] was modified and [the employee] was allowed to be reinstated, the decision
[imposed upon the employee the penalty of two months suspension without pay].
[emphasis and underscoring ours]

Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense
charged remained, but a lesser penalty was imposed.

In Villamor, et al. v. Hon. Lacson, et al.,xiv the City Mayor ordered the dismissal from the
service of city employees after finding them guilty as charged. On appeal, however, the decision was
modified by considering the suspension of over one year x x x, already suffered x x x [to be] sufficient
punishmentxiv and by ordering their immediate reinstatement to the service. The employees
thereupon claimed that under Section 695 of the RAC, the punishment of suspension without pay
57 | P a g e
cannot exceed two (2) months. Since the period they were not allowed to work until their
reinstatement exceeded two months, they should be entitled to back salaries corresponding to the
period in excess of two months. In denying the employees claim for back salaries, the Court held:

The fallacy of [the employees] argument springs from their assumption that the
modified decision had converted the penalty to that of suspension. The modified
decision connotes that although dismissal or resignation would be the proper penalty,
the separation from work for the period until their reinstatement, would be deemed
sufficient. Said decision did not, in the least, insinuate that suspension should have
been the penalty.

x x x [T]he modified decision did not exonerate the petitioners. x x x

And even if we consider the punishment as suspension, before a public official or
employee is entitled to payment of salaries withheld, it should be shown that the
suspension was unjustified or that the employee was innocent of the charges proffered
against him.xiv

On the whole, these rulings left the application of the conditions for the award of back salaries
far from clear. Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales
as under subsequent rulings, the innocence of the employee alone served as basis for the award of
back salaries.

The innocence of the employee as sole basis for an

award of back salaries

In Tan v. Gimenez, etc., and Aguilar, etc.,xiv we ruled that the payment of back salary to a
government employee, who was illegally removed from office because of his eventual exoneration on
appeal, is merely incidental to the ordered reinstatement.

58 | P a g e
 Tan was subsequently reiterated in Taala v. Legaspi, et al.,xiv a case involving an employee
who was administratively dismissed from the service following his conviction in the criminal case
arising from the same facts as in the administrative case. On appeal, however, he was acquitted of
the criminal charge and was ultimately ordered reinstated by the Office of the President. Failing to
secure his actual reinstatement, he filed a mandamus petition to compel his superiors to reinstate him
and to pay his back salaries from the date of his suspension to the date of his actual reinstatement.
We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President
had reversed the decision x x x in the administrative case which ordered his separation
from the service, and the President had ordered his reinstatement to his position, it
results that the suspension and the separation from the service of the [employee]
were thereby considered illegal. x x x.

x x x [In this case,] by virtue of [the Presidents order of reinstatement], [the

employees] suspension and separation from the service x x x was thereby declared
illegal, so that for all intents and purposes he must be considered as not having been
separated from his office. The lower court has correctly held that the [employee] is
entitled to back salaries.xiv

The Taala ruling was reiterated in Cristobal v. Melchor,xiv Tan, Jr. v. Office of the President,xiv
De Guzman v. CSCxiv and Del Castillo v. CSCxiv - cases involving government employees who were
dismissed after being found administratively liable, but who were subsequently exonerated on appeal.

In Garcia v. Chairman Commission on Audit,xiv the Court held that where the employee, who
was dismissed after being found administratively liable for dishonesty, was acquitted on a finding of
innocence in the criminal case (for qualified theft) based on the same acts for which he was dismissed
the executive pardon granted him in the administrative case (in light of his prior acquittal) entitled
him to back salaries from the time of his illegal dismissal up to his actual reinstatement.

The above situation should be distinguished from the case of an employee who was dismissed
from the service after conviction of a crime and who was ordered reinstated after being granted
59 | P a g e
pardon. We held that he was not entitled to back salaries since he was not illegally dismissed nor
acquitted of the charge against him.xiv

Incidentally, under the Anti-Graft and Corrupt Practices Act,xiv if the public official or
employee is acquitted of the criminal charge/s specified in the law, he is entitled to reinstatement
and the back salaries withheld during his suspension, unless in the meantime administrative
proceedings have been filed against him.

In Tan, Jr. v. Office of the President,xiv the Court clarified that the silence of Section 42 (Lifting
of Preventive Suspension Pending Administrative Investigation) of the Civil Service Decreexiv on the
payment of back salaries, unlike its predecessor,xiv is no reason to deny back salaries to a dismissed
civil servant who was ultimately exonerated.

Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does
not cover dismissed civil servants who are ultimately exonerated and ordered
reinstated to their former or equivalent positions. The rule in the latter instance, just
as we have said starting with the case of Cristobal vs. Melchor is that when "a
government official or employee in the classified civil service had been illegally
dismissed, and his reinstatement had later been ordered, for all legal purposes he is
considered as not having left his office, so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held."xiv

These cited cases illustrate that a black and white observance of the requisites in Gonzales is
not required at all times. The common thread in these cases is either the employees complete
exoneration of the administrative charge against him (i.e., the employee is not found guilty of any
other offense), or the employees acquittal of the criminal charge based on his innocence. If the case
presented falls on either of these instances, the conditions laid down in Gonzales become the two
sides of the same coin; the requirement that the suspension must be unjustified is automatically
subsumed in the other requirement of exoneration.

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Illegal suspension as sole basis for an award of back
salaries

By requiring the concurrence of the two conditions, Gonzales apparently made a distinction
between exoneration and unjustified suspension/dismissal. This distinction runs counter to the notion
that if an employee is exonerated, the exoneration automatically makes an employees suspension
unjustified. However, in Abellera v. City of Baguio, et al.,xiv the Court had the occasion to illustrate
the independent character of these two conditions so that the mere illegality of an employees
suspension could serve as basis for an award of back salaries.

Abellera, a cashier in the Baguio City Treasurers Office, was ordered dismissed from the service
after being found guilty of dishonesty and gross negligence. Even before the period to appeal expired,
the City of Baguio dismissed him from the service. On appeal, however, the penalty imposed on him
was reduced to two months suspension, without pay although the appealed decision was affirmed in
all other respects.

When the issue of Abelleras entitlement to back salaries reached the Court, we considered the
illegality of Abelleras suspension - i.e., from the time he was dismissed up to the time of his actual
reinstatement to be a sufficient ground to award him back salaries.

The rule on payment of back salaries during the period of suspension of a

member of the civil service who is subsequently ordered reinstated, is already settled
in this jurisdiction. Such payment of salaries corresponding to the period when an
employee is not allowed to work may be decreed not only if he is found innocent of
the charges which caused his suspension (Sec. 35, RA 2260), but also when the
suspension is unjustified.

In the present case, upon receipt of the [Civil Service Commissioners] decision
x x x finding [Abellera] guilty, but even before the period to appeal had expired, [the
Baguio City officials] dismissed [Abellera] from the service and another one was
appointed to replace him. [Abelleras] separation x x x before the decision of
61 | P a g e
 the Civil Service Commissioner had become final was evidently premature.
[The Baguio City officials] should have realized that [Abellera] still had the right to
appeal the Commissioner's decision to the Civil Service Board of Appeals within a
specified period, and the possibility of that decision being reversed or modified.xiv As
it did happen on such appeal x x x the penalty imposed by the Commissioner was
reduced x x x to only 2 months suspension. And yet, by [the Baguio City officials]
action, [Abellera] was deprived of work for more than 2 years. Clearly, Abelleras
second suspension from office [i.e., from the time he was dismissed up to his
actual reinstatement] was unjustified, and the payment of the salaries
corresponding to said period is, consequently, proper.xiv (emphases and
underscoring ours)

The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia
v. City of Baguioxiv that involved substantially similar facts. The Court clarified that the award of back
salaries in Abellera was based on the premature execution of the decision (ordering the employees
dismissal from the service), resulting in the employees unjustified second suspension. Under the then
Civil Service Rules, the Commissioner of Civil Service had the discretion to order the immediate
execution of his decision in administrative cases in the interest of public service. Unlike in Abellera,
this discretion was exercised in Yarcia; consequently, the employees separation from the service
pending his appeal remained valid and effective until it was set aside and modified with the imposition
of the lesser penalty.xiv

The unjustified second suspension mentioned in Abellera actually refers to the period when
the employee was dismissed from the service up to the time of his actual reinstatement. Under our
present legal landscape, this period refers to suspension pending appeal.xiv

In Miranda v. Commission on Audit,xiv the Court again had the occasion to consider the
illegality of the suspension of the employee as a separate ground to award back salaries. Following
the filing of several administrative charges against him, Engr. Lamberto Miranda was preventively
suspended from June 2, 1978 to May 7, 1986. He was reinstated on May 22, 1986. On October 7,
1986, the administrative case against him was finally dismissed for lack of evidence. When his claim
for back salaries (from the time he was preventively suspended up to his actual reinstatement) was
denied by the Commission on Audit, he brought a certiorari petition with this Court.

62 | P a g e
 In granting the petition, the Court ruled that since the lawxiv limits the duration of preventive
suspension to a fixed period, Engr. Mirandas suspension for almost eight (8) years is unreasonable
and unjustified. Additionally, the Court observed that the dropping of the administrative case against
Engr. Miranda for lack of evidence is even an eloquent manifestation that the suspension is
unjustified.xiv The Court held:

This being so, Engineer Miranda is entitled to backwages during the period of his
suspension as it is already settled in this jurisdiction that a government official or
employee is entitled to backwages not only if he is exonerated in the administrative
case but also when the suspension is unjustified.xiv (emphases and underscoring
ours)

Jurisprudential definition of exoneration

The mere reduction of the penalty on appeal does not entitle a government employee to back
salaries if he was not exonerated of the charge against him. This is the Courts teaching in City Mayor
of Zamboanga v. CA.xiv In this case, the employee was initially found guilty of disgraceful and immoral
conduct and was given the penalty of dismissal by the City Mayor of Zamboanga. On appeal, however,
the CA limited the employees guilt to improper conduct and correspondingly reduced the penalty to
six-months suspension without pay with a stern warning that repetition of the same or similar offense
will be dealt with more severely."xiv The CA also awarded him full backwages.xiv

We held that the CA erred in awarding back salaries by reiterating the principle that back
salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against
him and his suspension or dismissal is found and declared to be illegal.xiv

The Court had the occasion to explain what constitutes exoneration in Bangalisan v. Hon.
CA,xiv the respondents cited case. In this case, the Secretary of Education found the public school
teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the CSC affirmed
the Secretarys ruling but reduced the penalty imposed to suspension without pay. However, the CSC
found one of the teachers (Mariano) guilty only of violation of reasonable office rules and regulations,
63 | P a g e
and only penalized her with reprimand. None of the petitioning public school teachers were awarded
back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We explained that since the
factual premise of the administrative charges against him - i.e., his alleged participation in the illegal
mass actions, and his suspension - was amply rebutted, then Mariano was in effect exonerated of the
charges against him and was, thus, entitled to back salaries for the period of his suspension pending
appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in

order. A reading of the resolution of the [CSC] will show that he was exonerated of
the charges which formed the basis for his suspension. The Secretary of the DECS
charged him with and he was later found guilty of grave misconduct x x x [and]
conduct prejudicial to the best interest of the service x x x for his participation in the
mass actions x x x. It was his alleged participation in the mass actions that was the
basis of his preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that
Mariano was not involved in the "mass actions" but was absent because he was in
Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC
imposed upon him the penalty of reprimand, the same was for his violation of
reasonable office rules and regulations because he failed to inform the school or his
intended absence and neither did he file an application for leave covering such
absences.

xxxx

However, with regard to the other petitioners, the payment of their back wages
must be denied. Although the penalty imposed on them was only suspension, they
were not completely exonerated of the charges against them. The CSC made specific
findings that, unlike petitioner Mariano, they indeed participated in the mass actions.
It will be noted that it was their participation in the mass actions that was the very
basis of the charges against them and their subsequent suspension.xiv

Bangalisan clearly laid down the principle that if the exoneration of the employee is relative
(as distinguished from complete exoneration), an inquiry into the factual premise of the offense
charged and of the offense committed must be made. If the administrative offense found to have
64 | P a g e
been actually committed is of lesser gravity than the offense charged, the employee cannot be
considered exonerated if the factual premise for the imposition of the lesser penalty remains the same.
The employee found guilty of a lesser offense may only be entitled to back salaries when the offense
actually committed does not carry the penalty of more than one month suspension or dismissal.xiv

Bangalisan reiterated that the payment of back salaries, during the period of suspension of a
member of the civil service who is subsequently ordered reinstated, may be decreed only if the
employee is found innocent of the charges which caused the suspension and when the suspension is
unjustified. This pronouncement was re-echoed in Jacinto v. CA,xiv De la Cruz v. CA,xiv and Hon.
Gloria v. CA.xiv Taking off from Bangalisan, the Court in De la Cruz categorically stated:

The issue of whether back wages may be awarded to teachers ordered

reinstated to the service after the dismissal orders x x x were commuted by the CSC
to six (6) months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the

ground that the teachers were neither exonerated nor unjustifiably suspended, two
(2) circumstances necessary for the grant of back wages in administrative
disciplinary cases.xiv

In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public
school teachers back salaries - for the period beyond the allowable period of preventive suspension -
since they were ultimately exonerated. In affirming the CA, the Court distinguished preventive
suspension from suspension pending appeal for the purpose of determining the extent of an
employees entitlement to back salaries. The Court ruled that under Executive Order (E.O.) No. 292,
there are two kinds of preventive suspension of civil service employees who are charged with offenses
punishable by removal or suspension: (i) preventive suspension pending investigationxiv and (ii)
preventive suspension pending appeal;xiv compensation is due only for the period of preventive
suspension pending appeal should the employee be ultimately exonerated.xiv Citing Floyd R.
Mechem's A Treatise on the Law of Public Offices and Officers,xiv Hon. Gloria ruled:

65 | P a g e
 Thus, it is not enough that an employee is exonerated of the charges
against him. In addition, his suspension must be unjustified. The case of Bangalisan
v. Court of Appeals itself similarly states that "payment of salaries corresponding to
the period [1] when an employee is not allowed to work may be decreed if he is found
innocent of the charges which caused his suspension and [2] when the suspension is
unjustified.xiv (emphases and underscoring ours)

A careful reading of these cases would reveal that a strict observance of the second condition
for an award of back salaries becomes important only if the employee is not totally innocent of any
administrative infraction. As previously discussed, where the employee is completely exonerated of
the administrative charge or acquitted in the criminal case arising from the same facts based on a
finding of innocence, the second requirement becomes subsumed in the first. Otherwise, a
determination of the act/s and offense/s actually committed and of the corresponding penalty imposed
has to be made.

Unjustified suspension

On the suspension/dismissal aspect, this second condition is met upon a showing that the
separation from office is not warranted under the circumstances because the government employee
gave no cause for suspension or dismissal. This squarely applies in cases where the government
employee did not commit the offense charged, punishable by suspension or dismissal (total
exoneration); or the government employee is found guilty of another offense for an act different from
that for which he was charged.

Bangalisan, Jacinto and De la Cruz illustrate

the application of the two conditions

66 | P a g e
 Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The
CSC argues against this position with the claim that the rulings in Jacinto and De la Cruz, not
Bangalisan, should apply. After due consideration, we see no reason why the cited rulings and their
application should be pitted against one another; they essentially espouse the same conclusions after
applying the two conditions for the payment of back salaries.

Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school
teachers in Metro Manila in 1990. The teachers were charged with grave misconduct, gross neglect of
duty, and gross violation of civil service law, rules and regulations, among others. The then Secretary
of Education found them guilty and dismissed them from the service. The CSC, on appeal, ordered
the teachers reinstated, but withheld the grant of their back salaries. The CSC found the teachers
liable for conduct prejudicial to the best interest of the service and imposed on them the penalty of
suspension. The CSC reasoned that since the teachers were not totally exculpated from the charge
(but were found guilty of a lesser offense), they could not be awarded back salaries.

When these cases reached the Court, the issue of the teachers entitlement to back salaries
was raised. The teachers claimed that they were entitled to back salaries from the time of their
dismissal or suspension until their reinstatement, arguing that they were totally exonerated from the
charges since they were found guilty only of conduct prejudicial to the best interest of the service.

Under this factual backdrop, we applied the two conditions and distinguished between the
teachers who were absent from their respective classes because they participated in the illegal mass
action, on one hand, and the teachers who were absent for some other reason, on the other hand.

With respect to the teachers who participated in the illegal mass actions, we ruled that they
were not entitled to back salaries since they were not exonerated. We explained that liability for a
lesser offense, carrying a penalty less than dismissal, is not equivalent to exoneration. On the second
condition, we ruled that their suspension is not unjustified since they have given a ground for their
67 | P a g e
suspension i.e., the unjustified abandonment of their classes to the prejudice of their students, the
very factual premise of the administrative charges against them for which they were suspended.

With respect to the teachers who were away from their classes but did not participate in the
illegal strike, the Court awarded them back salaries, considering that: first, they did not commit the
act for which they were dismissed and suspended; and second, they were found guilty of another
offense, i.e., violation of reasonable office rules and regulations which is not penalized with suspension
or dismissal. The Court ruled that these teachers were totally exonerated of the charge, and found
their dismissal and suspension likewise unjustified since the offense they were found to have
committed only merited the imposition of the penalty of reprimand.

These cases show the Courts consistent stand in determining the propriety of the award of
back salaries. The government employees must not only be found innocent of the charges; their
suspension must likewise be shown to be unjustified.

The Present Case

We find that the CA was correct in awarding the respondent his back salaries during the period
he was suspended from work, following his dismissal until his reinstatement to his former position.
The records show that the charges of grave misconduct and dishonesty against him were not
substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the
respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty
was well refuted by the respondents evidence showing that he rendered overtime work on the days
in question.

We fully respect the factual findings of the CSC especially since the CA affirmed these factual
findings. However, on the legal issue of the respondents entitlement to back salaries, we are fully in
68 | P a g e
accord with the CAs conclusion that the two conditions to justify the award of back salaries exist in
the present case.

The first condition was met since the offense which the respondent was found guilty of
(violation of reasonable rules and regulations) stemmed from an act (failure to log in and log out)
different from the act of dishonesty (claiming overtime pay despite his failure to render overtime work)
that he was charged with.

The second condition was met as the respondents committed offense merits neither dismissal
from the service nor suspension (for more than one month), but only reprimand.

In sum, the respondent is entitled to back salaries from the time he was dismissed by the
CMWD until his reinstatement to his former position - i.e., for the period of his preventive suspension
pending appeal. For the period of his preventive suspension pending investigation, the respondent is
not entitled to any back salaries per our ruling in Hon. Gloria.xiv

WHEREFORE, the petition is hereby DENIED. Costs against the petitioner.

SO ORDERED.

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 SECOND DIVISION

[G.R. No. 131255. May 20, 1998]

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the Province of Nueva
Ecija, petitioner, vs. EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT
OF THE INTERIOR& LOCAL GOVERNMENTS, represented by SECRETARY ROBERT
Z. BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in
his capacity as Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P.
PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C. SANTOS, MR.VICENTE
C. PALILIO, and MR. NAPOLEON G. INTERIOR, in their capacity as Provincial Board
Members of Nueva Ecija, respondents.

DECISION
PUNO, J.:

The case at bar involves the validity of the suspension from office of petitioner Eduardo Nonato
Joson as Governor of the province of Nueva Ecija. Private respondent Oscar C. Tinio is the Vice-
Governor of said province while private respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita
C. Santos, Vicente C. Palilio and Napoleon G. Interior are members of the Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the President a letter-
complaint dated September 13, 1997 charging petitioner with grave misconduct and abuse of
authority. Private respondents alleged that in the morning of September 12, 1996, they were at the
session hall of the provincial capitol for a scheduled session of the Sangguniang Panlalawigan when
petitioner belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall
and uttered threatening words at them; close behind petitioner were several men with long and short
firearms who encircled the area. Private respondents claim that this incident was an offshoot of their
resistance to a pending legislative measure supported by petitioner that the province of Nueva Ecija
obtain a loan of P150 million from the Philippine National Bank; that petitioner's acts were intended
to harass them into approving this loan; that fortunately, no session of the Sangguniang Panlalawigan
was held that day for lack of quorum and the proposed legislative measure was not considered; that
private respondents opposed the loan because the province of Nueva Ecija had an unliquidated
obligation of more than P70 million incurred without prior authorization from the Sangguniang
Panlalawigan; that the provincial budget officer and treasurer had earlier disclosed that the province
could not afford to contract another obligation; that petitioner's act of barging in and intimidating
private respondents was a serious insult to the integrity and independence of the Sangguniang
Panlalawigan; and that the presence of his private army posed grave danger to private respondents'
lives and safety. Private respondents prayed for the suspension or removal of petitioner; for an
emergency audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in
light of the financial condition of the province, to wit:

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 "In this regard, we respectfully request for the following assistance from your good
office:
1. To immediately suspend Governor N. [sic] Joson considering the actual
dangers that we are facing now, and provide adequate police security detail for the
Sangguniang Panlalawigan of Nueva Ecija. Should the evidence warrant after
investigation, to order his removal from office.
2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by
the auditors from the Commission on Audit Central Office with adequate police
security assistance. Should the evidence so warrant, to file necessary charges
against responsible and accountable officers.
3. To advise the Philippine National Bank to review the capability of the
province of Nueva Ecija to secure more loans and the feasibility of the same in the
light of the present financial condition of the province. Or if said loan will be contrary
to sound banking practice, recommend its disapproval."xiv
The letter-complaint was submitted with the joint affidavit of Elnora Escombien and Jacqueline
Jane Perez, two (2) employees of the Sangguniang Panlalawigan who witnessed the incident. The
letter was endorsed by Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third
Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth District, and Mayor Placido
Calma, President of the Mayors' League of said province.xiv
The President acted on the complaint by writing on its margin the following:
"17 Sep 96
To: SILG info Exec. Sec. and Sec. of Justice:
1. Noted. There appears no justification for the use of force, intimidation or armed
followers in the situation of 12 Sep at the Session Hall. 2. Take appropriate preemptive
and investigative actions. 3. BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed)."xiv
President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the
members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify
"the use of force, intimidation or armed followers." He thus instructed the then Secretary of the Interior
and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and investigative
actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes were sent to Secretary Robert
Z. Barbers on September 20, 1996. Acting upon the instructions of the President, Secretary Barbers
notified petitioner of the case against himxiv and attached to the notice a copy of the complaint and
its annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn
answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in
support thereof, within fifteen (15) days from receipt."xiv
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner
and private respondents to a conference to settle the controversy. The parties entered into an
agreement whereby petitioner promised to maintain peace and order in the province while private
respondents promised to refrain from filing cases that would adversely affect their peaceful co-
existence.xiv

71 | P a g e
 The peace agreement was not respected by the parties and the private respondents reiterated
their letter-complaint. Petitioner was again ordered to file his answer to the letter-complaint within
fifteen days from receipt. Petitioner received a copy of this order on November 13, 1996. On the same
day, petitioner requested for an extension of thirty (30) days to submit his answer because he was
"trying to secure the services of legal counsel experienced in administrative law practice."xiv The
Department of the Interior and Local Government (DILG), acting through Director Almario de los
Santos, Officer-In-Charge of the Legal Service, granted the motion, with the thirty-day extension to
be reckoned, however, from November 13, 1996, i.e., the day petitioner received the order to
answer.xiv
In a letter dated December 9, 1996, petitioner moved for another extension of thirty (30) days
to file his answer. He stated that he had already sent letters to various law firms in Metro Manila but
that he had not yet contracted their services; that the advent of the Christmas season kept him busy
with "numerous and inevitable official engagements."xiv The DILG granted the request for extension
"for the last time up to January 13 only."xiv
On January 7, 1997, petitioner requested for another extension of thirty (30) days to file his
answer. According to him, the Christmas season kept him very busy and preoccupied with his
numerous official engagements; that the law firms he invited to handle his case have favorably replied
but that he needed time to confer with them personally; and that during this period, he, with the help
of his friends, was exploring the possibility of an amicable settlement of the case.xiv The DILG granted
petitioner's request "for the last time" but gave him an extension of only ten (10) days from January
13, 1997 to January 23, 1997. The DILG also informed him that his "failure to submit answer will be
considered a waiver and that the plaintiff [shall] be allowed to present his evidence ex-parte."xiv
Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of
thirty (30) days on the following grounds: (a) that he was still in the process of choosing competent
and experienced counsel; (b) that some law firms refused to accept his case because it was perceived
to be politically motivated; and (c) the multifarious activities, appointments and official functions of
his office hindered his efforts to secure counsel of choice.xiv
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of
the DILG, issued an order declaring petitioner in default and to have waived his right to present
evidence. Private respondents were ordered to present their evidence ex-parte. The order reads as
follows:
"ORDER
It appearing that respondent failed to submit his answer to the complaint despite the
grant to him of three (3) extensions, such unreasonable failure is deemed a waiver of his
right to present evidence in his behalf pursuant to Section 4, Rule 4 of Administrative Order
No. 23 dated December 17, 1992, as amended.
Respondent is hereby declared in default, meanwhile, complainants are directed to
present their evidence ex-parte. However, considering the prohibition on the conduct of
administrative investigation due to the forthcoming barangay elections, complainants will be
notified on the date after the barangay election for them to present their evidence.
SO ORDERED."xiv
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion,
representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to File
Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved
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for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered the order of default in
the interest of justice. He noted the appearance of petitioner's counsel and gave petitioner "for the
last time" fifteen (15) days from receipt to file his answer.xiv
On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel,
whose office is in Manila, should have received a copy of the May 19, 1997 order ten days after mailing
on May 27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his
right to present evidence in his behalf. Undersecretary Sanchez reinstated the order of default and
directed private respondents to present their evidence ex-parte on July 15, 1997.xiv
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss."
Petitioner alleged that the letter-complaint was not verified on the day it was filed with the Office of
the President; and that the DILG had no jurisdiction over the case and no authority to require him to
answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of
June 23, 1997 reinstating the order of default. Petitioner also prayed that the hearing on the merits
of the case be held in abeyance until after the "Motion to Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres
issued an order, by authority of the President, placing petitioner under preventive suspension for sixty
(60) days pending investigation of the charges against him.xiv
Secretary Barbers directed the Philippine National Police to assist in the implementation of the
order of preventive suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor
Oscar Tinio as Acting Governor until such time as petitioner's temporary legal incapacity shall have
ceased to exist.xiv
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals
challenging the order of preventive suspension and the order of default.xiv
Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary
Sanchez issued an order denying petitioner's "Motion to Dismiss" and "Urgent Ex-Parte Motion for
Reconsideration." In the same order, he required the parties to submit their position papers within an
inextendible period of ten days from receipt after which the case shall be deemed submitted for
resolution, to wit:
"WHEREFORE, for lack of merit, both motions are denied. However, for this office to
have a better appreciation of the issues raised in the instant case, the parties, through their
respective counsels are hereby directed to submit their position papers within a period of ten
(10) days from receipt hereof, which period is inextendible, after which the case is deemed
submitted for resolution."xiv
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive
Suspension." On September 10, 1997, petitioner followed this with a "Motion to Lift Default Order and
Admit Answer Ad Cautelam."xiv Attached to the motion was the "Answer Ad Cautelam"xiv and sworn
statements of his witnesses. On the other hand, complainants (private respondents herein) manifested
that they were submitting the case for decision based on the records, the complaint and affidavits of
their witnesses.xiv
In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while
he was at his district office in the town of Munoz, he received a phone call from Sangguniang
Panlalawigan member Jose del Mundo. Del Mundo, who belonged to petitioner's political party,
informed him that Vice-Governor Tinio was enraged at the members of the Sangguniang Panlalawigan
who were in petitioner's party because they refused to place on the agenda the ratification of the
73 | P a g e
proposed P150 million loan of the province. Petitioner repaired to the provincial capitol to advise his
party-mates on their problem and at the same time attend to his official functions. Upon arrival, he
went to the Session Hall and asked the members present where Vice-Governor Tinio was. However,
without waiting for their reply, he left the Hall and proceeded to his office.
Petitioner claimed that there was nothing in his conduct that threatened the members of the
Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor Tinio,
he was always accompanied by his official security escorts whenever he reported for work. He also
alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false. Escombien
was purportedly not inside the session hall during the incident but was at her desk at the office and
could not in any way have seen petitioner in the hall. To attest to the truth of his allegations, petitioner
submitted three (3) joint affidavits -- two (2) affidavits executed by six (6) and ten (10) employees,
respectively, of the provincial government, and a third by four members of the Sangguniang
Panlalawigan.xiv
On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of
August 20, 1997 denying his motion to dismiss. The "Urgent Motion for Reconsideration" was rejected
by Undersecretary Sanchez on October 8, 1997. Undersecretary Sanchez, however, granted the
"Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the "Answer Ad
Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997.xiv
On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner
prayed that a formal investigation of his case be conducted pursuant to the provisions of the Local
Government Code of 1991 and Rule 7 of Administrative Order No. 23; and that this be held at the
province of Nueva Ecija.xiv On October 29, 1997, petitioner submitted a "Manifestation and Motion"
before the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition.xiv
Hence this recourse.
The proceedings before the DILG continued however. In an order dated November 11, 1997, the
DILG denied petitioner's "Motion to Conduct Formal Investigation" declaring that the submission of
position papers substantially complies with the requirements of procedural due process in
administrative proceedings.xiv
A few days after filing the petition before this Court, petitioner filed a "Motion for Leave to File
Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ
of Preliminary Injunction." Petitioner alleged that subsequent to the institution of this petition, the
Secretary of the Interior and Local Governments rendered a resolution on the case finding him guilty
of the offenses charged.xiv His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses to be
"more natural, reasonable and probable" than those of herein petitioner Joson's.xiv
On January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings
and recommendation of the DILG Secretary. He imposed on petitioner the penalty of suspension from
office for six (6) months without pay, to wit:
"WHEREFORE, as recommended by the Secretary of the Interior and Local Government,
respondent Nueva Ecija Governor Eduardo Nonato Joson is hereby found guilty of the
offenses charged and is meted the penalty of suspension from office for a period of six (6)
months without pay."xiv
On January 14, 1998, we issued a temporary restraining order enjoining the implementation of
the order of the Executive Secretary.
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 On January 19, 1998, private respondents submitted a Manifestation informing this Court that
the suspension of petitioner was implemented on January 9, 1998; that on the same day, private
respondent Oscar Tinio was installed as Acting Governor of the province; and that in view of these
events, the temporary restraining order had lost its purpose and effectivity and was fait accompli.xiv
We noted this Manifestation.
In his petition, petitioner alleges that:
"I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF
PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY APPLIED IN THE ADMINISTRATIVE
DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN THE CASE AGAINST PETITIONER
GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO
PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE SECRETARY OF THE DILG WHO
WAS EXERCISING THE POWERS OF THE PRESIDENT WHICH ARE CLEARLY VESTED BY LAW
ONLY UPON HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS
PROPERLY DECLARED IN DEFAULT WHEN HE FILED A MOTION TO DISMISS INSTEAD OF
AN ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS BASED ON
JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic] PLEADING IN ADMINISTRATIVE
DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF
PREVENTIVE SUSPENSION AGAINST THE PETITIONER WAS PROPER BECAUSE THERE WAS
NO JOINDER OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO EVIDENCE OF
GUILT AGAINST PETITIONER."xiv
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction," petitioner also claims that:
"I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED PURSUANT
THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH UNDUE
HASTE, IN VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991 LOCAL GOVERNMENT
CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE DISREGARD OF
PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998 (ANNEX
"C" HEREOF) BY THE PUBLIC RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF PRELIMINARY
INJUNCTION HEREIN PRAYED FOR."xiv
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are governed by the Local
Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of
1991, and Administrative Order No. 23 entitled "Prescribing the Rules and Procedures on the
Investigation of Administrative Disciplinary Cases Against Elective Local Officials of Provinces, Highly
Urbanized Cities, Independent Component Cities, and Cities and Municipalities in Metropolitan
Manila."xiv In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code
of 1987 apply in a suppletory character.xiv
I
Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the grounds
75 | P a g e
for which an elective local official may be disciplined, suspended or removed from office. Section 60
reads:
"Sec. 60. Grounds for Disciplinary Actions. -- An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or
dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense
punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in
the case of members of the sangguniang panlalawigan, sangguniang panlunsod,
sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the
status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court."
When an elective local official commits an act that falls under the grounds for disciplinary action,
the administrative complaint against him must be verified and filed with any of the following:
"Sec. 61. Form and Filing of Administrative Complaints.-- A verified complaint against
any erring local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city shall be filed
before the Office of the President.
(b) A complaint against any elective official of a municipality shall be filed
before the sangguniang panlalawigan whose decision may be appealed to the Office
of the President; and
(c) A complaint against any elective barangay official shall be filed before
the sangguniang panlungsod or sangguniang bayan concerned whose decision shall
be final and executory."xiv
An administrative complaint against an erring elective official must be verified and filed with the
proper government office. A complaint against an elective provincial or city official must be filed with
the Office of the President. A complaint against an elective municipal official must be filed with the
Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang
Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The
letter-complaint against him was therefore properly filed with the Office of the President. According
to petitioner, however, the letter-complaint failed to conform with the formal requirements set by the
Code. He alleges that the complaint was not verified by private respondents and was not supported
76 | P a g e
by the joint affidavit of the two witnesses named therein; that private respondents later realized these
defects and surreptitiously inserted the verification and sworn statement while the complaint was still
pending with the Office of the President.xiv To prove his allegations, petitioner submitted: (a) the
sworn statement of private respondent Solita C. Santos attesting to the alleged fact that after the
letter-complaint was filed, Vice-Governor Tinio made her and the other members of the Sangguniang
Panlalawigan sign an additional page which he had later notarized; and (b) the fact that the verification
of the letter-complaint and the joint affidavit of the witnesses do not indicate the document, page or
book number of the notarial register of the notary public before whom they were made.xiv
We find no merit in the contention of the petitioner. The absence of the document, page or book
number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The
lack of these entries may constitute proof of neglect on the part of the subscribing officer in complying
with the requirements for notarization and proper verification. They may give grounds for the
revocation of his notarial commission.xiv But they do not indubitably prove that the verification was
inserted or intercalated after the letter-complaint was filed with the Office of the President.
Nor is the fact of intercalation sufficiently established by the affidavit of Solita C. Santos. Private
respondent Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that
she be dropped as one of the complainants since she had just joined the political party of petitioner
Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics" of
Vice-Governor Tinio to grab power from petitioner Joson.xiv Private respondent Santos cannot in any
way be considered an unbiased witness. Her motive and change of heart render her affidavit suspect.
Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of
the President, the defect was not fatal. The requirement of verification was deemed waived by the
President himself when he acted on the complaint.
Verification is a formal, not jurisdictional requisite.xiv Verification is mainly intended to secure an
assurance that the allegations therein made are done in good faith or are true and correct and not
mere speculation.xiv The lack of verification is a mere formal defect.xiv The court may order the
correction of the pleading, if not verified, or act on the unverified pleading if the attending
circumstances are such that a strict compliance with the rule may be dispensed with in order that the
ends of justice may be served.xiv
II
In his second assigned error, petitioner questions the jurisdiction and authority of the DILG
Secretary over the case. He contends that under the law, it is the Office of the President that has
jurisdiction over the letter-complaint and that the Court of Appeals erred in applying the alter-ego
principle because the power to discipline elective local officials lies with the President, not with the
DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two
authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No.
23, to wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against
elective local officials mentioned in the preceding Section shall be acted upon by the
President. The President, who may act through the Executive Secretary, shall hereinafter be
referred to as the Disciplining Authority."
Sec. 3. Investigating Authority. The Secretary of the Interior and Local
Government is hereby designated as the Investigating Authority. He may constitute an
Investigating Committee in the Department of the Interior and Local Government for the
purpose.
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 The Disciplining Authority may, however, in the interest of the service, constitute a
Special Investigating Committee in lieu of the Secretary of the Interior and Local
Government."xiv
Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether
acting by himself or through the Executive Secretary. The Secretary of the Interior and Local
Government is the Investigating Authority, who may act by himself or constitute an Investigating
Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu
of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee.
The power of the President over administrative disciplinary cases against elective local officials is
derived from his power of general supervision over local governments. Section 4, Article X of the 1987
Constitution provides:
"Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and functions."xiv
The power of supervision means "overseeing or the authority of an officer to see that the subordinate
officers perform their duties."xiv If the subordinate officers fail or neglect to fulfill their duties, the
official may take such action or step as prescribed by law to make them perform their duties.xiv The
President's power of general supervision means no more than the power of ensuring that laws are
faithfully executed, or that subordinate officers act within the law.xiv Supervision is not incompatible
with discipline.xiv And the power to discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of the act or conduct of local officials
when in his opinion the good of the public service so requires.xiv Thus:
"Independently of any statutory provision authorizing the President to conduct an
investigation of the nature involved in this proceeding, and in view of the nature and
character of the executive authority with which the President of the Philippines is invested,
the constitutional grant to him of power to exercise general supervision over all local
governments and to take care that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of the petitioner herein.
Supervision is not a meaningless thing. It is an active power. It is certainly not without
limitation, but it at least implies authority to inquire into facts and conditions in order to
render the power real and effective. If supervision is to be conscientious and rational, and
not automatic and brutal, it must be founded upon a knowledge of actual facts and conditions
disclosed after careful study and investigation."xiv
The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the
President has the power derived from the Constitution itself to investigate complaints against local
government officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a
Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue
delegation, contrary to petitioner Joson's claim. The President remains the Disciplining Authority. What
is delegated is the power to investigate, not the power to discipline.xiv
Moreover, the power of the DILG to investigate administrative complaints is based on the alter-
ego principle or the doctrine of qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by the Constitution or law to act
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 in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or reprobated
by the Chief Executive presumptively the acts of the Chief Executive."xiv
This doctrine is corollary to the control power of the President.xiv The power of control is provided
in the Constitution, thus:
"Sec. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed."xiv
Control is said to be the very heart of the power of the presidency.xiv As head of the Executive
Department, the President, however, may delegate some of his powers to the Cabinet members except
when he is required by the Constitution to act in person or the exigencies of the situation demand
that he acts personally.xiv The members of Cabinet may act for and in behalf of the President in certain
matters because the President cannot be expected to exercise his control (and supervisory) powers
personally all the time. Each head of a department is, and must be, the President's alter ego in the
matters of that department where the President is required by law to exercise authority.xiv
The procedure how the Disciplining and Investigating Authorities should exercise their powers is
distinctly set forth in the Local Government Code and A.O. No. 23. Section 62 of the Code provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the administrative
complaint is filed, the Office of the President or the sanggunian concerned, as the case may
be, shall require the respondent to submit his verified answer within fifteen (15) days from
receipt thereof, and commence investigation of the case within ten (10) days after receipt of
such answer of the respondent.
xxx."
Sections 1 and 3, Rule 5xiv of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the
Disciplining Authority shall refer the complaint and answer, together with their attachments
and other relevant papers, to the Investigating Authority who shall commence the
investigation of the case within ten (10) days from receipt of the same.
"x x x
"Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer,
the Investigating Authority shall determine whether there is a prima facie case to warrant
the institution of formal administrative proceedings."
When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order
requiring the respondent to submit his verified answer within fifteen (15) days from notice. Upon filing
of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for
investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President
when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with
the Office of the President but it was the DILG Secretary who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply with the provisions of A.O.
No. 23. The Office should have first required petitioner to file his answer. Thereafter, the complaint
and the answer should have been referred to the Investigating Authority for further proceedings. Be
79 | P a g e
that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable
the President to make a preliminary assessment of the case.xiv The President found the complaint
sufficient in form and substance to warrant its further investigation. The judgment of the President on
the matter is entitled to respect in the absence of grave abuse of discretion.
III
In his third assigned error, petitioner also claims that the DILG erred in declaring him in default
for filing a motion to dismiss. He alleges that a motion to dismiss is not a pleading prohibited by the
law or the rules and therefore the DILG Secretary should have considered it and given him time to file
his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local Government Code
of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to file a motion to dismiss in the
order to file answer. Thrice, he requested for extension of time to file his answer citing as reasons the
search for competent counsel and the demands of his official duties. And thrice, his requests were
granted. Even the order of default was reconsidered and petitioner was given additional time to file
answer. After all the requests and seven months later, he filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is required by law to be finished
within one hundred twenty (120) days from the time of formal notice to the respondent. The
extensions petitioner requested consumed fifty-five (55) days of this period.xiv Petitioner, in fact, filed
his answer nine (9) months after the first notice. Indeed, this was more than sufficient time for
petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by public service. The efficiency
of officials under investigation is impaired when a case hangs over their heads. Officials deserve to be
cleared expeditiously if they are innocent, also expeditiously if guilty, so that the business of
government will not be prejudiced.xiv
IV
In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending
to the Disciplining Authority his preventive suspension during the investigation. Preventive suspension
is authorized under Section 63 of the Local Government Code, viz:
"Sec. 63. Preventive Suspension.-- (a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a province, a
highly urbanized or an independent component city;
x x x.
(b) Preventive suspension may be imposed at any time after the issues are joined, when
the evidence of guilt is strong, and given the gravity of the offense, there is great probability
that the continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence; Provided, That, any
single preventive suspension of local elective officials shall not extend beyond sixty (60) days:
Provided, further, That in the event that several administrative cases are filed against an
elective official, he cannot be preventively suspended for more than ninety (90) days within
a single year on the same ground or grounds existing and known at the time of the first
suspension.
x x x."
In sum, preventive suspension may be imposed by the Disciplining Authority at any time (a) after the
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issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense,
there is great probability that the respondent, who continues to hold office, could influence the
witnesses or pose a threat to the safety and integrity of the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive suspension on
petitioner Joson after finding that:
"x x x
DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated 23 June
1997, recommends that respondent be placed under preventive suspension considering that
all the requisites to justify the same are present. He stated therein that:
'Preventive suspension may be imposed at any time after the issues are joined,
that is, after respondent has answered the complaint, when the evidence of guilt
is strong and, given the gravity of the offense, there is a great possibility that the
continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence (Sec. 3, Rule 6
of Administrative Order No. 23).
The failure of respondent to file his answer despite several opportunities given
him is construed as a waiver of his right to present evidence in his behalf (Sec. 4,
Rule 4 of Administrative Order No. 23). The requisite of joinder of issues is squarely
met with respondent's waiver of right to submit his answer. The act of respondent
in allegedly barging violently into the session hall of the Sangguniang Panlalawigan
in the company of armed men constitutes grave misconduct. The allegations of
complainants are bolstered by the joint-affidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent who is the chief executive of the province
is in a position to influence the witnesses. Further, the history of violent
confrontational politics in the province dictates that extreme precautionary
measures be taken.'
Upon scrutiny of the records and the facts and circumstances attendant to this case, we
concur with the findings of the Secretary of the Interior and Local Government and find merit
in the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the Interior and Local
Government, respondent EDUARDO N. JOSON, Governor of Nueva Ecija, is hereby placed
under PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July
1997, pending investigation of the charges filed against him.
SO ORDERED."xiv
Executive Secretary Torres found that all the requisites for the imposition of preventive suspension
had been complied with. Petitioner's failure to file his answer despite several opportunities given him
was construed as a waiver of his right to file answer and present evidence; and as a result of this
waiver, the issues were deemed to have been joined. The Executive Secretary also found that the
evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency
of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence
against him.
V
We now come to the validity of the January 8, 1998 Resolution of the Executive Secretary finding
petitioner guilty as charged and imposing on him the penalty of suspension from office for six (6)
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months from office without pay.
Petitioner claims that the suspension was made without formal investigation pursuant to the
provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To Conduct Formal Investigation" three
months before the issuance of the order of suspension and this motion was denied by the DILG for
the following reasons:
"On November 19, 1997, complainants, through counsel, filed a Manifestation calling
our attention to the Decision dated October 24, 1997 of the Court of Appeals, Fifth Division
in CA-G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus Executive Secretary Ruben
D. Torres, et. al." In the aforestated decision, the Court of Appeals resolved to sustain the
authority of this Department to investigate this administrative case and has likewise validated
the order of default as well as the order of preventive suspension of the respondent.
We offer no objection and concur with the assertion of respondent that he has the right
for the conduct of formal investigation. However, before there shall be a formal investigation,
joinder of issues must already be present or respondent's answer has already been filed. In
the case at bar, the admission of respondent's answer after having been declared in default
was conditioned on the fact of submission of position papers by the parties, after which, the
case shall be deemed submitted for resolution. Respondent, instead of submitting his position
paper filed his subject motion while complainants manifested to forego the submission of
position paper and submit the case for resolution on the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical rules of procedure and
evidence are not strictly applied (Concerned Officials of the Metropolitan Waterworks and
Sewerage System v. Vasquez, 240 SCRA 502). The essence of due process is to be found in
the reasonable opportunity to be heard and to submit evidence one may have in support of
one's defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean verbal
arguments in court; one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is no denial of
procedural due process (Juanita Y. Say, et. al;. vs. IAC, G.R. No. 73451). Thus, when
respondent failed to submit his position paper as directed and insisted for the conduct of
formal investigation, he was not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of merit, is
DENIED.
SO ORDERED."xiv
The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right
to a formal investigation is spelled out in the following provisions of A.O. No. 23, viz:
"SEC. 3 Evaluation. Within twenty (20) days from receipt of the complaint and answer,
the Investigating Authority shall determine whether there is a prima facie case to warrant
the institution of formal administrative proceedings.
SEC. 4. Dismissal motu proprio. If the Investigating Authority determines that there is
no prima facie case to warrant the institution of formal administrative proceedings, it shall,
within the same period prescribed under the preceding Section, submit its recommendation
to the Disciplining Authority for the motu proprio dismissal of the case, together with the
recommended decision, resolution, and order.
SEC. 5. Preliminary conference. If the Investigating Authority determines that there is
prima facie case to warrant the institution of formal administrative proceedings, it shall, within
the same period prescribed under the preceding Section, summon the parties to a preliminary
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 conference to consider the following:
a) whether the parties desire a formal investigation or are willing to submit the
case for resolution on the basis of the evidence on record; and
b) If the parties desire a formal investigation, to consider the simplification of
issues, the possibility of obtaining stipulation or admission of facts and of
documents, specifically affidavits and depositions, to avoid unnecessary
proof, the limitation of number of witnesses, and such other matters as may
be aid the prompt disposition of the case.
The Investigating Authority shall encourage the parties and their counsels to enter, at
any stage of the proceedings, into amicable settlement, compromise and arbitration, the
terms and conditions of which shall be subject to the approval of the Disciplining Authority.
After the preliminary conference, the Investigating Authority shall issue an order reciting
the matters taken up thereon, including the facts stipulated and the evidences marked, if
any. Such order shall limit the issues for hearing to those not disposed of by agreement or
admission of the parties, and shall schedule the formal investigation within ten (10) days
from its issuance, unless a later date is mutually agreed in writing by the parties
concerned."xiv
The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where
he disputed the truth of the allegations that he barged into the session hall of the capitol and
committed physical violence to harass the private respondents who were opposed to any move for
the province to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary
Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15,
1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on
October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found
petitioner guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive
Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on petitioner
the penalty of six (6) months suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due process.
Section 5 of A. O. No. 23 provides that at the preliminary conference, the Investigating Authority shall
summon the parties to consider whether they desire a formal investigation. This provision does not
give the Investigating Authority the discretion to determine whether a formal investigation would be
conducted. The records show that petitioner filed a motion for formal investigation. As respondent,
he is accorded several rights under the law, to wit:
"Sec. 65. Rights of Respondent. -- The respondent shall be accorded full opportunity to
appear and defend himself in person or by counsel, to confront and cross-examine the
witnesses against him, and to require the attendance of witnesses and the production of
documentary evidence in his favor through compulsory process of subpoena or subpoena
duces tecum."
An erring elective local official has rights akin to the constitutional rights of an accused.xiv These rights
are essentially part of procedural due process.xiv The local elective official has the (1) right to appear
and defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses
against him; and (3) the right to compulsory attendance of witness and the production of documentary
evidence. These rights are reiterated in the Rules Implementing the Local Government Codexiv and in
A.O. No. 23.xiv Well to note, petitioner formally claimed his right to a formal investigation after his
Answer Ad Cautelam has been admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the complaint against him was
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decided on the basis of position papers. There is nothing in the Local Government Code and its
Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases against
elective local officials can be decided on the basis of position papers. A.O. No. 23 states that the
Investigating Authority may require the parties to submit their respective memoranda but this is only
after formal investigation and hearing.xiv A.O. No. 23 does not authorize the Investigating Authority
to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast
but contradictory to each other. These contradictions are best settled by allowing the examination and
cross-examination of witnesses. Position papers are often-times prepared with the assistance of
lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited
by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive
officials and employees. Administrative disciplinary proceedings against elective government officials
are not exactly similar to those against appointive officials. In fact, the provisions that apply to
elective local officials are separate and distinct from appointive government officers and employees.
This can be gleaned from the Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is devoted to elective
officials. It provides for their qualifications and election,xiv vacancies and succession,xiv local
legislation,xiv disciplinary actions,xiv and recall.xiv Appointive officers and employees are covered in
Title III of Book I of the Code entitled "Human Resources and Development." All matters pertinent to
human resources and development in local government units are regulated by "the civil service law
and such rules and regulations and other issuances promulgated thereto, unless otherwise provided
in the Code."xiv The "investigation and adjudication of administrative complaints against appointive
local officials and employees as well as their suspension and removal" are "in accordance with the civil
service law and rules and other pertinent laws," the results of which "shall be reported to the Civil
Service Commission."xiv
It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily
governs appointive officials and employees. Their qualifications are set forth in the Omnibus Rules
Implementing Book V of the said Code. The grounds for administrative disciplinary action in Book V
are much more in number and are specific than those enumerated in the Local Government Code
against elective local officials.xiv The disciplining authority in such actions is the Civil Service
Commissionxiv although the Secretaries and heads of agencies and instrumentalities, provinces, cities
and municipalities are also given the power to investigate and decide disciplinary actions against
officers and employees under their jurisdiction.xiv When a complaint is filed and the respondent
answers, he must "indicate whether or not he elects a formal investigation if his answer is not
considered satisfactory."xiv If the officer or employee elects a formal investigation, the direct evidence
for the complainant and the respondent "consist[s] of the sworn statement and documents submitted
in support of the complaint and answer, as the case may be, without prejudice to the presentation of
additional evidence deemed necessary x x x, upon which the cross-examination by respondent and
the complainant, respectively, is based."xiv The investigation is conducted without adhering to the
technical rules applicable in judicial proceedings."xiv Moreover, the appointive official or employee may
be removed or dismissed summarily if (1) the charge is serious and the evidence of guilt is strong; (2)
when the respondent is a recidivist; and (3) when the respondent is notoriously undesirable.xiv
The provisions for administrative disciplinary actions against elective local officials are markedly
different from appointive officials.xiv The rules on the removal and suspension of elective local officials
are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative
cases is expressly allowed with respect to appointive officials but not to those elected. An elective
official, elected by popular vote, is directly responsible to the community that elected him. The official
has a definite term of office fixed by law which is relatively of short duration. Suspension and removal
from office definitely affects and shortens this term of office. When an elective official is suspended
or removed, the people are deprived of the services of the man they had elected. Implicit in the right
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of suffrage is that the people are entitled to the services of the elective official of their choice.xiv
Suspension and removal are thus imposed only after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent Executive
Secretary is declared null and void and is set aside. No Cost.
SO ORDERED.

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Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 202303 June 4, 2014

GERARDO R. VILLASEÑOR AND RODEL A. MESA, Petitioners,

vs.
OMBUDSMAN AND HON. HERBERT BAUTISTA, City Mayor, Quezon City, Respondents.

DECISION

MENDOZA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing
the March 15, 20121 and June 18, 20122 Resolutions of the Court of Appeals (CA). in CA G.R. SP No.
121378, which dismissed for utter lack of merit the petition to nullify or restrain the immediate
implementation of the June 17, 2003 Joint Decision of the Office of the Ombudsman in OMB-ADM-0-
01-0376 and OMB-ADM-0-01-0390, directing the dismissal from the service and one-year suspension
of petitioners Gerardo R. Villaseñor (Villaseñor) and Rodel A. Mesa (Mesa), respectively.

The Facts

The petitioners, along with several others, were administratively charged in connection with the
Manor Hotel fire tragedy that took place on August 18, 2001, killing 74 people and causing injury to
others. Petitioner Villaseñor was an electrical inspector from the Electrical Division, and petitioner
Mesa was an inspector from the Electrical Engineering Office, both of Quezon City.

In OMB-ADM-0-01-0376, petitioner Villaseñor was charged with grave misconduct prejudicial to the
best interest of the service and gross negligence. In OMB-ADM-00390, both petitioners were
charged with violation of Section 4 of Republic Act (R.A.) No. 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees).

In its Joint Decision dated June 17, 2003, the Investigating Panel of the Office of the Ombudsman
ruled as follows:

1. In OMB-ADM-0-01-0376, Villaseñor was found guilty of conduct prejudicial to the

best interest of the service and gross neglect of duty for which he was meted the
penalty of dismissal from the service with all its accessory penalties.

2. In OMB-ADM-0-01-0390, Mesa was found guilty of conduct prejudicial to the best

interest of the service for which he was meted the penalty of one year suspension
without pay.

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In its Memorandum,3 dated July 26, 2004, the Ombudsman approved the findings in the Joint
Decision as regards the petitioners.

On December 13, 2004, Villaseñor and Mesa filed their separate motions for reconsideration4 of the
Joint Decision.

In the Memorandum,5 dated March 2, 2006, the Ombudsman denied the motion for reconsideration
filed by Mesa and those of the other accused, and affirmed in toto the Joint Decision. Villaseñor’s
motion for reconsideration, however, was not enumerated as one of the pleadings resolved.6

On April 18, 2006, Mesa appealed to the CA, which was docketed as CA-G.R. No. 93891. Villaseñor
made no appeal, his motion for reconsideration before the Ombudsman being yet unresolved.

In the Order7 dated August 23, 2006, pending resolution of Mesa’s appeal and Villaseñor’s motion
for reconsideration, the Ombudsman directed the Mayor of Quezon City and the Secretary of the
Department of Interior and Local Government to enforce the Joint Decision immediately upon
receipt of the order.

On September 20, 2011, Villaseñor and Mesa filed a special civil action for certiorari8 before the CA
docketed as CA-G.R. SP No. 121378, assailing the August 23, 2006 Order of the Ombudsman
ordering the immediate implementation of the Joint Decision despite the pendency of Villaseñor’s
motion for reconsideration and Mesa’s appeal. They prayed that the said order be annulled and an
injunction be issued to restrain its implementation.

In the assailed March 15, 2012 Resolution,9 the CA dismissed the petition for utter lack of merit. It
held that the Ombudsman decision was immediately executory pending appeal and would not be
stayed by the filing of the appeal or issuance of an injunctive relief.

In the assailed June 18, 2012 Resolution,10 the CA denied the petitioners’ motion for
reconsideration.

Hence, this petition.

Issues And Arguments

Petitioner Villaseñor argues that his constitutional right of not to be deprived of life, liberty and
property without due process of law, was grossly violated by the Ombudsman when:

1. He was prevented from cross-examining complainant’s witnesses;

2. He failed to receive any copy of any order relative to the preliminary conference of the case; and

3. His dismissal from the service was ordered implemented while his motion for reconsideration
remains unresolved.

He argues that the order of dismissal cannot be deemed executory as it has not yet attained finality
on account of his unresolved motion for reconsideration.

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Petitioner Mesa, on the other hand, argues that the order of suspension against him should not have
been implemented pending his appeal with the CA, in accordance with Section 7 of Rule III of the
Office of the Ombudsman’s Rules of Procedure. He argues that Administrative Order (A.O.) No. 17,
which took effect on September 7, 2003 and amended said Section 7, should not be applied to his
case because it was promulgated long after the rendition of the order of his suspension on June 17,
2003. Mesa further argues that to apply the amendment to him will give it a retroactive effect which
is prohibited under Article 4 of the Civil Code.

Both petitioners aver that Ombudsman v. Samaniego,11 the case relied upon by the CA, cannot be
applied to their case because the principal basis of the ruling was Section 7, as amended, which
they insist is inapplicable to them.

The first two issues raised by petitioner Villaseñor do not relate to the assailed CA Resolutions,
which ruled upon the Order of the Ombudsman implementing the Joint Decision. They are,
therefore, irrelevant to the present petition. The sole issue before the Court now is, thus:

Whether the Ombudsman’s order of dismissal from the service and suspension of one year can be
implemented pending resolution of petitioner Villaseñor’s motion for reconsideration before the
Ombudsman, and petitioner Mesa’s appeal before the CA?

The Ruling of the Court

The petition must fail.

Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O.
No. 17, dated September 15, 2003, provides:

SEC. 7. Finality and execution of decision.– Where the respondent is absolved of the charge, and in
case of conviction where the penalty imposed is public censure or reprimand, suspension of not
more than one month, or a fine equivalent to one month salary, the decision shall be final,
executory and unappealable. In all other cases, the decision may be appealed to the Court of
Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43
of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or
Order denying the motion for reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension or
removal and the respondent wins such appeal, he shall be considered as having been under
preventive suspension and shall be paid the salary and such other emoluments that he did not
receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of
course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and
properly implemented. The refusal or failure by any officer without just cause to comply with an
order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a
ground for disciplinary action against such officer.

[Emphases supplied]

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From the above, it can be gleaned that the Ombudsman decisions in administrative cases may either
be unappealable or appealable. Unappealable decisions are final and executory, and they are as
follows: (1) respondent is absolved of the charge; (2) the penalty imposed is public censure or
reprimand; (3) suspension of not more than one month; and (4) a fine equivalent to one month’s
salary. Appealable decisions, on the other hand, are those which fall outside said enumeration, and
may be appealed to the CA under Rule 43 of the Rules of Court, within 15 days from receipt of the
written notice of the decision or order denying the motion for reconsideration. Section 7 is
categorical in providing that an appeal shall not stop the decision from being executory, and that
such shall be executed as a matter of course.

Petitioner Mesa was ordered suspended for one year without pay, while petitioner Villaseñor was
ordered dismissed from the service. These are plainly appealable decisions which are immediately
executory pending appeal.

The petitioners cannot argue that A.O. No. 17, which makes appealable decisions of the
Ombudsman immediately executory, cannot be applied to them. It is of no moment that A.O. No. 17
took effect on September 7, 2003, after the Joint Decision was issued against Mesa and Villaseñor
on June 17, 2003. Of note are the facts that the Joint Decision was approved by the Ombudsman on
November 26, 2004; the motions for reconsideration thereto were denied on March 2, 2006; and the
Joint Decision was ordered implemented on August 23, 2006, all after A.O. No. 17 had already
become effective.

Article 4 of the Civil Code does indeed provide that laws shall have no retroactive effect. Rules
regulating the procedure of courts, however, are retroactive in nature, and are, thus, applicable to
actions pending and unresolved at the time of their passage. As a general rule, no vested right may
attach to or arise from procedural laws and rules, hence, retroactive application does not violate any
right of a person adversely affected.12

The Rules of Procedure of the Office of the Ombudsman are procedural in nature and therefore,
may be applied retroactively to petitioners’ cases which were pending and unresolved at the time of
the passing of A.O. No. 17. No vested right is violated by the application of Section 7 because the
respondent in the administrative case is considered preventively suspended while his case is on
appeal and, in the event he wins on appeal, he shall be paid the salary and such other emoluments
that he did not receive by reason of the suspension or removal. It is important to note that there is
no such thing as a vested interest in an office, or even an absolute right to hold office. Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one can be
said to have any vested right in an office.13

The nature of appealable decisions of the Ombudsman was, in fact, settled in Ombudsman v.
Samaniego, where it was held that such are immediately executory pending appeal and may not be
stayed by the filing of an appeal or the issuance of an injunctive writ.14 The petitioners argue that
this particular case cannot be applied to them because it was based on Section 7, as amended by
A.O. No. 17,which cannot be applied to them retroactively. Their argument cannot be given
credence. As already discussed, Section 7 may be retroactively applied in the case of the petitioners.

It is, therefore, beyond cavil that petitioner Mesa’s appeal cannot stay the implementation of the
order of suspension against him.

Petitioner Villaseñor argues that the Ombudsman erred in implementing the order of dismissal
against him despite his pending motion for reconsideration with the same office.
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The records show that both petitioners duly filed their respective motions for reconsideration on
December 13, 2004. In the March 2, 2006 Memorandum of the Ombudsman, Mesa’s motion for
reconsideration, among others, was denied. Thus, he appealed to the CA. A review of the said
Memorandum reveals, however, that Villaseñor’s motion for reconsideration was not enumerated15
as one of the pleadings submitted for resolution, and nowhere was his liability discussed or even
mentioned therein. It is, therefore, apparent that Villaseñor’s motion for reconsideration was never
resolved by the Ombudsman, for which reason he has been unable to file an appeal with the CA.

Nonetheless, Villaseñor’s pending motion for reconsideration cannot stop his order of dismissal from
being executory. Memorandum Circular No. 01, series of 2006, of the Office of the Ombudsman,
provides in part:

Section 7, Rule III of Administrative Order No. 07, otherwise known as, the "Ombudsman Rules of
Procedure" provides that: "A decision of the Office of the Ombudsman in administrative cases shall
be executed as a matter of course."

In order that the foregoing rule may be strictly observed, all concerned are hereby enjoined to
implement all Ombudsman decisions, orders or resolutions in administrative disciplinary cases,
immediately upon receipt thereof by their respective offices.

The filing of a motion for reconsideration or a petition for review before the Office of the
Ombudsman does not operate to stay the immediate implementation of the foregoing Ombudsman
decisions, orders or resolutions.

xxx

[Emphasis supplied]

Thus, petitioner Villaseñor’s filing of a motion for reconsideration does not stay the immediate
implementation of the Ombudsman’s order of dismissal, considering that "a decision of the Office of
the Ombudsman in administrative cases shall be executed as a matter of course" under Section 7.
As already explained, no vested right of Villaseñor would be violated as he would be considered
under preventive suspension, and entitled to the salary and emoluments he did not receive in the
event that he wins his eventual appeal.

The Ombudsman did not, therefore, err in implementing the orders of suspension of one year and
dismissal from the service against the petitioners.

The Court notes, however, that under Section 8 of Rule III of the Rules of Procedure of the Office of
the Ombudsman, as amended by A.O. No. 17, the Hearing Officer shall decide a motion for
reconsideration within S days from the date of submission for resolution. Petitioner Villaseñor filed
his motion for reconsideration on December 13, 2004, on the same day as petitioner Mesa, whose
motion was duly resolved. Whether by oversight or negligence, a period nearly I 0 years has elapsed
without action on Villase11or's motion for reconsideration. The Office of the Ombudsman is called
upon to be more vigilant in carrying out its functions and in complying with the periods laid clown in
the law.1âwphi1

WHEREFORE, the petition is DENIED. The March 15, 2012 and June 18, 2012 Resolutions of the
Court of Appeals, in CA G.R. SP No. 121378 are AFFIRMED.

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The Office of the Ombudsman is DIRECTED to resolve the motion for reconsideration of petitioner
Gerardo R. ViIlaseñor in OMB-A DM-0-01-03 76 and OMB-ADM-0-01-0390 with immediate dispatch.

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