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Case Digests on Law on Public Officers and De Facto Officers

Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone. The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the same requirement. In the 1987 Constitution, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. Luego vs CSC FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was described as "permanent" but the Civil Service Commission approved it as "temporary." On 22 March 1984, the Civil Service

Law on Public Officers Sarmiento vs Mison Facts Petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Issue: Whether or not the confirmation of the Commission on Appointments is required in appointing the head of the Bureau of Customs Held: The Court ruled in the negative. It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2 Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3

Commission found the private respondent better qualified than the petitioner for the contested position and accordingly directed herein private respondent in place of petitioner's position. The private respondent was so appointed on 28 June 1984, by the new mayor; Mayor Ronald Duterte. The petitioner is now invoking his earlier permanent appointment as well as to question the Civil Service Commission's order and the private respondent's title. ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter. Held: The Supreme Court ruled in the negative. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. Hence, the Civil Service Commission's resolution is set aside Lacson vs Romero Facts: Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the Commission on Appointment on August 6, 1946. He took his oath of office on August 10, 1946, and thereafter performed the duties of that office. Upon recommendation of the Secretary of Justice, on May 17, 1949, the President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same date, the President nominated for the position of provincial fiscal of Negros Oriental respondent Romero. Both nominations were simultaneously confirmed by the Commission on Appointments on May 19, 1949.

Lacson neither accepted the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took his oath of office (the post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental, he notified Lacson of his intention to take over the office the following day, but Lacson objected. Hence this petition ISSUE: Whether or not Lacson is entitled to the position Held : The Court ruled that: The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, "there is no Power in this country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as Such fiscal of Negros Oriental. Costin v. Quimbo Facts: Petitioner Estanislao Lajer was a member of themunicipal police force of Abuyog, Leyte since January 1, 1949. He was extended a promotional appointment as sergeant of police on October 15,

1958. On November 25, 1959, the outgoing municipal mayor of Abuyog accorded Lajer another promotional appointment as chief of police. This last appointment was not attested and approved as required by law. On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the police department. On the same day, the municipal mayor extended to respondent Higinio Verra a permanent appointment as Chief of Police of Abuyog. Verra immediately took over the position. His appointment was eventually approved as permanent one. On January 19,1960, Lajer and eight other members of the police force filed an action for mandamus against the municipal mayor, municipal treasurer and the municipal council of Abuyog, contesting their separation from the service. While the petition was pending, there was again a change in the municipal administration, as a result of the 1963 elections. The newly elected municipal mayor dismissed Verra. Verra was replaced by Victoriano SIlleza, officer-in-charge when petitioner Marcial Costin was appointed as chief of police. Verra filed a case against Costin, the municipal mayor and municipal treasurer. Lajer and other eight members of police force was found to be illegally dismissed. Lajer was reinstated as chief of police. Verra filed an amended petition. The respondent judge rendered a decision in favor of the reinstatement of Verra. Issue: Whether or not the appointment of respondent Verra appointment in the position of Chief of Police was valid and consequently his removal therefrom illegal. Held: The Supreme Court ruled that when respondent Verra was appointed chief of police on January 14, 1960, Lajer had just been dismissed from office with several other members of the police force. The validity of Verras appointment, therefore hinges on the legality of Lajers removal. It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position, may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated.

Monsanto v. Factoran Facts: In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration. By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf. Issue: Whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. Held: The Supreme Court ruled that the plea of the petitioner for reinstatement to her former office must be rejected. The petitioner was pardoned pending her appeal from her conviction for an offense which carried with it the penalty of disqualification from office. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the

office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. Civil Liberties Union v. Executive Secretary Facts: Two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution. It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.83815 and as Annex "B" in G.R. No. 83896 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return,

reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284.Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. Issue: Whether or not Executive Order No.284 was unconstitutional. Held: On the strength of the foregoing constitutional provision, the Supreme Court declared as unconstitutional Executive Order No. 284 which, in effect, allowed Cabinet members, their undersecretaries and assistant secretaries and other appointive officials of the Executive Department to hold other positions in the government albeit subject to the limitations imposed therein. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department heads ability and expertise, he should be allowed to attend his duties and responsibilities without the distraction of other

government offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. LABO v. COMELEC G.R. No. 86564 . August 1, 1989 FACTS: Ramon Labo asked the Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. ISSUE: Whether or not Ramon Labo was a citizen of the Philippines at the time of his election on 18 January 1988, as mayor of Baguio City. HELD: The Court ruled that the petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. The Court held that petitioner Ramon J. Labo, Jr. is not a citizen of the Philippines and therefore disqualified from continuing to serve as Mayor of Baguio City. He is ordered to vacate his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and

executory. The temporary restraining order dated January 31, 1989, is lifted. YEE v. DIRECTOR OF PUBLIC SCHOOLS No. L-16924, April 29, 1963 FACTS: An appeal from a judgment rendered by the Court of First Instance of Antique, declaring illegal and contrary to law the removal of the petitioner from her position as school teacher in the Division of Antique on October 28, 1957, and ordering the respondents to reinstate the petitioner forthwith to her former position, with all the privileges appurtenant thereto, and to cause to be paid her salary of P140.00 a month from November 1, 1957 until the date of her reinstatement, without pronouncement as to costs. The petitioner was a public school teacher and had been appointed as such teacher in the Division of Antique in 1951; A civil service eligible as a regular national teacher having passed the Junior Teachers' (Regular) Examination that was given on or about December 29, 1955. In the school year 1957-1958 the petitioner was actually teaching in the Buhang Elementary School, Buhang Hamtic, Antique; Having married Mr. Ng Foo alias Pio Chet Yee, a Chinese citizen, on August 10, 1957 is presently a Chinese citizen; That effective sometime on October 28, 1957 the petitioner was removed from her teaching service by virtue of Special Order No. 296, series of 1957, dated October 25, 1957, issued by the Division Superintendent of Schools of Antique and this was pursuant to the 2nd indorsement of the Director of Public Schools dated October 14, 1957, disauthorizing the continuance in the service of the petitioner on account of Circular No. 40, series of 1947; That prior to the effectivity of the order of removal the petitioner wrote a letter to the Commissioner of Civil Service dated October 25, 1957 hereto attached as; That petitioner wrote another letter dated September 26, 1958 addressed to the Division Superintendent of Schools of Antique asking for reinstatement; That Special Order No. 296 of the Division Superintendent of Schools of Antique the ruling of the Director of Public Schools in his 2nd indorsement dated

October 14, 1957, and Circular No. 40, series of 1947 had never been appealed by the petitioner to the Secretary of Education; That when this case was filed sometime on October 11, 1958, the original respondents were only the Director of Public Schools and the Division Superintendent of Schools of Antique; That the petitioner came to know for the first time of the actions taken on her letter of October 25, 1957 herein, sometime on January 9, 1959 when the respondents Division Superintendent of Schools and the Director of Public Schools submitted their evidence in support of their motion to dismiss and which documents are hereto attached wherein it appears that the Secretary of Education in its 3rd indorsement dated March 17, 1958 concurs with the recommendation of the Director of Public Schools for denial of the reinstatement of the petitioner to the service and that on August 26, 1958, in its 4th indorsement the Commissioner of Civil Service likewise concurs in the action separating Mrs. Antonio A. Yee from the teaching service. ISSUE: Whether or not Yee is qualified as a teacher, under a public function which may be performed by Filipino citizens only. HELD: The Court ruled that there is no doubt that her removal as a public school teacher because of loss of Filipino citizenship is legal. Not being included in section 671 of the Revised Administrative Code which enumerates the officers and employees constituting the unclassified service, teaching in a public school is in the classified service a public function which may be performed by Filipino citizens only. An applicant for admission to examination for entrance into the civil service must be a citizen of the Philippines (section 675 of the Revised Administrative Code). And after he had qualified himself to be eligible for appointment to a civil service position and had been appointed to such position, he must continue to be such citizen. A voluntary change of citizenship or a change thereof by operation of law disqualifies him to continue holding the civil service position to which he had qualified and had been appointed. Such being the case, upon the appellee's marriage on 10 August 1957 to Ng Foo alias Pio Chet Yee, a Chinese citizen, the appellee

ceased to be a citizen of the Philippines, and for that reason she is no longer qualified to continue holding the civil service position to which she had qualified and had been appointed. Section 681 of the Revised Administrative Code which provides that In making selection from lists of certified eligibles furnished by the Commissioner, appointing officer shall, when other qualifications are equal, prefer: First. Citizens of the Philippines. Second. Honorably discharged soldiers, sailors, and mariners of the United States, is no argument against the limitation of holding public offices to citizens of the Philippines. The preference provided for in the section quoted above was operative during the period before 4 July 1946 or before the Philippines became an independent nation. IN VIEW OF THE CONCLUSION ARRIVED AT, the point of exhaustion of administrative remedy need not be passed upon. The judgment appealed from is reversed and petition denied, without pronouncement as to costs in both instances. LAUREL v. DESIERTO G.R. No. 145368, April 12, 2002 FACTS: President Aquino issued Administrative Order No. 223 "constituting a Committee for the preparation of the National Centennial Celebration in 1998." The Committee was mandated "to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress. President Ramos issued Executive Order No. 128, "reconstituting the Committee for the preparation of the National Centennial Celebrations in 1988." It renamed the Committee as the "National

Centennial Commission." Appointed VicePresident Laurel as chair. Its duty is to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress and its existence shall terminate upon the completion of all activities related to the Centennial Celebrations. A corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created. Laurel was among the nine (9) Expocorp incorporators and was elected Expocorp Chief Executive Officer. Senator Coseteng delivered a privilege speech denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. The privilege speech was referred to the Blue Ribbon Committee for investigation. President Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens committee to investigate all the facts and circumstances surrounding the Philippine centennial projects. Senator Saguisag was appointed to chair the Committee. Blue Ribbon Committee filed its report. recommending the prosecution by the Ombudsman/DOJ of Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation of the anti-graft law. The Saguisag Committee issued its own report. It recommended the further investigation by the Ombudsman, and indictment, in proper cases of, Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A.

No. 6713, and Article 217 of the Revised Penal Code. The Bureau of the Office of the Ombudsman. issued its Evaluation Report, recommending: 1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No.3019, as amended in relation to PD 1594 and COA Rules and Regulations; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant. Apostol, OIC-Director of the EPIB, directed Laurel to submit his counter-affidavit and those of his witnesses. Laurel filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. Ombudsman denied motion to dismiss. EPIB found probable cause to indict respondents LAUREL and PEA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594. Desierto, in his capacity as Ombudsman, approved the resolution with respect to Laurel but dismissed the charge against Pea. Laurel moved for a reconsideration but the motion was denied. Hence this present petition for certiorari. ISSUE: (1) Whether or not Ombudsman has jurisdiction over the case. (2) Whether or EXPOCORP is a private corporation and not a GOCC. (3) Whether or not NCC was not a public office. (4) Whether or not Laurel is not a public officer. HELD: (1) The Court ruled that the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer

or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence 13 is that provided by Mechem, a recognized authority on the subject: a public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed bylaw or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. The Court hold that the NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." The executive function, therefore, concerns the implementation of the policies as set forth by law. (2) The NCC was precisely created to ensure a more coordinated and synchronized celebration of the Philippine Centennial and wider participation form the government and non-government or private organizations and to rationalize the relevance of historical links with other countries and to carry them into effect. E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the "need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and non-government or private organizations." It also referred to the "need to

rationalize the relevance of historical links with other countries." (3) and (4) There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy. Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached. But it is a public office, nonetheless. The Court dismissed the petition. De Facto Officers Tayko vs Capistrano Facts: The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First Instance of Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases for violation of the election law filed in the Court of First Instance of Oriental Negros arising in the Court of First Instance of Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and acted as auxiliary judge of the Province of

Oriental Negros; that between the auxiliary judge and the respondent judge herein there was an understanding, and the assignment of the said auxiliary judge was made with this understanding, that the said auxiliary judge so designated would hear and take cognizance of all election protests and criminal actions then pending or to filed arising from the said last general election, and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary cases pending in the said court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still trying to take cognizance of the election protests an criminal actions in said court; that said respondent is neither a judge de jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the Court of First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the said province; and that he has tried, and continues to try, to act as such judge and that there is reasonable ground to believe that he will take cognizance of the cases in question unless he be restrained by order of this court. Issue: Whether or not the respondent judge is a de facto judge Held: The court ruled that the respondent is a de facto judge Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto. He differs, on the one hand, from a mere usurper who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and whose term of office has not expired. Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an incumbent of an office will hold over after the conclusion of his term until the election and qualification of a successor. When a judge in good faith remains in office after his title has ended, he is a de facto officer.

Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular judge seems obviously erroneous. In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full exercise of his public judicial function, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned. Rodriguez vs Tan Facts: Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400; that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest. Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and, as such, he was during the time he discharged that office a mere de facto officer, he should reimbursed

to the plaintiff the salaries and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a rule tends to curb election frauds and lessens the danger and frequency of usurpation or instrusion into the office. Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in the present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to collect and received the salaries and emoluments thereunto appertaining as a compensation for the salaries he has rendered. ISSUE : whether defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the Senate Electoral Tribunal The Court upheld the point of view of the defendant. There is no question that the defendant acted as a de facto officer during the time he held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with the ordinary course of events. This is

simple justice. The emolument must go to the person who rendered service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in connection with the provisions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld. REGALA v. COURT OF FIRST INSTANCE OF BATAAN No. L-781, November 29, 1946 A de facto officer is one who is in possession of the office and is discharging its duties under color of authority, and by color of authority is meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer. If a person appointed to an office is subsequently declared ineligible therefor, his presumably valid appointment will give him color of title that will confer on him the status of a de facto officer. N.B.: Di ko mahanap yung English translation ng case na to. Ito lang yung nahanap ko na importante. Sensya na. Try ko ulit hanapin. :D Solis v. CA **Pasensya na, mali yung nahanap kong case sa net. Kaya eto na lang ang nilagay ko, parphrase galing sa book: =) Issue: Whether or not a decision is void if promulgated after the judge who rendered it had permanently ceased to be judge of the court where he sat in judgment is void. Held: The Supreme Court declared the judgment void, for it is now firmly established in our jurisprudence that a decision is void if promulgated after the judge who rendered it had

permanently ceased to be judge of the court where he sat in judgment. To the argument that he should be considered a de facto judge, Justice J.B.L. Reyes said: The main ground upon which the Court of Appeals held the contested judgment of the Court of First Instance to be valid is that since the approval of Republic Act 1186, effective 20 June 1954, was not yet publicly ore generally known on 21 June 1954, Judge Leuterio should be considered as a judge de facto of said court and the promulgation of his appealed decision on said date is valid and legally effective. This is a misapplication of the doctrine laid down in the very case cited by the Court of Appeals. MONROY v. COURT OF APPEALS No. L-23258 . July 1, 1967 FACTS: Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission on Elections, per resolution, approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question. Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.

This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of Appeals. The present case for injunction and quo warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case cannot therefore be applied in this case. ISSUE: Whether or not a rightful incumbent may recover salary received by the de facto officer. HELD: The Court ruled that it is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title" that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers. The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office. Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner.

Menzon v. Petilla Facts: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the ViceGovernor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the ViceGovernor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. The Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. Issue: Whether or not s de facto officer has a right to emoluments while discharging the duties of office of Vice-Governor. Held: The Supreme Court , in sustaining a de facto officers right to emoluments while actually discharging the duties of the office of ViceGovernor, declared In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local

Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting ViceGovernor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner exercised the duties attached to the Office of the ViceGovernor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting ViceGovernor of the province of Leyte

On January 6, 1989, petitioner filed with the Civil Service Commission (CSC) a complaint for illegal dismissal with preliminary mandatory injunction. Upon motion to dismiss by NHC on the ground of the CSCs lack of jurisdiction over the dispute, the CSC dismissed the complaint. The dismissal was grounded on Article IX, Sec. 2 (1) of the 1987 Constitution, which provides that The civil service embraces all branches, subdivision, instrumentalities and agencies of the Government, including government owned andcontrolled corporations with original charters. (italics supplied) Considering that NHC was a GOCC without an original charter, it being created under the Corporation Law, the CSC dismissed the complaint. On April 28, 1989, petitioner filed with respondent NLRC a complaint for illegal dismissal with preliminary mandatory injunction against private respondent NHC. Labor Arbiter Caday ruled in his favor as there was evidence that the criminal case against petitioner was fabricated and therefore there was no basis legal or factual for his dismissal. On appeal by NHC, the NLRC reversed the Arbiter Caday on the ground of lack of jurisdiction. ISSUE: Whether or not petitioners case is governed by the Labor Code HELD: Yes, it is governed by the Labor Code. NLRCs dismissal reversed. At the time petitioner filed his first complaint, jurisdiction over GOCCS was indeed with the CSC, as provided for in Art. 277 of the Labor Code (PD 442), which is the same as Art. II-B, sec. 1(1) of the 1973 Constitution. However, when the 1987 Constitution took effect, the jurisdiction of the CSC had been limited only to GOCCs with an original charter. Since the NHC was created under the former Corporation Law, under the present Constitution, it would be governed by the Labor Code. MATURAN VS. MAGLANA

113 SCRA 268 FACTS: 1. Petitioner Tereso Maturan was appointed as patrolman of San Francisco, Southern Leyte. 2. He was promoted to the rank of police sergeant . 3. The appointments of petitioner were provisional. 4. His provision appointments were renewed. 5. Respondent Mayor Santiago Maglana suspended petitioner from office because of two pending criminal case against him. 6. Respondent Vice-Mayor, then the acting Mayor, instructed petitioner to tender his resignation pursuant to Letter of Instruction No. 14 of the President of the Philippines 7. Petitioner tendered his letter of resignation and was approved three months later. 8. Petitioner sought the reconsideration of the approval of his resignation for being null and void on the ground that LOI No. 14 does not apply to him. 9. In the meantime, the two criminal cases were dismissed. 10. Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed petitioner of the dismissal of the criminal cases, and the preventive suspension has been lifted, and petitioner was directed to report for duty to his Chief of Police. 11. Petitioner reported for duty but Chief of Police Francisco Duterte refused to accept the former in the police force. 12. Respondent Mayor sent a letter to the Chairman of the National Police Commission requesting advice as to whether the resignation tendered by petitioner was valid.

CASE TITLE: JUCO vs. NATIONAL LABOR RELATIONS COMMISSION GR NO: G.R. No. 98107 YEAR: 1997 ISSUE/TOPIC: CSC, jurisdiction over corporations Petitioner Benjamin Juco worked as a project engineer of respondent National Housing Corporation (NHC). He was separated from service for having been implicated in a crime of theft and/or malversation of public funds. On March 25, 1977, petitioner filed a complaint for illegal dismissal against NHC with the Department of Labor. It was dismissed on the ground that the NLRC had no jurisdiction over the case. Upon appeal to the the NLRC, the NLRC reversed the Labor Arbiters dismissal. NHC then appealed before the Supreme Court (SC) and on January 17, 1985, the SC set aside the NLRCs decision thereby reinstating the Labor Arbiters dismissal.

13. The Deputy Executive Commissioner stated that since petitioner resigned from office, the lifting of his suspension is no longer feasible, the same having been rendered moot and academic. 14. Petitioner filed a Petition for Mandamus with claim for backsalaries, travelling expenses and damages. 15. He alleged that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of Par. 7 of Presidential Decree No. 12-A which provides: Members of the police force who have been preventively suspended shall, upon examination be entitled to immediate reinstatement and payment of the entire salary they failed to receive during the period of suspension. 16. Respondent court dismissed the petition for lack of merit. 17. The court a quo agreed with the opinion of the National Police Commission that resignation submitted by the police force in compliance with the provisions of LOI No. 14 are valid. 18. Lastly, the trial court ruled that since all petitioners appointment were provisional, he can be removed at any time by the appointing power. ISSUE:Should petitioner be reinstated? HELD:Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service eligibility for any position in the government. Such lack of civil service eligibility makes his appointment temporary and without a definite term and is dependent entirely upon the pleasure of the appointing power. Th fact that petitioner subsequently obtained a testimonial eligibility is of no moment. At the time he received his appointment, petitioner had no eligibility. As such what is required is a new appointment, not merely reinstatement. But even

then, he cannot compel the Mayor to re-appoint him for the power to appoint is in essence discretionary and the appointment power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position filled. Corpus vs. Cuaderno, Sr. GR No. L-17860, March 30, 1962 De Leon, J. FACTS: Petitioner was holding the position of Special Assistant to the Governor of the Central Bank. He was charged in an administrative case resulting in his suspension by the Monetary Board and the creation of a three-man committee to investigate him. After conducting hearings, the committee recommended petitioners reinstatement. The Monetary Board, however, adopted a resolution stating that petitioner is deemed resigned as of the date of his suspension. Subsequently, respondent Mariano Marcos was appointed to replace petitioner. Petitioner then filed a petition for certiorari, mandamus and quo warranto. After several hearings, the court dismissed the petition on the ground that petitioner did not exhaust all administrative remedies. Petitioner filed a motion for reconsideration but was denied. ISSUE: Whether or not petitioner should have exhausted all administrative remedies HELD: NO. The doctrine of administrative remedies does not apply where, by the terms or implications of the statute authorizing an administrative remedy, such remedy is permissive only, warranting the conclusion that the legislative intended to allow the judicial remedy even though the administrative remedy has not been exhausted. G.R. No. L-29661 May 13, 1969

JOVITO O. CLAUDIO, as Mayor of Pasay City; FRANCISCO A. VILLA and ABELARDO SUBIDO, as Commissioner of Civil Service, respondents. This is a petition for mandamus to compel the respondent Jovito O. Claudio, mayor of Pasay City, to appoint the petitioner Basilio M. Pineda chief of police of the city, on the theory that, as the incumbent deputy chief of police and therefore the officer next in rank, the petitioner is legally entitled to be promoted to the said position. Upon the death of Col. Mariano Tumaliuan on August 28, 1968, the position of chief of police of Pasay City became vacant. To fill the vacancy, Claudio appointed the respondent Francisco Villa, a state prosecutor in the Department of Justice, but the respondent Commissioner of Civil Service Abelardo Subido held the appointment in abeyance until other persons who, in Subido's opinion, had preferential right to appointment have been considered. One of these persons is Pineda who, as deputy chief of police, "is a person next in rank entitled to promotional preference for the position of Chief of Police ... before others may be considered (for) transfer, reinstatement, reemployment or certification." Subido defined his stand in his letter to Mayor Claudio of September 17, 1968, the text of which reads: Sir: This refers to the proposed appointment of Mr. FRANCISCO A. VILLA, a Bar (RA 1080) and second grade eligible, as Chief of Police in the Police Department of Pasay City at P12,000 per annum effective September 1, 1968, vice Mariano Tumaliuan, deceased. Section 4 of Republic Act No. 5185 (Decentralization Act of 1967) in its paragraphs 4 and 5 provides: In cases of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointment from a list of the five next ranking eligible and qualified persons

BASILIO M. PINEDA, as Deputy Chief of Police of Pasay City, petitioner, vs.

as certified by the Civil Service Commission: Provided, That these five persons shall have stated beforehand that they will assume the position, if appointed. (paragraph 4) The ranking shall be based on such factors as class of province, city or municipality where the vacancy occurs, seniority, efficiency rating, extraordinary qualifications, and other supplementary criteria as may be prescribed by the Civil Service Commission.lawphil.et Paragraph 3, Section 23 of Rep. Act 2260, also provides: Whenever a vacancy occurs in any competitive or classified position in the government or in any government-owned or controlled corporation or entity, the officer or employee next in rank who is competent and qualified to hold the position and who possesses an appropriate civil service eligibility shall be promoted thereto: Provided, That should there be two or more persons under equal circumstances, seniority shall be given preference. And provided, however, That should there be any special reason or reasons why such officer or employee should not be promoted, such special reason or reasons shall be stated in writing by the appointing official and the officer or employee concerned shall be informed thereof and be given an opportunity to be heard by the Commissioner of Civil Service, whose decision in such cases shall be final. If the vacancy is not filled by promotion as provided herein, then the same shall be filled by transfer of present employees in the government service, by reinstatement, by reemployment of persons separated through reduction in force, or by certification from appropriate register of eligibles in accordance with rules promulgated in pursuance of this Act. Interpreting this latter provision in the case of Millares vs. Subido, et al., G.R. No. L-23281, August 10, 1967, the Honorable Supreme Court ruled: 'In other words, a vacant position (be it new or created by the cessation of an incumbent in office), shall be filled by promotion of the ranking officer or employee, who is competent and

qualified to hold the same. And only where, for special reason or reasons of which the affected officer or employee will be notified, this mode of recruitment or selection cannot be observed, that the position may be filled either by transfer, or reemployment, or by getting from the certified list of appropriate eligibles, in that order.' (Emphasis by the Court). The above-quoted provisions and Supreme Court ruling spell out categorically the priorities in the modes of filling a vacancy in the competitive service, to wit: first priority is by promotion of next in rank employees from within the agency, second is by transfer of employees in other agencies, third is by reinstatement and reemployment of former employees, and last by certification from the appropriate eligible lists. Conformably with these provisions and ruling, this Office announced in the Manila Times of September 5, 1968, the mode of filling vacancies for Chief of Police for Manila and Pasay City and the qualifications of those who may apply.1awphil.et A Xerox copy of the clippings of the Manila Times is hereto attached as Annex 'A'. The said announcement was also the subject of a news item published in the same issue of the Manila Times, a copy attached as Annex As of this writing, the following persons, in the order of priority, are hereby certified for the said position: A. Promotion (next-in-rank) 1. Basilio Pineda formerly chief of police of the Pasay City Police Department, a chief of police eligible, and presently Deputy Chief of Police of the Pasay City Police Department. B. Transfer 1. Major Jesus Dizon a Xerox copy of his curriculum vitae is attached. 2. Albino S. Mondares a Xerox copy of his curriculum vitae is attached.

C. Reinstatement/Reemployment 1. Jaime Valencia formerly chief of police of Pasay City Police Department whose appointment was bypassed. His information sheet is on file in that Office. D. Certification 1. Roland C. Siquijor (Chief of Police eligible.) 2. Abelardo Tesoro (Chief of Police eligible.) 3. Francisco Villa the proposed appointee. It is significant to note in this connection that Mr. Basilio Pineda, who is presently the Deputy Chief of Police of Pasay City, a Chief of Police eligible and formerly the Chief of Police of Pasay City, is a person next in rank entitled to promotional preference for the position of Chief of Police. Under the law and Supreme Court ruling above cited, Mr. Pineda should be considered for promotion before others may be considered by transfer, reinstatement, reemployment, or certification. As a matter of fact this Office in a letter dated August 5, 1968, and reiterated in a 1st endorsement dated August 28, 1968, has previously directed that Office to consider Mr. Pineda for designation as the Acting Chief of Police in place of Mr. Francisco Grape, who does not possess the appropriate eligibility and who is holding on to the position of Deputy Chief of Police by virtue of a preliminary writ of injunction issued by the CFI of Rizal. Information is requested as to the reason why the directive of this Office contained in the said communication has not been complied with. If Mr. Pineda may not be considered, the special reason or reasons therefor must be stated in writing and submitted to this Office. The same procedure should also be followed if Messrs. Dizon, Mondares and Valencia may not be considered for the said position before Messrs. Siquijor, Tesoro

and Villa may be considered for appointment thereto. Premises considered, the processing of the proposed appointment of Mr. Francisco Villa is held in abeyance until after the persons with appointment preference have been duly considered by that Office, and for special reason or reasons, could not be appointed Chief of Police. In the meantime, the directive of the Office contained in the letter dated August 5, 1968 should be complied with by that Office. In reply, Claudio for the first time disclosed his reasons for not appointing Pineda to the vacant position. In his letter to Subido on September 20, he explained: . As a native of Pasay and having been an official hereof for the past eight (8) years I am fully cognizant of the performance in office of Messrs. Basilio Pineda, Jaime Valencia, Roland C. Siquijor and Abelardo Tesoro and they cannot boast of any improvement they have introduced to lift the sagging inefficiency of the local police organization. The actual members of untrained and undisciplined men still persist. On September 30, 1968 the Secretary of Justice, to whom the matter had earlier been referred, submitted a memorandum to the President substantially to the effect that section 23 of the Civil Service Act of 1959 does not apply in the case of the chief of a police agency whose appointment, it was contended, is governed by the Police Act of 1966. Pertinent excerpts from the said memorandum are hereunder quoted: 3. Under the Police Act, ... it is specifically provided (in section 17) that in case of permanent vacancy caused by death, etc., in a local police agency, "the mayor shall fill such vacancy as provided in this Act" and not in accordance with the Civil Service Act and rules and regulations. Congress is presumed to be aware of certain rules or limitations in the general civil service law which operate to restrict or curtail the discretion of the appointing power; hence, this special rule which makes it indubitable that the general rules

governing appointment in the civil service, are inapplicable to appointments in a police service, except of course, where it so expressly provided therein or incorporated in the implementing rules and regulations. 4. As regards the chief of police, there is even another provision which serves to underscore this special rule. I refer to the last paragraph of Section 10, supra, which states that in case there is no civil service eligible available for the position of chief of police, "provisional appointment may be made in accordance with the Civil Service Law and Rules." It is implicit in this provision that in other cases, especially those covered by section 17, the appointment shall be permanent in nature and "as provided for in this (Police) Act." 5. ... [A]side from the provision (of section 11) specifically forbidding the filling of any position by permanent appointment unless the appointee has the appropriate eligibility, there appears to be no other statutory limitation on the City Mayor's discretion in the selection of the chief of police so long as the one chosen possesses the minimum qualifications prescribed by the Act. The Police Manual has included the civil service rule on promotion which gives the next-in-rank, among others, preference in the filling of the vacant position. However, upon close examination of Rule VI, it is readily seen that the promotional rules therein set forth find application only to the filling of positions in the police service below that of chief of police he being the one charged with the duty and responsibility of screening and recommending for promotion the deserving members of the police agency (sections 2, 3, 4, 5 and 6). Of course, in every case the next-in-rank or deputy chief, by reason of his position, would surely be among the first to be considered by the City Mayor in the selection of the chief of police, if qualified and competent; but he cannot claim any preferential right over others in the list of eligibles based on the aforementioned rule found in the Civil Service Act. 6. This was the legal situation at the time of the enactment of the Decentralization Law (RA 5185, approved on September 12, 1967). I am unable to see any substantial change resulting from the

insertion in section 4 thereof, quoted supra, of the provision that the heads of offices and their respective assistants, whose salaries are paid out of city funds, shall be appointed by the City Mayor "subject to the civil case law, rules and regulations." Obviously, this clause refers to office heads whose appointments, unlike that of the chief of police, are not covered by any special law or provision and should therefore be appointed in accordance with the general civil service law and rules ... What is more important and far reaching in Section 4 is the provision which categorically states that the offices of the aforementioned heads and assistant heads 'shall be filled by appointment from a list of five next ranking eligible and qualified persons as certified by the Civil Service Commissioner," which shall be based on such factors as class of the city where the vacancy occurs, seniority, efficiency rating, extra-ordinary qualifications, etc. The import of this special provision is that the filling of the positions of the office heads and assistant heads is to be governed by this special rule, unencumbered by the civil service rule on the preferential right of the next-inrank and others seeking transfer, reinstatement or reemployment in order to give the City Mayor a wide latitude in the choice of key officials. ... Answering the memorandum of the Secretary of Justice, Subido contended in his own memorandum to the President of October 14, 1968 that section 23 of the Civil Service Act does not conflict with the provisions of the Police Act of 1966. "In fact, it was incorporated verbatim in the Police Manual. But what is important is that the filling of positions in the police service including that of Chief of Police in accordance with the procedure outlined in paragraph 3 of Sec. 23 of Republic Act 2260 in relation to Sec. 4 of the Decentralization Act (Rep. Act 5185) would strengthen the police service. Vice versa, leaving the matter of promotion solely to the discretion of the Mayor without regard to the order of priorities contained in the Civil Service Law, would result in its demoralization." Nor did he think the mayor's reasons for bypassing Pineda to be valid, considering that just a few months before the mayor had appointed

Pineda deputy chief of police. "If Mr. Pineda can qualify as Deputy Chief of Police in the Mayor's estimation (and thus under Sec. 17 of the Police Act, he shall automatically assume the office of Chief of Police in case a temporary vacancy occurs in said office), how can Mayor Claudio now claim in all sincerity that Mr. Pineda is not qualified to be chief of Police?" Respondents Claudio and Villa point out, on the other hand, that Subido should be held in estoppel on the basis of his approval of the very appointment of Pineda as deputy chief of police of Pasay City, where no list of those with "preferential rights" and no inquiry as to the mayor's reasons for not appointing the police officer next-in-rank in the Pasay City police department was made; and that advising the mayor that "the filling of the vacancy for Deputy Chief of Police is governed by Section 4, R.A. 5185," Subido merely issued a certification, containing the names of "five ranking qualified and eligible persons" including Pineda, and evidently did not consider as applicable the provisions on preferences of Section 23 of the Civil Service Act nor the ruling in Millares v. Subido 1 now invoked by him. Subido admitted in his reply that Memorandum Circular No. 1, S. 1968, dated January 12, 1968, under which he issued "priorities," "overlooked the Millares case and relied solely on the provision of Sec. 4, Rep. Act 5185," but averred that later, after having become convinced that the Millares ruling was applicable to the filling of vacancies of heads and assistant heads of local offices under the Decentralization Law, he issued Memorandum Circular No. 21, S. 1968, dated September 5, 1968, providing for such procedure of priorities, which was the procedure in force as of the date the appointment of Villa was received in his office. As no solution to the impasse was in sight, Pineda filed the present action, contending that, under section 23 of the Civil Service Act, as interpreted in Millares, in relation to Section 4 of the Decentralization Act, it is the duty of the mayor to promote him as the ranking employee, and that only if for some "special reasons" he cannot be

promoted may others be considered for transfer, reemployment or certification, "in that order". On the other hand, Claudio's position is that what controls is not section 23 of the Civil Service Act but section 8 of the Police Act of 1966, which states that a chief of police may be appointed "from the list of eligibles certified by the Civil Service Commissioner". As Villa is one of these certified, Claudio concludes that his appointment as chief of police is in order. Section 17 of the Police Act of 1966 expressly provides that "In case of vacancy caused by death, retirement, resignation, suspension or removal in a local police agency, the mayor shall fill such vacancy as provided for in this Act," obviously referring to Section 8 thereof will states that "appointment to a local police agency shall be made by a mayor from the list of eligibles certified by the Civil Service Commission." The validity of Villa's appointment, because he is one of those mentioned in the certified list of eligibles, as required by the Police Act of 1966, could be here and now sustained, without need of further discussion, were it not for the subsequent enactment in 1967 of the Decentralization Act, particularly, Section 4 thereof, which provides: Appointment of Heads, Assistant Heads of Local Offices and Their Subordinates. The Provincial Assessor, Provincial Agriculturist and other heads of offices entirely paid out of provincial funds and their respective assistants shall, subject to civil service law, rules and regulations, be appointed by the Provincial Governor: Provided, however, That this section shall not apply to Judges, Auditors, Fiscals, Division Superintendents of Schools, Supervisors, Principals, Provincial Treasurers, Provincial Health Officers and District Engineers. The City Assessor, City Agriculturist, City Chief of Police and City Chief of Fire Department and other heads of offices entirely paid out of city funds and their respective assistants or deputies shall, subject to civil service law, rules and regulations, be appointed by the City Mayor: Provided, however, That this section shall not

apply to Judges, Auditors, Fiscals, City Superintendents of Schools, Supervisors, Principals, City Treasurers, City Health Officers and City Engineers. xxx xxx xxx

In case of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointing from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commissioner: Provided, That these five persons shall have stated beforehand that they will assume the position if appointed. The ranking shall be based on such factors as class of province, city or municipality where the vacancy occurs, seniority, efficiency rating, extraordinary qualifications and other supplementary criteria as may be prescribed by the Civil Service Commission. (R.A. 5185) The pertinent provisions thereof to the effect that the heads of offices entirely paid out of city funds, including the chiefs of police, and their assistants or deputies, shall, "subject to civil service law, rules and regulations, be appointed by the City Mayor" and that the mayor "shall fill them by appointment from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commissioner," throw us right back to the basic Civil Service Act. It behooves us, specifically, to determine the scope and meaning of the provisions of Section 23 which deal with the "Recruitment and Selection of Employees." The contending parties have thus thrust upon this Court the basic issue of the proper application and scope of Section 23 of the Civil Service Act in relation to the provisions of the Decentralization Act of 1967 and the Police Act of 1966. The petitioner states the issues as follows: (1) Is it mandatory and ministerial upon the Mayor of Pasay City to promote to the vacant position of Chief of Police, a competitive position, petitioner Pineda, the incumbent Deputy Chief of Police, who

is the competent and qualified next-in-rank employee with the appropriate civil service eligibility? (2) Is respondent Mayor's appointment of respondent Villa to the said classified position of Chief of Police null and void, considering that he is an outsider, he is not next-in-rank employee and he has not passed the Civil Service examination for Chief of Police? The respondents Claudio and Villa formulate the issues, thus: (1) Is the appointment of the Chief of Police of Pasay City to be regulated by Section 8 of the Police Act of 1966, or by Section 4 of the Decentralization Act and the third paragraph of Section 23 of the Civil Service Law? (2) If the appointment of the Chief of Police of Pasay City is subject to the provisions of section 4 of the Decentralization Act, is it mandatory that respondent Mayor appoint Petitioner to the position? The respondent Subido, in his Answer, "submits the matter to the judicious consideration of this Honorable Court," emphasizing the urgency of the resolution of the legal issues presented, "considering that the questioned appointment of respondent Francisco A. Villa would be the first appointment under the Decentralization Act and any decision thereon would guide the future action of the Civil Service Commission and other offices concerned in the application of said law." The first two paragraphs of Section 23 of the Civil Service Act (the third paragraph we have already reproduced above, supra), read together with Section 1 of Article XII of the Philippine Constitution which directs that "[A]ppointments in the Civil Service ... shall be made only according to merit and fitness, to be determined as far as practicable by competitive examinations," provide the key for the proper application and interpretation of the "next-in-rank" rule enunciated in the third paragraph of said Sec. 23. These first two paragraphs set the guide norm that:

SEC. 23. Recruitment and Selection of Employees. Opportunity for government employment shall be open to all qualified citizens and positive efforts shall be exerted to attract the best qualified to enter the service. Employees shall be selected on the basis of their fitness to perform the duties and assume the responsibilities of the positions whether in the competitive or classified or in the non-competitive or unclassified service. (Emphasis supplied) The granting of equal opportunity for government employment to all qualified citizens and the exertion of positive efforts to attract the best qualified to enter the service may be implemented effectively only through the judicious exercise of the best judgment and discretion of the appointing authority. Resolving the issue squarely presented, we hold that it is neither mandatory nor ministerial for the mayor of Pasay City to promote to the vacant position of chief of police the incumbent deputy chief of police Pineda, and that the appointment to said position of the respondent Villa, who has been certified as qualified and eligible, although an "outsider" and not the nextin-rank employee, is valid, in the same manner that the appointment of Pineda, although an "outsider" and not the next-in-rank, to the position of deputy chief of police was valid. The Civil Service Act does not peremptorily require the mayor to promote the officer next in rank. Section 23 thereof does not require that vacancies must be filled by promotion, transfer, reinstatement, reemployment or certification, in that order. That would be to construe the provision not merely as a legislative prescription of qualifications but as a legislative appointment, repugnant to the Constitution. What it does purport to say is that as far as practicable the person next in rank should be promoted, otherwise the vacancy may be filled by transfer, reinstatement, reemployment or certification, as the appointing power sees fit, provided the appointee is certified to be qualified and eligible which is the basic requirement of the Civil Service

Act, as well as of the Police Act and the Decentralization Law. To construe section 23 the way the petitioner urges it should be, would be to unduly interfere with the power and prerogatives of the local executive as reinforced by the Decentralization Act at the same time that it would frustrate the policy of the Police Act "to achieve and attain a higher degree of efficiency in the organization, administration, and operation of local police agencies" 2 and that of the Civil Service Act "to attract the best qualified to enter the service." For it is not enough that an aspirant is qualified and eligible or that he is next in rank or line for promotion, albeit by passive prescription. It is just as necessary, in order for public administration to be dynamic and responsive to the needs of the times, that the local executive be local the choice of men of his confidence, provided they are qualified and eligible, who in his best estimation are possessed of the requisite reputation, integrity, knowledgeability, energy and judgment. After all, it is the local executive, more than anyone else, who is primarily responsible for efficient governmental administration in the locality and the effective maintenance of peace and order therein, and is directly answerable to the people who elected him. Nowhere is this more true than in the sensitive area of police administration. True it is that in Millares, 3 this Court, referring to section 23 of the Civil Service Act, made the following statement: In other words, a vacant position (be it new or created by the cessation of an incumbent in office) shall be filed by promotion of the ranking officer or employee, who is competent and qualified to hold the same. And only where, for special reason or reasons of which the affected officer or employee will be notified, this mode of recruitment or selection cannot be observed, that the position may be filled either by transfer, or reemployment, or by getting from the certified list of appropriate eligibles, in that order. But that statement was not necessary, considering that, in the language of the decision

itself, "no evidence was presented that there were ranking employees in the office of the City Mayor affected by the appointment of appellee to the position involved herein." There was therefore no occasion for the application of section 23 to that case. Here, the question is squarely presented, 4 and we now rule that the principle of seniority and the next-in-rank rule embodied in section 23, with its corollary requirement to set forth the "special reason or reasons" in case the officer next in rank is not appointed to the vacant position, applies only to cases of promotion. Hence, where the appointing power chooses to fill the vacancy not by promotion but by transfer, reinstatement, reemployment or certification (not necessarily in that order, as we have already said) he is under no duty whatsoever to explain his action, for the law does not so require him. The reason for this distinction is simple. When a person who is a junior jumps over his senior, the ranking is disturbed and the person next in rank is actually bypassed, and so it is reasonable to require the appointing power to give his "special reason or reasons" for preferring his appointee to the officer next-in-rank. But where the vacancy is filled not by promotion but by transfer, the person next-in-rank is not really bypassed because the person appointed is one who holds a position of equivalent rank as the vacant position. To the appointee, the new position is hardly a higher one. As this Court correctly observed in Millares, in distinguishing promotion from transfer, "whereas the first denotes a scalar ascent of a senior officer or employee to another position, higher either in rank or salary, the second refers to a lateral movement from one position to another of equivalent rank, level or salary." 5 The same reasoning applies when the person chosen to fill the vacancy is merely being reinstated to, or reemployed in, the position which he formerly held. For it is obvious that in this case such person is the senior of the one who at the moment is next in rank. As for the person chosen by certification, it may be said that he has never been rated before and so he can be said neither to

be below nor above the ranking employee in the hierarchy. It may be added that there is no valid or cogent reason to consider it mandatory and ministerial that the filling of vacancies be by promotion, transfer, reinstatement or reemployment, and certification, in that order. There is no legal fiat that those next in rank for promotion are more fit and meritorious for appointment than those moved by transfer from another unit or department, and that those applying for transfer should have "preference" to those seeking reinstatement, and the latter in turn to those who are duly certified eligibles. From the perspective of practical experience, it cannot be doubted that some next-in-rank officers or employees have risen to their seniority slots through mere passivity. And as a matter of policy, those who have previously resigned to avoid investigation of involvement in irregularities in office should certainly not be allowed to invoke "preference" when they subsequently seek reinstatement or reemployment. The only way to determine such fitness would be to hold a competitive examination among all applicants every time a vacancy occurs, which would be completely disruptive of the public service. Our Constitution recognized this and hence provided that appointments be made according to merit and fitness, to be determined only as far as practicable by competitive examination. Hence, our system of qualification through periodic appropriate examinations. Among those qualified and eligible, the appointing authority is granted the discretion and prerogative of choice of the one he deems most fit for appointment. This is not to say that seniority and rank are of no consequence. The Civil Service Act does direct, as we construe it, that as far as practicable the next in rank should be among the first considered for the vacancy, if qualified and eligible, and requires that when the vacancy is filled by promotion, the appointing authority must give the "special reason or reasons" for by passing the nextin-rank. But such official cannot claim any preferential right to appointment to the vacancy over others equally certified to be qualified and

eligible for appointment by transfer, reinstatement or reemployment, or by appropriate certification, just as those applying for transfer cannot claim preference over those seeking reinstatement, etc., nor subject the appointing authority's reasons for his choice to final review and decision by the Civil Service Commissioner. To so hold as the petitioner and the respondent Commissioner contend, would be to invalidly substitute the judgment of the Commissioner of Civil Service for that of the appointing authority, in whom the prerogative of free choice resides. More, in the present case, Subido's action of questioning respondent Claudio's sincerity in not appointing petitioner to the vacant position of chief of police when he had appointed him (Pineda) as deputy chief of police just a few months before, projects the pitfalls of such a theory which would in some cases permit unauthorized interference by the Commissioner of Civil Service with the appointing authority's free exercise of his judgment and prerogative of free choice. Of course, where there is unequivocally demonstrated an arbitrary and improvident exercise of the power of the appointing authority, as will constitute a denial of due process of law, to paraphrase the Court's ruling in Morrero v. Bocar, 6 such as where the qualifications, merit, experience and competence of an official next in rank for promotion are widely disparate over those of the actual appointee, proper remedy through judicial review would be available. For due process recognizes the free exercise by the executive of his prerogatives under the Constitution and the laws but rules out arbitrariness and oppression. 7 We do not of course lose sight of the fact that Section 4 of the Decentralization Act of 1967 does provide that In cases of vacancies in the offices of heads and assistant heads of local offices, the governor or mayor shall fill them by appointment from a list of the five next ranking eligible and qualified persons as certified by the Civil Service Commission. ... Reading this provision in the light of the Civil Service Act, the meaning emerges that in each class

the Commissioner must certify, whenever there are available, five ranking, qualified and eligible persons. Thus, the Commissioner whenever practicable and possible, must certify five qualified and eligible persons for each area, i.e., five such persons for promotion, five such persons for transfer, and so on. And this has been properly implemented by the respondent Commissioner in his last Memorandum Circular No. 21, S. of 1968, dated September 5, 1968, where he announced that his office would certify not more than five eligibles and qualified persons in each list as follows: "(a) promotion list; (b) transfer list; (c) reinstatement/reemployment list; and (d) list of appropriate eligibles," 8 although he erroneously assigned priority thereto in that order, whereas we have above ruled that there is no such order of priority amongst the four said areas. We, therefore, hold that in the event of there occurring a vacancy, the officer next in rank must, as far as practicable and as the appointing authority sees fit in his best judgment and estimation, be promoted, otherwise the vacancy may be filled either by transfer, reinstatement, reemployment or certification not necessarily in that order and that it is only in cases of promotion, where an employee other than the ranking one is appointed, is the appointing power under duty to give "special reason or reasons" for his action to the Civil Service Commissioner, as provided in Section 23, third paragraph, of the Civil Service Act. As there is no question that the respondent Villa has been certified to be qualified and eligible, it is well within the ambit of the power of the respondent Claudio to appoint him chief of police of Pasay City. Consequently, the respondent Claudio owes the petitioner no duty to extend to him a promotional appointment, the performance of which may be compelled by mandamus. ACCORDINGLY, the petition for mandamus is denied, without pronouncement as to costs.

National Service Corp. v. NLRC, 168 SCRA 125 (1988) -- The civil service does not include Government owned or controlledcorporations (GOCC) which are organized as subsidiaries of GOCC under the general corporation law.F: Eugenio Credo was an employee of the National Service Corporation. She claims she was illegally dismissed. NLRC ruled orderingher reinstatement. NASECO argues that NLRC has no jurisdiction to order her reinstatement. NASECO as a government corporation byvirtue of its being a subsidiary of the NIDC, which is wholly owned by the Phil. National Bank which is in turn a GOCC, the terms andconditions of employment of its employees are governed by the Civil Service Law citing National Housing v Juco.ISSUE: W/N employees of NASECO, a GOCC without original charter, are governed by the Civil Service Law.HELD: NO. The holding in NHC v Juco should not be given retroactive effect, that is to cases that arose before its promulgation of Jan 17, 1985. To do otherwise would be oppressive to Credo and other employees similarly situated because under the 1973 Constibut prior to the ruling in NHC v Juco, this court recognized the applicability of the Labor jurisdiction over disputes involving terms andconditions of employment in GOCC's, among them NASECO.In the matter of coverage by the civil service of GOCC, the 1987 Consti starkly differs from the 1973 consti where NHC v Juco wasbased. It provides that the "civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,including government owned or controlled corporation with original charter." Therefore by clear implication, the civil service doesnot include GOCC which are organized as subsidiaries of GOCC under the general corporation law. For more case digests and lawschool notes visit lizajamarga.com. Salvacion Monsanto vs Deputy Exec Sec Fulgencio Factoran Pardon Does not Extinguish Civil Liabilities & It is Prospective FACTS: Monsanto was the Asst Treasurer of Calbayug City. She was charged for the crime of

Estafa through Falsification of Public Documents. She was found guilty and was sentenced to jail. She was however granted pardon by Marcos. She then wrote a letter to the Minister of Finance for her to be reinstated to her former position since it was still vacant. She was also requesting for back pays. The Minister of Finance referred the issue to the Office of the President and Factoran denied Monsantos request averring that Monsanto must first seek appointment and that the pardon does not reinstate her former position. Also, Monsanto avers that by reason of the pardon, she should no longer be compelled to answer for the civil liabilities brought about by her acts. ISSUE: Whether or not Monsanto should be reinstated to her former post. HELD: A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. On the other hand, civil liability arising from crime is governed by the RPC. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioners civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs.THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS),

HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. G.R. No. 85279 July 28, 1989 Facts: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices. Issue: Whether or not employees of the Social Security System (SSS) have the right to strike. Held: The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the

State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Considering that under the 1987 Constitution "the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. Trade Unions of the Philippines and Allied Services (TUPAS) VS. NHA, 173 SCRA 33 F: Respondent NHC is a corporation organized in 1959 under the Uniform Charter of Government Corporations. Its shares of stock have been 100% owned by the Government from its incorporation. Petitioner TUPAS is a legitimate labor organization with a chapter in NHC. TUPAS filed a petition for certification election with DOLE. It was denied. HELD: The civil service now covers only govt owned or controlled corporations w/ original or legislative charters, that is those created by an act of Congress of by special law, and not those

incorporated under and pursuant to a general legislation. xxx There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a govt owned and/ or controlled corp. w/o an original charter. For more case digests and law school notes visit lizajamarga.com. Garcia v. Chairman, Commission on Audit, et al. Facts: Vicente Garcia was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, Garcia was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Administrative Case 975 for the loss of several telegraph poles which were located at the SariayaLucena City and Mauban-Sampaloc, Quezon, telecom lines. Garcia did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against Garcia with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting Garcia of the offense charged. Consequently, Garcia sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, Garcia's request to be reinstated was denied by the Bureau of Telecommunications. Hence, Garcia pleaded to the President of the Philippines for executive clemency. On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to Garcia. Garcia thereafter filed with the Commission on Audit (COA) a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from

the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service. It appears that Garcia was recalled to the service on 12 March 1984 but the records do not show whether Garcia's reinstatement was to the same position of Supervising Lineman. Garcia again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision 362 embodied in its 3rd Indorsement dated 23 July 1985, COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, Garcia appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," holding that the Supreme Court is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution). Hence, Garcia filed the petition for review on certiorari. Issue: Whether Garcia is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency. Held: Yes. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money. Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances, "Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He

shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress." From among the different acts of executive clemency spelled out above, the clemency granted to Garcia in the instant case partakes of the nature of an executive pardon. Time and again the Supreme Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, the Court has firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. Herein, Garcia was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of Garcia by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that Garcia did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended Garcia for

his concern and dedication as a public servant. Verily, Garcia's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on Garcia in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating Garcia from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that Garcia need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency. Garcia's automatic reinstatement to the government service entitles him to back wages. This is meant to afford relief to Garcia who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to Garcia. Moreover, the right to back wages is afforded to those with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. There is no doubt that Garcia's case falls within the situations aforementioned to entitle him to back wages. Further, it is worthy to note that the dismissal of Garcia was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." In pardoning Garcia and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of Garcia and relieved him from

administrative liability. The separation of the Garcia from the service being null and void, he is thus entitled to back wages. After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, Garcia should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. CARMEN FESTEJO vs. ISAIAS FERNANDO, FACTS: The defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and without the consent and knowledge of the plaintiff, and against her express objection unlawfully took possession of portions of the three parcels of land and caused an irrigation canal to be constructed on the portion of the three parcels of land on to the damage and prejudice of the plaintiff. ISSUE: Whether or not this is a suit against the state? RULING:No, the evidence and conceded facts in finding that in the trespass on plaintiff's land defendant committed acts outside the scope of his authority. When he went outside the boundaries of the right of way upon plaintiff's land and damaged it or destroyed its former condition and usefulness, he must be held to have designedly departed from the duties imposed on him by law. Ordinarily the officer or employee committing the tort is personally liable therefore, and may be sued as any other citizen and held answerable for whatever injury or damage results from his tortuous act. It is a general rule that an officer-executive, administrative quasi-judicial, ministerial, or otherwise who acts outside the scope of his jurisdiction and without authorization of law may thereby render himself amenable to personal liability in a civil suit. If he exceed the power conferred on him by law, he cannot shelter himself

by the plea that he is a public agent acting under the color of his office, and not personally. In the eye of the law, his acts then are wholly without authority. ART. 32. Any public officer or emplyee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (6) The right against deprivation of property without due process of law; Separate Opinions CONCEPCION, J., dissenting: To my mind, the allegations of the complaint lead to no other conclusion than that appellee Isaias Fernando is a party in this case, not in his personal capacity, but as an officer of the Government. According to said pleading the defendant is "Isaias Fernando, Director, Bureau of Public Works." Moreover, in paragraphs 4 and 5 of the complaint, it is alleged: 4. That the defendant as Director of the Bureau of Public Works, is in charge of irrigation projects and systems, and the official responsible for the construction of irrigation system in the Philippines; We take judicial notice of the fact that the irrigation projects and system reffered to in the complaint of which the defendant, Isaias Fernando, according to the same pleading, is "in charge" and for which he is "responsible" as Director of the Bureau of Public Works are established and operated with public funds, which pursuant to the Constitution, must be appropriated by law. Irrespective of the manner in which the construction may have been undertaken by the Bureau of Public Works, the system or canal is, therefore, a property of the Government. American Tobacco Company et al vs Director of Patents Due Process

ATC et al filed before the Philippine Patent Office concerning the use of trade mark and trade name. ATC et al challenged the validity of Rule 168 of the Revised Rules of Practice before the Philippine Patent Office in Trademark Cases as amended, authorizing the Director of Patents to designate any ranking official of said office to hear inter partes proceedings. Said Rule likewise provides that all judgments determining the merits of the case shall be personally and directly prepared by the Director and signed by him. These proceedings refer to the hearing of opposition to the registration of a mark or trade name, interference proceeding instituted for the purpose of determining the question of priority of adoption and use of a trade-mark, trade name or servicemark, and cancellation of registration of a trademark or trade name pending at the Patent Office. Petitioners filed their objections to the authority of the hearing officers to hear their cases, alleging that the amendment of the Rule is illegal and void because under the law the Director must personally hear and decide inter partes case. Said objections were overruled by the Director of Patents, hence, the present petition for mandamus, to compel the Director of Patents to personally hear the cases of petitioners, in lieu of the hearing officers. ISSUE: Whether or not the hearing done by hearing officers are within due process. HELD: The SC ruled that the power to decide resides solely in the administrative agency vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of which the decision of the administrative agency will be made. The rule that requires an administrative officer to exercise his own judgment and discretion does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates to investigate and report to him the facts, on the basis of which the officer makes his decisions. It is sufficient that the judgment and discretion finally exercised are those of the officer authorized by law. Neither does due process of law nor the requirements of fair hearing require that the actual taking of testimony be before the same officer who will make the decision in the case. As

long as a party is not deprived of his right to present his own case and submit evidence in support thereof, and the decision is supported by the evidence in the record, there is no question that the requirements of due process and fair trial are fully met. In short, there is no abnegation of responsibility on the part of the officer concerned as the actual decision remains with and is made by said officer. It is, however, required that to give the substance of a hearing, which is for the purpose of making determinations upon evidence the officer who makes the determinations must consider and appraise the evidence which justifies them. American Tobacco Co. vs. Director of Patents

Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension. The undisputed facts are as follows: On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the militarybacked EDSA revolt, petitioner was reappointed to the same position. On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910, [2] as amended, and received his retirement gratuity under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension. On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of the MMA. His appointment was approved by the Civil Service Commission (CSC). On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA). Section 11 thereof reads: Section 11. Transitory Provisions. To prevent disruption in the delivery of basic urban services pending the full implementation of the MMDAs organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and of being transferred to another office or position. ... The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced. The national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced

employees at the rate of one and one-fourth (1) months salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder. On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. No. 7924. On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his voluntary option to be separated from the service his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to separation benefits equivalent to one and onefourth (1) monthly salary for every year of service as provided under Section 11 of the MMDA Law. In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR. On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioners separation pay must be in accordance with Civil Service Resolution No. 92063, pertinent portions of which read: [T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when officers

[G.R. No. 139792. November 22, 2000] ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents. In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals [1] in CA-G.R. SP No. 48301, which held that petitioners separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila

and employees who were previously granted said benefits are rehired or reemployed in another government Agency or Office. Thus, there is no need for separated employees to refund the separation/retirement benefits they received when subsequently reemployed in another government agency or office. This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the employee concerned. Moreover, in this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay received. His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC. On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioners appeal. Citing Chaves v. Mathay, [3] it held that petitioner cannot be paid retirement benefits twice one under R.A. No. 910, as amended, and another under R.A. No. 7924 for the same services he rendered as MeTC Judge. He can only exercise one of two options in the computation of his separation pay under R.A. 7924. These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2 months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA

Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service. On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioners motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions. On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case. It held that the CSC was correct in dismissing petitioners appeal from the opinion of Director Acebedo. It ratiocinated as follows: There is no specific rule of law which applies to petitioners case. Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth (1) months salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic]. Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge. Equity dictates that he should no longer be allowed to receive further gratuity for said years of service in the guise of separation pay. Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service. The State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to an employee who has given up the best years of his life to the service of his country (Govt. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188). Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of petitioners

government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority. The Court, in limiting the computation of petitioners separation pay to the number of years of his service at the MMA, merely is implementing the ruling in Chavez, Sr. vs. Mathay (37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing to its commonsense consideration. Said ruling reads: The common-sense consideration stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his years of service under his first retirement in computing his gratuity under his second retirement, it is but just that the retirement gratuity received by him under his first retirement should also be charged to his account, manifestly govern the case at bar. It is but in accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or pension such as petitioners, would run roughshod over the well-settled rule that in the absence of an express legal exception, pension and gratuity laws should be so construed as to preclude any person from receiving double pension. (p. 780, underscoring supplied) The case at bench is not, strictly speaking, about double pension. It is, however, about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same years of service. We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioners separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA.

In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of one and one-fourth (1) months of salary for every year of service cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA. The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is settled that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices. [4] However, the power to abolish is subject to the condition that it be exercised in good faith. [5] The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected. Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he were convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads: Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder. Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension. The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides: Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached. [6] Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA. However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court against double compensation for exactly the same services. [7] More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads: No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law . Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA. WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED. Costs against petitioner.

SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Laurel V vs. CSC, 203 SCRA 195 FACTS: Petitioner, the duly elected Governor of the Province of Batangas, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official. Upon the vacancy of the position of Provincial Administrator of Batangas, petitioner designated his brother as Acting Provincial Administrator. Then, he issued Benjamin Laurel a promotional appointment as Civil Security Officer which is a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. ISSUE: Does nepotism apply to designation? RULING: Yes. The court ruled that petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity and the case does not fall within any of the exemptions provided therein. The exemption in the said section covering confidential positions cannot be considered since the said position is not primarily confidential for it belongs to the career service. Petitioners contention that the designation of his brother is not covered by the prohibition cannot be accepted for by legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule

on nepotism or a last-ditch maneuver to cushion the impact of its violation. Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading the section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. CIVIL SERVICE COMMISSION V DACOYCOY PARDO; April 29, 1999 FACTS - Respondent Pedro O. Dacoycoy was charged with habitual drunkenness, misconduct and nepotism before the Civil Service Commission. Accordingly, the Commission conducted a formal investigation, and thereafter, promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the Commission found respondent guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service. - The Commission denied respondent's motion for reconsideration. - Respondent filed with the Court of Appeals a special civil action for certiorari with preliminary injunction to set aside the Civil Service Commissions resolutions. The Court of Appeals then reversed and set aside the decision of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court of Appeals further held that it is "the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act." It likewise declared null and void the Civil

Service Commissions resolution dismissing him from the service. - The Commission then filed an appeal via ceriorari before the Supreme Court. ISSUES 1. WON respondent is guilty of nepotism 2. WON the Commission is the "party adversely affected by the decision" of the Court of Appeals who may file an appeal therefrom HELD1. YES- Under the definition of nepotism (Section 59 of Executive Order 292), one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority; b) recommending authority; c) chief of the bureau or office, and d) person exercising immediate supervision over the appointee. - the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. - Respondent is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. He did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. It was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and

emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclags immediate supervision. Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school. Mr. Daclag also appointed Ped Dacoycoy as casual utility worker. However, it was respondent Dacoycoy who certified that funds are available for the proposed appointment of Rito Dacoycoy and even rated his performance as very satisfactory. On the other hand, his son Ped stated in his position description form that his father was his next higher supervisor. The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondents two sons and placed them under respondents immediate supervision serving as driver and utility worker of the school. Both positions are career positions. - To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism. - Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. The basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one. The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive. If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the outstanding civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order

to abate any occasion for graft or circumvention of the law." 2. YES- There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. - Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" and not included are "cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an amount not exceeding thirty days salary" or "when the respondent is exonerated of the charges, there is no occasion for appeal." In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges." - The Court of Appeals reliance on Debulgado vs. Civil Service Commission, to support its ruling is

misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there." Decision Petition granted. The Court of Appeals' decision is reversed and the resolutions of the Civil Service Commission are revived and affirmed. SEPARATE OPINION MELO [dissent and concur] - Although I completely agree with the result and likewise with the wisdom in which the issues relating to nepotism are threshed out in the majority opinion, I do not agree with the majority opinion stating that the Civil Service Commission may appeal a judgment of exoneration in an administrative case involving nepotism. And Mr. Justice Puno would go further by allowing even a private complainant and by implication, a complainant office, to appeal a decision exonerating or absolving a civil service employee of charges against, or even imposing a penalty upon him. This totally contravenes our well-settled ruling in several cases. - The Court of Appeals exonerated respondent Dacoycoy of the charge of nepotism. From such adverse decision, the Civil Service Commission, through its Office for Legal Affairs, interposed the present appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court.

Under existing laws and jurisprudence this is not allowed, so this Court ruled in the above-cited cases. If this point is not stressed by the Court, the present decision might be misconstrued as a watering down of the settled doctrine. - It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. - A cursory reading of P.D. 807, otherwise known as The Philippine Civil Service Law shows that said law does not contemplate a review of decisions exonerating officers or employees from administrative charges. - Section 37 paragraph (a) thereof, provides: - "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more that thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office." - Said provision must be read together with Section 39 paragraph (a) of P.D. 805 (should be 807) which contemplates: "Appeals, where allowable, shall be made by the party adversely affected by the decision." - The phrase "party adversely affected by the decision" refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. The remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges against him. But when the respondent is exonerated of said charges, as in the case, there is no occasion for appeal. - Based on the above provision of law, appeal to the Civil Service Commission in an administrative case is extended to the party adversely affected by the decision, that is, the person or the respondent

employee who has been meted out the penalty of suspension for more than thirty days; or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the decision. - It is my submission that the prerogative to now determine whether this practice of disallowing appeals in cases of exoneration should still continue or not, exclusively belongs to Legislature. The Court cannot and should not arrogate this policy-making power of Congress unto itself, not even in the guise of the exercise of its expanded power of judicial review under the 1987 Constitution. Only Congress has authority to remedy inadequacies in the wisdom of a law, should it find any, especially when the definite intention of the existing law was to disallow the State to appeal from judgments of exoneration. Any attempt by the Court to transgress this most basic principle in the separation of powers between these two branches of government would to my mind, result in the abhorrent act of judicial legislation. - Effective June 1, 1995, Revised Administrative Circular No. 1-95 ordained that, appeals from awards, judgments or final orders or resolutions of or authorized by any quasi-judicial agency (which includes the Civil Service Commission) in the exercise of its quasi-judicial functions shall be taken by filing a verified petition for review with the Court of Appeals. Although in general, appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may be filed via a verified petition for review on certiorari with this Court (where pure questions of law, distinctly set forth therein, may be duly raised), an appeal involving a judgment or final order of the Court of Appeals exonerating a government employee in an administrative case, in particular, falls within the ambit of the provisions of Section 39, paragraph

(a) of Presidential Decree No. 807. It is elementary that a special law such as Presidential Decree No. 807 takes precedence over general rules of procedure such as Rule 45 of the Rules of Court. No appeal may, therefore, be taken under Rule 45. - Moreover, it is recognized in our jurisdiction that an administrative case which could result in the revocation of license, or similar sanctions like dismissal from office, constitutes a proceeding which partakes of a criminal nature. Being such, provisions of law pertaining thereto must perforce be construed strictly against the State, just as penal laws are strictly construed strictly against the State. Any ambiguity, should there be any, must be resolved in favor of the respondent in the administrative case. The term "party adversely affected" should not be construed as to include the State in administrative charges involving nepotism. - To allow appeals from decisions, be they exonerative or otherwise, against civil service employees would, to my mind, be stocking the stakes too much against our civil servants. It should be noted in this regard that the greater bulk of our government workers are ordinary people, working under supervision and, more often than not, exposed to political pressure and the influence of peddlers of power. Their simple status notwithstanding, they are not easily cowed and intimidated. Many, though, are threatened with complaints, transfer of station, or demotion, if they refuse to do the bidding of some unscrupulous superiors or politicians. I can, therefore, understand why the law and our jurisprudence disallow appeal by the complainant from decisions in administrative cases, be they exonerative or otherwise. Verily, an employee may be hounded into spending up to his last resources and losing his self-respect and honor by successive appeals. - What will happen, if for instance, the respondent government employee is initially exonerated or given a light penalty, and the complainant may appeal, insisting that the employee is guilty or that he deserves a heavier penalty? And, if the Civil Service Commission thereafter metes out a penalty not to the liking of the complainant, the matter may still be elevated to the Court of Appeals or

even this Court? Where else will all this end, if not in the physical and financial exhaustion of the respondent civil servant? Again, I wish to stress that I speak here of the ordinary employees. The big shots in government who commit wrongs may somehow hereby benefit, but then we shall be content in concluding that we decided in favor of the many, that the good of the majority prevailed. - A judgment of exoneration by the Court of Appeals, as in the case of a judgment of exoneration by the Civil Service Commission or the now defunct Merit System Protection Board, may indeed prove to be truly adverse to the government agency concerned and eventually to the State as a whole. This is especially so when there had been lapses in the interpretation and/or application of the law as in the present case. This notwithstanding, the right to appeal, which is merely statutory may not be invoked, much less exercised, when the law does not provide any. Again, until and unless Congress exercises its prerogative to amend such law, this Court is bound by it and has no other recourse except to apply the same. Fortunately for petitioner but not so for respondent, the latter failed to invoke the foregoing general rule. In a similar case, we held that the party favored by such law who fails to interpose any objection to an appeal may be deemed to have waived this right. - Premises considered and with the above observations, I vote to grant the petition as stated in the dispositive thereof. PUNO [concur] - Appeal to the Civil Service Commission in an administrative case is extended to the party adversely affected by the decision, that is, the person of the respondent employee who has been meted out the penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an amount not

exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the decision. - It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. - By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal. - The phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. - With humility, I make the submission that is time to strike down the doctrine disallowing appeals to the Civil Service Commission when the decision exonerates a government official or employee from an administrative charge. The doctrine is principally based on a constricted interpretation of Section 39 of P.D. No. 807 (Civil Service Law) which states: Sec. 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. x x x - According to Paredes, Mendez and Magpale, the phrase party adversely affected by the decision refers alone to the respondent government official or employee against whom the administrative case is filed. They excluded from its compass the party complainant whose charge is dismissed. Hence, when the respondent government official or employee is exonerated, the decision is deemed final as the party complainant is precluded from appealing.

- I find it difficult to agree with the above interpretation which is not only too narrow but is subversive of the essence of our civil service law. In the case at bar, private respondent is the Vocational Administrator of the Balicuatro College of Arts and Trades. His charged with the offense of nepotism for the appointment of two sons as driver and utility worker under his immediate control and supervision. It is beyond argument that nepotism is prohibited by our civil service law for it breeds inefficiency, if not corruption, in government service. The critical question, therefore, is: who has the standing to prevent the violation of this law and protect public interest? I submit that a taxpayer has the standing to bring suit to void nepotic acts for he has an interest that appointments in the civil service shall be made only according to merit and fitness x x x. A taxpayer has a right to good government and good government cannot result from appointments determined by bloodlines. The Civil Service Law itself recognizes that there are offenses which can be the subject of a complaint by any private citizen. Thus, Section 37 of the law allows any private citizen to file a complaint against a government official or employee directly with the Commission. Section 38 also recognizes that administrative proceedings may be commenced against a subordinate officer or employee by the head of the department or office of equivalent rank, or head of local government or chiefs of agencies, or regional directors or upon sworn written complaint of any other persons. The general rule is that one who has a right to be heard has standing to seek review of any ruling adverse to him. Hence, if a private citizen has the right to file an administrative complaint, he must also have the right to appeal a dismissal of his complaint, unless the law clearly precludes his right of appeal for indubitable policy reasons. A contrary rule will diminish the value of the right to complain. The cases of Paredes, Mendez and Magpale do not give any policy reasons why the dismissal of a charge of nepotism cannot be appealed. They merely resort to doubtful inferences in justifying the bar to appeals. Such an approach goes against the rule that preclusions of judicial review of administrative action . . . is not lightly to be inferred.

- In truth, the doctrine barring appeal is not categorically sanctioned by the Civil Service Law. For what the law declares as "final" are decisions of heads of agencies involving suspension for not more than 30 days or fine in an amount not exceeding 30 days salary. But there is a clear policy reasons for declaring these decisions final. These decisions involve minor offenses. They are numerous for they are the usual offenses committed by government officials and employees. To allow their multiple level appeal will doubtless overburden the quasi-judicial machinery of our administrative system and defeat the expectation of fast and efficient action from these administrative agencies. Nepotism, however, is not a petty offense. Its deleterious effect on government cannot be over-emphasized. And it is a stubborn evil. The objective should be to eliminate nepotic acts, hence, erroneous decisions allowing nepotism cannot be given immunity from review, especially judicial review. It is thus non sequitur to contend that since some decisions exonerating public officials from minor offenses can not be appealed, ergo, even a decision acquitting a government official from a major offense like nepotism cannot also be appealed. - Similarly, the doctrine barring appeal cannot be justified by the provision limiting the jurisdiction of the Civil Service Commission to review decisions involving: (1) suspension for more than thirty (30) days; (2) fine in an amount exceeding thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or dismissal from office. Again, there is nothing in this provision indicating legislative intent to bar appeal from decisions exonerating a government official or employee from nepotism. Statutory preclusion of appeals is the exception rather than the rule, for as stressed by Mr. Justice Douglas, "tolerance of judicial review has been more and more the rule against the claim of administrative finality." Yet the cases of Paredes, Mendez and Magpale precisely barred all appeals despite lack of an explicit, positive provision in the Civil Service Law. - Moreover, the case at bar involves the right of a party adversely affected to resort to judicial review. This case does not involve the appellate

jurisdiction of the Civil Service Commission, i.e., whether or not it has the power to review a decision exonerating a government official from a charge of nepotism. The facts show that it was the Civil Service Commission that at the first instance found Dacoycoy guilty of nepotism. It was Dacoycoy who appealed the decision of the Civil Service Commission to our regular court, more exactly, the Court of Appeals pursuant to the Rules of Court. As Dacoycoy only impleaded Suan as respondent, the Court of Appeals ordered that the Civil Service Commission should also be impleaded as party respondent. The Court of Appeals then reversed the Commission as it cleared Dacoycoy from the charge of nepotism. The question therefore is whether or not this Court is precluded from reviewing the decision of the Court of Appeals on a petition for certiorari under Rule 45. Again, I submit that this Court has jurisdiction to entertain this review. Indeed, under the Constitution, the jurisdiction of this Court has even been expanded "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government." The question is not our lack of jurisdiction but the prudential exercise of power. In certiorari cases alleging grave abuse of discretion, our given task is to determine how much is too much of an abuse. - To my mind, it is also of de minimis importance that the petition of thus Court was filed by the Civil Service Commission. The records will reveal that Suan, the original complainant, wrote to the Civil Service Commission urging it to make the appeal ostensibly for lack of means. But even without Suan, I submit that the nature of the issue in the case at bar and its impact on the effectiveness of government give the Civil Service Commission the standing to pursue this appeal. The issue in the case at bar is basically a legal one, i.e., the proper interpretation of who can be convicted of nepotism, and undoubtedly, this Court has the authoritative say on how to interpret laws. Administrative agencies have always conceded that the final interpretation of laws belongs to regular courts. And the issue has broad implications on the merit and fitness philosophy of our civil service system. Under Sec. 3, Article IX (B) of our

Constitution, it is the Civil Service Commission that has oversight of our civil service system. It is thus the party better equipped to argue the diverse dimensions of the issue. It is also the most affected, for it has the duty not to stand still when nepotic practices threaten the principle of meritrocacy in our government. It seems to me self evident that this type of injury to public interest can best be vindicated by the Commission and not by a private person. - There are other disturbing implication if we do not junk the doctrine of non-reviewability of decisions exonerating government officials from charges of nepotism. For one, the doctrine unduly favors officials charged with nepotism, for while we allow further review of their conviction, we disallow review of their exoneration, regardless of the errors. This distorted rule contravenes our distaste against nepotism, a practice whose continuance can fatally erode faith in government. For another, perpetuating a nepotic act, an evil that should be extirpated wherever found, can never be the intent of our legislators who crafted our Civil Service Law. For still another, completely cutting off access to judicial review goes against the spirit of the 1987 Constitution expanding the jurisdiction of this Court. Putting up borders of nonreviewability weakens the judiciarys checking power. Indeed, shielding abusive administrative actions and decisions from judicial oversight will ultimately erode the rule of law. As Justice Brandeis opined, "supremacy of law demands that there shall be an opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly." - I join the majority opinion. ROMERO [dissent] - Does the Civil Service Commission have the legal personality to appeal a decision of the Court of Appeals exonerating an employee charged in an administrative case, which decision, in effect, reversed and nullified the Commissions finding that the respondent employee is guilty as charged?

- After an exhaustive and careful scrutiny of P.D. No. 807 (otherwise known as the Civil Service Law), Executive Order No. 292 (otherwise known as the Revised Administrative Code of 1987) as well as the Omnibus Rules Implementing Book V of Executive Order No. 292, I find no legal basis to support the contention of the majority that the Commission has that legal personality. - The Civil Service Commission is the central personnel agency of the government. Corollarily, it is equipped with the power and function to hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and the agencies attached to it. This is in consonance with its authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees except as otherwise provided by the Constitution or by law. It is thus clear that the Civil Service Commission has been constituted as a disciplining authority. - Section 34, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides the answer as to who may appear before the Commission, thus: "Administrative proceedings may be commenced against a subordinate officer or employee by the following officials and employees: (a) Secretary of department; (b) Head of Office of Equivalent rank; (c) Head of Local Government Unit; (d) Chief of Agency; (e) Regional Director; or (f) Upon Sworn, Written complaint of Any other Person."

- Consequently, the complaint can either be the Secretary of department, head of office of equivalent rank, head of a local government unit, chief of agency, regional director or any other person or party. The phrase any other party has been understood to be a complainant other than the head of department or office of equivalent rank or head of local government or chiefs of agencies or regional directors. - The respondent, on the other hand, is any subordinate officer or employee. Nowhere can be found, expressly or impliedly, in Section 34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No. 292, the Commission as one of the parties, either as complainant or respondent in an administrative case. Logically and by necessary implication, it cannot considered either a complaint or a respondent. Expressio unius est exclusio alterius. The express mention of one person, thing or consequence implies the exclusion of all others. Based on the foregoing, there is no other conclusion but that the Civil Service Commission is not a party to an administrative proceeding brought before it. As provided by Supreme Court Administrative Circular 1-95, decisions, orders or rulings of the Commission may be brought to the Supreme Court, now to the Court of Appeals, on certiorari by the aggrieved party. By inference, an aggrieved party is either the one who initiated the complaint before the Commission or the respondent, the person subject of the complaint. In fact, the question as to who is an aggrieved party has long been settled in a litany of cases. An aggrieved party in an administrative case is the government employee against whom an administrative complaint is filed. The Civil Service Commission is definitely not a government employee. Neither is it an agency against whom an administrative charge is filed. While it may be argued that, in a sense, the government is an "aggrieved party" in administrative proceedings before the Commission, it nevertheless is not the "aggrieved party" contemplated under P.D. No. 807 or the Civil Service Law. - Having established that the Civil Service Commission is not a party, much less an aggrieved party, then indubitably, it has no legal personality

to elevate the case to the appellate authority. The Commission, therefore, has no legal standing to file the instant petition. - While admittedly, the Civil Service Commission is considered a nominal party when its decision is brought before the Court of Appeals, such is only a procedural formality. As with appellate processes, a nominal party is not the aggrieved party. Its inclusion as a party is based primarily on the fact that the decision, order or ruling it issued is being contested or assailed and secondarily, for purposes of enforcement. By analogy, the Commission in the performance of its quasi-judicial functions is just like a judge who should "detach himself from cases where his decision is appealed to a higher court for review. The raison detre for such doctrine is that a judge is not an active combatant in such proceeding and must leave the opposing parties to contend their individual positions and for the appellate court to decide the issues without his active participation. By filing this case, petitioner in a way ceased to be judicial and has become adversarial instead." - I dissent from the ponencias conclusion that the Commission may appeal a judgement of exoneration in an administrative case involving nepotism in light of the foregoing disquisition. CASE DIGEST ON TABUENA v. SANDIGANBAYAN [121 SCRA 389 (1983)] Facts: ? In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986, President Marcos allegedly commanded petitioner Tabuena, in his capacity as General Manager of the Manila International Airport Authority (MIAA), to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum P55M in cash as partial payment of MIAAs account with said company mentioned in a Memorandum of (Trade and Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985 Tabuena withdrew the sum of 55M on three separate occasions (25M, 25M, 5M

with Adolfo Peralta) and delivered them to Gimenez, Marcoss private secretary. ? It is without dispute that Tabuena did not follow the normal procedures in withdrawal and delivery of the money (no disbursement slips and paid in cold cash). ? Tabuena was only issued a receipt after the third delivery and it did not mention anything about the purpose of the receipt or the money being used to pay PNCC, but merely acknowledged that Gimenez had received the sum of 55M from Tabuena on three occasions. Furthermore, there was no receipt from the PNCC recognizing payment of debt. ? Prosecution: there were no standing obligations in favor of the PNCC at the time of disbursement of 55M. PNCC said themselves that they didnt receive the P55M. ? Tabuena claimed that he was only complying with the direct order of Marcos (plus the Marcos memorandum which contained same order) to immediately forward to the office of the President, 55M in cash, as partial payment of MIAAs obligations to PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short, that Tabuena acted in good faith. ? Sandiganbayan rejected Tabuenas claim of good faith and found him guilty of malversation by negligence, hence this case. Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation (or if because of the justifying circumstance of following the orders of his superior, in good faith, he would not be criminally liable, but merely civilly liable)? Held: Tabuena is merely civilly liable. The very fact that he was merely following the orders of his superior is a justifying circumstance. Ratio: 1. On the point raised by Tabuena that he cannot be charged with intentional malversation

and be convicted by malversation by negligence, the Court ruled that the dolo and culpa of the offense is only a modality in the perpetration of the felony. The same felony is still there and conviction thereof is proper. 2. On the defense of good faith: it is a valid defense against malversation because it would negate criminal intent. To constitute a crime, the act must, except in certain crimesbe accompanied by criminal intent or such negligence or indifference to duty or to consequences as is equivalent to criminal intent The maxim actus non facit reum, nisi mens sit rea a crime is not commited if the mind of the person performing the act complained of is innocent (malversation cases: US v. Catolico, US v. Elvina). 3. The Court, based on the evidence presented, found that Tabuena had no other choice but to actually follow the order stated in the Marcos Memorandum, because, as president of the Philippines, indubitably the head of governmental agencies such as the MIAA and PNCC, Marcos is undeniably the superior of Tabuena. 4. Tabuena entitled to the justifying circumstance of any person who acts in obedience to an order issued by a superior for some lawful purpose because he is only acting in good faith, faithfully and efficiently carrying out orders from the highest official in the land. Moreover, there was nothing in the Marcos Memorandum that may invite suspicion there was no question about the lawfulness of the order contained in such a memorandum. Tabuena had reason to believe that the 55M was indeed part of a due and demandable debt, a portion of a bigger liability to PNCC (existence of such debts determined from testimonies). So even if the order was illegal and Tabuena was not aware of the illegality, he would not be liable because there would only be a mistake of fact committed in good faith. 5. Tabuena followed the memorandum to the letter, paying immediately the PNCC, through this office (office of the president) the sum of 55M. Tabuena had reasonable ground to believe that the President was entitled to receive the money

because as Chief Executive, Marcos exercised supervision and control over governmental agencies (good faith in the payment of public funds relieves a public officer from the crime of malversation). 6. While even Tabuena admitted that procedures were ignored and that the disbursement was unusual, he is found to be excused from such because the Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other hand, while this allows for the negation of criminal intent, as Tabuena acted in good faith, he would still be civilly liable (but hes not criminally liable anymore, escaping the harsher penalties) (see page 362). 7. There is no showing that Tabuena had anything to do with the creation of the Marcos Memorandum that even if the real purpose behind the memorandum was to get 55M from public funds, it is clear that he did and would not profit from such and that he did not have anything to do with the creation of the memorandum. 8. Tabuena case is a case concerning obedience in good faith of a duly executed order. The order/memorandum came from the Office of the President and bears the signature of the president himself, in effect allowing for the presumption that such order was regularly issued and patently legal. Furthermore, the wording of the memorandum expressed a certain urgency to its executionObedienta est legis essential (act swiftly without question). 9. Main Ratio: Furthermore, the Court itself raises the contention that the case involves a violation of the accuseds right to due process in the sense that it was obvious that the Sandiganbayan was overzealous in its attempt to convict parties involved as seen in the volume of questions asked, and the manner the same were posed (cross examinations characteristic of confrontation, probing and insinuation). To quote Justice Cruz, Respect for the Constitution is more important that securing a conviction based on a violation of the rights of the accused.

Sandiganbayan was obviously biased, denying Tabuena and parties involves the requirement of the cold neutrality of an impartial judge. As a consequence of such violation of due process, the order of Sandiganbayan was found void. Note that this defense was not raised by Tabuena. Voting: ? Four concurred (Narvasa, Vitug, Kapunan, Mendoza) ? Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban) ? Justice Hermosisima took no part as he was a signatory to the SB decision ? Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the majority opinion but they reserve their right to change their vote should a similar case with the same facts arise.) Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the proposition that any public official who blindly follows orders of their superior. Thus, this case is not authoritative on Art. 11(6). Decision: Tabuena and Peralta acquitted. Davide, dissenting: Davide disagrees with majority that all the requisites of the sixth justifying circumstance in art 11 of the RPC were present The sixth circumstance of the said article implies 3 things: a) that the order was issued by a superior; b) such order must be for some lawful purpose and; c) means used by subordinate to carry out said order must be lawful. According to Davide, facts show that the debt was only 34.5M so order of Marcos had excess of 20.5M said order then had no factual or legal basis and unlawful. Romero, dissenting: He also believes that not all requisites were present to warrant a justifying circumstance as Tabuena, by his own admission, did not follow standard operating procedures (no vouchers, no approval by Commission on Audit, non-issuance of a receipt in 1st 2 deliveries, non-

issuance of receipt by PNCC, delivery to office of Gimenez [not office in Malacanang], a stranger to contract between PNCC and MIAA). The entire process, done with haste and with a total disregard of appropriate auditing requirements was not based on normal procedure. Tabuenas rank does not excuse him from ignoring such. Puno, dissenting: He concentrates on the case involving a mistake in fact, citing the Ah CHong case among others, and discussing article 3 in some detail -saying that mistake in fact should not excuse the accused from incurring liability. It was also clear from the facts that it took one month for Tabuena to comply with order (starting from the time Marcos called him up by phone to which the memorandum containing the same orders followed a week later), which is more than enough time to comply with procedure. He also adds that if there was not enough time, Tabuena should have asked for more time or at least communicated such problems to the president. Moreover, to acquit the petitioners imply that people believe that the president is always right, that he or she can do no wrong that the president is above and beyond the law. Panganiban, dissenting: He is of the same view as Romero, Davide and Puno but also raises some points: the defense of obedience to a superiors order is already obsolete, as determined by the Tribunal in Nuremberg, in its judgment against Nazi war criminals who put up the defense that they were merely following orders. The tribunal said that the true test did not lie with the existence of an order but whether a moral choice was in fact, possible. To allow this defense to hold in the Tabuena case sets a dangerous precedent in the country because it would deprive the Courts the moral authority to convict any subordinate because he or she was merely following the orders of the his or her superior (allowing the same doctrine to be invoked in similar criminal cases before the SC and even in the inferior courts who have no choice but to follow the doctrines set by the SC).