ADMIN LAW CASES SET 10
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.
JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs. HON. FRANKLIN
M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases
Conversion and Development Act of 1992," under which respondent Mayor Richard J.
Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic
Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and other operational expenses
attached to the office . . . ." 2 Paragraph (d) reads
(d) Chairman administrator The President shall appoint a professional
manager as administrator of the Subic Authority with a compensation to be
determined by the Board subject to the approval of the Secretary of Budget, who
shall be the ex oficio chairman of the Board and who shall serve as the chief
executive officer of the Subic Authority: Provided, however, That for the first year
of its operations from the effectivity of this Act, the mayor of the City of Olongapo
shall be appointed as the chairman and chief executive officer of the Subic
Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic,
Zambales, and officers and members of the Filipino Civilian Employees Association in
U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-
above quoted in italics infringes on the following constitutional and statutory provisions:
(a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official
shall be eligible for appointment or designation in any capacity to any public officer or
position during his tenure," 3 because the City Mayor of Olongapo City is an elective official
and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . . appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized
by law to appoint", 4 since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the
Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: .
. . (g) Appointment of new employees, creation of new position, promotion, or
giving salary increases. During the period of forty-five days before a regular
election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who
appoints or hires any new employee, whether provisional, temporary or casual,
or creates and fills any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the
office or agency concerned, and that the position shall not be filled in a manner
that may influence the election. As an exception to the foregoing provisions, a
new employee may be appointed in case of urgent need: Provided, however,
That notice of the appointment shall be given to the Commission within three
days from the date of the appointment. Any appointment or hiring in violation of
this provision shall be null and void. (2) Any government official who promotes, or
gives any increase of salary or remuneration or privilege to any government
official or employee, including those in government-owned or controlled
corporations . . . .
for the reason that the appointment of respondent Gordon to the subject posts made by
respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period
prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which
states, "Provided, however, That for the first year of its operations from the effectivity of
this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," violates the constitutional proscription against
appointment or designation of elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
The section expresses the policy against the concentration of several public positions in
one person, so that a public officer or employee may serve full-time with dedication and
thus be efficient in the delivery of public services. It is an affirmation that a public office is
a full-time job. Hence, a public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of
Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and
1

responsibilities without the distraction of other governmental duties 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 . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent
a situation where a local elective official will work for his appointment in an executive
position in government, and thus neglect his constituents . . . ." 7
In the case before us, the subject proviso directs the President to appoint an elective
official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the
Board and Chief Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution.
Here, the fact that the expertise of an elective official may be most beneficial to the
higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment
of a local elective official to another post if so allowed by law or by the primary functions
of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of
the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over
the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not
the issue here nor is that section sought to be declared unconstitutional, we need not rule on
its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its
validity.
In any case, the view that an elective official may be appointed to another post if allowed
by law or by the primary functions of his office, ignores the clear-cut difference in the
wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple
offices by an appointive official when allowed by law or by the primary functions of his
position, the first paragraph appears to be more stringent by not providing any exception
to the rule against appointment or designation of an elective official to the government
post, except as are particularly recognized in the Constitution itself, e.g., the President as
head of the economic and planning agency; 9 the Vice-President, who may be appointed
Member of the Cabinet; 10 and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not
accidental when drawn, and not without reason. It was purposely sought by the drafters
of the Constitution as shown in their deliberation, thus
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict with respect to elective officials,
ADMIN LAW CASES SET 10
because in the case of appointive officials, there may be a law that will allow
them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of
appointive officials, there will be certain situations where the law should allow
them to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive officials in the second
paragraph cannot be extended to elective officials who are governed by the first
paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of
Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the holding of any other office or
employment by the President, Vice-President, Members of the Cabinet, and their deputies or
assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not
comprehend additional duties and functions required by the primary functions of the officials
concerned, who are to perform them in an ex officio capacity as provided by law, without
receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate
making the subject SBMA posts as ex officio or automatically attached to the Office of
the Mayor of Olongapo City without need of appointment. The phrase "shall be
appointed" unquestionably shows the intent to make the SBMA posts appointive and not
merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to
make the subject positions ex officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that subject proviso may
contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided
to have the controversy resolved by the courts. Indeed, the Senators would not have
been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts
as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was
stated, Senator Rene Saguisag remarked that "if the Conference Committee just said
"the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative
choice." 15 The Senator took a view that the constitutional proscription against appointment of
elective officials may have been sidestepped if Congress attached the SBMA posts to the
Mayor of Olongapo City instead of directing the President to appoint him to the post. Without
passing upon this view of Senator Saguisag, it suffices to state that Congress intended the
posts to be appointive, thus nibbling in the bud the argument that they are ex officio.
2

The analogy with the position of Chairman of the Metro Manila Authority made by
respondents cannot be applied to uphold the constitutionality of the
challenged proviso since it is not put in issue in the present case. In the same vein, the
argument that if no elective official may be appointed or designated to another post then
Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the
constitutionality of the subject proviso. In any case, the Vice-President for example, an
elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive
the compensation attached to the cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the appointing authority of the
President. Section 13, par. (d), itself vests in the President the power to appoint the
Chairman of the Board and the Chief Executive Officer of SBMA, although he really has
no choice under the law but to appoint the Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or
persons having authority therefor, to discharge the duties of some office or trust," 17 or
"[t]he selection or designation of a person, by the person or persons having authority therefor,
to fill an office or public function and discharge the duties of the same. 18 In his
treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given
office."
Considering that appointment calls for a selection, the appointing power necessarily
exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office
constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an
"[a]ppointment to office is intrinsically an executive act involving the exercise of
discretion." 22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court 23 we
held:
The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding
for himself who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an
exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental
component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it
(Congress) cannot at the same time limit the choice of the President to only one
ADMIN LAW CASES SET 10
candidate. Once the power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed by Congress can only be met
by one individual, such enactment effectively eliminates the discretion of the appointing
power to choose and constitutes an irregular restriction on the power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a
presidential appointee for the first year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only one eligible, i.e., the
incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question,
the President is precluded from exercising his discretion to choose whom to appoint.
Such supposed power of appointment, sans the essential element of choice, is no power
at all and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during
the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe qualifications where only
one, and no other, can qualify. Accordingly, while the conferment of the appointing power
on the President is a perfectly valid legislative act, the proviso limiting his choice to one is
certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his
tenure or during his incumbency, he may however resign first from his elective post to
cast off the constitutionally-attached disqualification before he may be considered fit for
appointment. The deliberation in the Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word
"term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to
resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being appointed
within the term for which he was elected, we may be depriving the government of
the needed expertise of an individual. 25
3

Consequently, as long as he is an incumbent, an elective official remains ineligible for
appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent elective official was,
notwithstanding his ineligibility, appointed to other government posts, he does not
automatically forfeit his elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto cannot be valid in view of his
disqualification or lack of eligibility. This provision should not be confused with Sec. 13,
Art. VI, of the Constitution where "(n)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . . during
his term without forfeiting his seat . . . ." The difference between the two provisions is
significant in the sense that incumbent national legislators lose their elective posts only
after they have been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed, thus running
the risk of losing the elective post as well as not being appointed to the other post. It is
therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The
effect is quite different where it is expressly provided by law that a person holding one
office shall be ineligible to another. Such a provision is held to incapacitate the incumbent
of an office from accepting or holding a second office (State ex rel. Van Antwerp v
Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
render his election or appointment to the latter office void (State ex rel. Childs v Sutton,
63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla
272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons
holding one office shall be ineligible for election or appointment to another office, either
generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of
the first office to hold the second so that any attempt to hold the second is void (Ala. State
ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment to the
position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment
thereto pursuant to a legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official
are not necessarily null and void; he may be considered a de facto officer, "one whose
acts, though not those of a lawful officer, the law, upon principles of policy and justice,
will hold valid so far as they involve the interest of the public and third persons, where the
duties of the office were exercised . . . . under color of a known election or appointment,
void because the officer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in its exercise,
such ineligibility, want of power or defect being unknown to the public . . . . [or] under
color of an election, or appointment, by or pursuant to a public unconstitutional law,
before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs.
ADMIN LAW CASES SET 10
Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am.
Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances
and other emoluments which may have been received by respondent Gordon pursuant
to his appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters
affecting the legality of the questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which
he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he
articulated
. . . . (much) as we would like to have the present Mayor of Olongapo City as the
Chief Executive of this Authority that we are creating; (much) as I, myself, would
like to because I know the capacity, integrity, industry and dedication of Mayor
Gordon; (much) as we would like to give him this terrific, burdensome and heavy
responsibility, we cannot do it because of the constitutional prohibition which is
very clear. It says: "No elective official shall be appointed or designated to
another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the
strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of the
characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or
whimsical change dictated not by legitimate needs but only by passing fancies, temporary
passions or occasional infatuations of the people with ideas or personalities . . . . Such a
Constitution is not likely to be easily tampered with to suit political expediency, personal
ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states:
". . . Provided, however, That for the first year of its operations from the effectivity of this
Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," is declared unconstitutional; consequently, the
appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J.
Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent
Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him,
4
 ADMIN LAW CASES SET 10
and all acts otherwise legitimate done by him in the exercise of his authority as officer de
facto of SBMA are hereby UPHELD. SO ORDERED.

5

G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner, vs. HON. COURT OF APPEALS and FELIPE DEL
ROSARIO, respondent.
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. 1wph1.t
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.
Petitioner first argues that both the lower court and the Court of Appeals had done what
they had no jurisdiction to do review a resolution of the Commission on Elections. The
submission is without merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative
questions affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and of other
election officials x x x . 2 (Emphasis supplied)
And the decisions, orders and rulings of the Commission on these administrative
questions are reviewable only by the Supreme Court. 3 Since the powers of the
Commission are limited to matters connected with the "conduct of elections," necessarily
its adjudicatory or quasi-judicial powers are likewise limited to controversies connected
with the "conduct of elections." This phrase covers all the administrative process of
preparing and operating the election machinery so that the people could exercise their
right to vote at the given time. 4 All questions and controversies that may arise therefrom
are to be resolved exclusively by the Commission, subject to review only by the Supreme
Court.
However, in this case there appears to be no decision, order or ruling of the Commission
on any administrative question or controversy. There was no dispute before the
ADMIN LAW CASES SET 10
Commission. Respondent never contested the filing of petitioner's certificate of
candidacy. Neither has he disputed before that body the withdrawal thereof. And even if
there was a controversy before the Commission, the same did not and could not possibly
have anything to do with the conduct of elections. What the parties are actually
controverting is whether or not petitioner was still the municipal mayor after September
15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of
the elections for the seat of Congressman for the first district of Rizal. The election can
go on irrespective of whether petitioner is considered resigned from his position of
municipal mayor or not. The only interest and for that matter, jurisdiction, of the
Commission on Elections in this regard is to know who are the running candidates for the
forthcoming elections, for that affects the conduct of election. So when petitioner
withdrew the certificate announcing his candidacy for Congressman, as far as the
Commission could be concerned, petitioner was no longer interested in running for that
seat. The matter of his having forfeited his present position and the possible legal effect
thereon by the withdrawal of his certificate was completely out of the picture. Hence, that
purely legal question properly fell within the cognizance of the courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to his former
position. Sec. 27 of the Rev. Election Code providing that
Any elective provincial, municipal or city official running for an office, other then
the one which he is actually holding, shall be considered resigned from his office
from the moment of the filing of his certificate of candidacy,"
makes the forfeiture automatic and permanently effective upon the filing of the certificate
of for another office. Only the moment and act of filing are considered. Once the
certificate is filed, the seat is forfeited forever and nothing save a new election or
appointment can restore the ousted official. Thus, as We had occasion to remark,
through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of filing of the
certificate of candidacy should be taken into account. The law does not make the
forfeiture dependent upon future contingencies, unforeseen and unforeseeable
since the vacating is expressly made as of the moment of the filing of the
certificate of candidacy x x x . (Emphasis supplied)
Petitioner's contention that the certificate of candidacy was filed without his knowledge
and consent and, hence, the Commission's approval of its withdrawal invalidated such
certificate for all legal purposes, is untenable. It nowhere appears that the Commission's
resolution expressly invalidated the certificate. The withdrawal of a certificate of
candidacy does not necessarily render the certificate void ab initio. Once filed, the
permanent legal effects produced thereby remain even if the certificate itself be
6

subsequently withdrawn. Moreover, both the trial court and the Court of Appeals
expressly found as a fact that the certificate in question was filed with petitioner's
knowledge and consent. And since the nature of the remedy taken by petitioner before
Us would allow a discussion of purely legal questions only, such fact is deemed
conceded.5
ADMIN LAW CASES SET 10
account to the de jure officer for whatever amount of salary he received during the period
of his wrongful retention of the public office.8
Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby,
affirmed in toto. Costs against petitioner. So ordered.

Petitioner would next maintain that respondent Court of Appeals likewise erred in
affirming a lower court judgment requiring petitioner to pay respondent Del Rosario by
way of actual damages the salaries he was allegedly entitled to receive from September
21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he
relies solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been
proclaimed and had assumed office but was later on ousted in an election protest, is
a de facto officer during the time he held the office of senator, and can retain the
emoluments received even as against the successful protestant. Petitioner's factual
premise is the appellate court's finding that he was a de facto officer when he continued
occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable
here for absence of factual and legal similarities. The Rodriguez case involved a senator
who had been proclaimed as duly elected, assumed the office and was subsequently
ousted as a result of an election contest. These peculiar facts called for the application of
an established precedent in this jurisdiction that the candidate duly proclaimed must
assume office notwithstanding a protest filed against him and can retain the
compensation paid during his incumbency. But the case at bar does not involve
a proclaimed elective official who will be ousted because of an election contest. 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 can not therefore be applied in this
case.

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" 6 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.7 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

7

G.R. No. 120193 March 6, 1996
LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH
EVANGELISTA, respondents.
Novel is the situation created by the decision of the Commission on Elections which
declared the winner in an election contest and awarded damages, consisting of
attorney's fees, actual expenses for xerox copies, unearned salary and other
emoluments for the period, from March, 1994 to April, 1995, en masse denominated as
actual damages, notwithstanding the fact that the electoral controversy had become
moot and academic on account of the expiration of the term of office of the Municipal
Mayor of Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a
temporary restraining order and writ of preliminary injunction, seeking the review of the
decision en banc 1 of the Commission of Elections (COMELEC) denying the motion for
reconsideration of the decision 2 of its First Division, 3 which reversed the decision 4 of the
Regional Trial Court 5 in the election case 6 involving the herein parties. While the Regional
Trial Court had found petitioner Luis Malaluan to be the winner of the elections for the
position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the contrary,
found private respondent Joseph Evangelista to be the rightful winner in said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty
candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized
National and Local Elections held on May 11, 1992. Private respondent Joseph
Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected
Mayor for having garnered 10,498 votes as against petitioner's 9,792 votes. Evangelista
was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992, petitioner
filed an election protest with the Regional Trial Court contesting 64 out of the total 181
precincts of the said municipality. The trial court declared petitioner as the duly elected
municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting
without precedent, the court found private respondent liable not only for Malaluan's
protest expenses but also for moral and exemplary damages and attorney's fees. On
February 3, 1994, private respondent appealed the trial court decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution
pending appeal. The motion was granted by the trial court, in an order, dated March 8,
1994, after petitioner posted a bond in the amount of P500,000.00. By virtue of said
order, petitioner assumed the office of Municipal Mayor of Kidapawan, North Cotabato,
and exercised the powers and functions of said office. Such exercise was not for long,
though. In the herein assailed decision adverse to Malaluan's continued governance of
the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on
Elections (COMELEC) ordered Malaluan to vacate the office, said division having found
ADMIN LAW CASES SET 10
and so declared private respondent to be the duly elected Municipal Mayor of said
municipality. The COMELEC en banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May, 1992
elections expired on June 30, 1995. This petition, thus, has become moot and academic
insofar as it concerns petitioner's right to the mayoralty seat in his municipality 7 because
expiration of the term of office contested in the election protest has the effect of rendering the
same moot and academic. 8
When the appeal from a decision in an election case has already become moot, the case
being an election protest involving the office of mayor the term of which had expired, the
appeal is dismissible on that ground, unless the rendering of a decision on the merits
would be of practical value. 9 This rule we established in the case of Yorac
vs. Magalona 10 which we dismissed because it had been mooted by the expiration of the
term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the object of
contention between the parties therein. The recent case of Atienza vs. Commission on
Elections, 11 however, squarely presented the situation that is the exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac vs. Magalona as authority for his main
proposition is grossly inappropriate and misses the point in issue. The sole
question in that case centered on an election protest involving the mayoralty post
in Saravia, Negros Occidental in the general elections of 1955, which was
rendered moot and academic by the expiration of the term of office in December,
1959. It did not involve a monetary award for damages and other expenses
incurred as a result of the election protest. In response to the petitioner's
contention that the issues presented before the court were novel and important
and that the appeal should not be dismissed, the Court held citing the same
provision of the Rules of Court upon which petitioner staunchly places reliance
that a decision on the merits in the case would have no practical value at all, and
forthwith dismissed the case for being moot. That is not the case here. In
contradistinction to Yorac, a decision on the merits in the case at bench would
clearly have the practical value of either sustaining the monetary award for
damages or relieving the private respondent from having to pay the amount thus
awarded. 12
Indeed, this petition appears now to be moot and academic because the herein parties
are contesting an elective post to which their right to the office no longer exists. However,
the question as to damages remains ripe for adjudication. The COMELEC found
8

petitioner liable for attorney's fees, actual expenses for xerox copies, and unearned
salary and other emoluments from March, 1994 to April, 1995, en masse denominated as
actual damages, default in payment by petitioner of which shall result in the collection of
said amount from the bond posted by petitioner on the occasion of the grant of his
motion for execution pending appeal in the trial court. Petitioner naturally contests the
propriety and legality of this award upon private respondent on the ground that said
damages have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely
abused its discretion in awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that "actual or compensatory damages may be
granted in all election contests or in quo warranto proceedings in accordance with
law." 13 COMELEC Rules of Procedure provide that "in all election contests the Court may
adjudicate damages and attorney's fees as it may deem just and as established by the
evidence if the aggrieved party has included such claims in his pleadings." 14 This appears to
require only that the judicial award of damages be just and that the same be borne out by the
pleadings and evidence The overriding requirement for a valid and proper award of damages,
it must be remembered, is that the same is in accordance with law, specifically, the provisions
of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such pecuniary loss suffered by him
as he has duly proved. Such compensation is referred to as actual or compensatory
damages." The Civil Code further prescribes the proper setting for allowance of actual or
compensatory damages in the following provisions:
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor
who acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the obligation was
constituted.
In case of fraud, bad faith, malice or wanton attitude, the obliger shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or
omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant.
ADMIN LAW CASES SET 10
Considering that actual or compensatory damages are appropriate only in breaches of
obligations in cases of contracts and quasi-contracts and on the occasion of crimes
and quasi-delicts where the defendant may be held liable for all damages the proximate
cause of which is the act or omission complained of, the monetary claim of a party in an
election case must necessarily be hinged on either a contract or a quasi-contract or a
tortious act or omission or a crime, in order to effectively recover actual or compensatory
damages. 15 In the absence of any or all of these, "the claimant must be able to point out a
specific provision of law authorizing a money claim for election protest expenses against the
losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create obligations not by
contract, crime or negligence, but directly by law:
Art. 19. Every person must in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good
faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage
to another, shall indemnify the latter for the same.
xxx xxx xxx
Art. 32. Any public officer or employee, 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:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for
other relief. . . . 17
Claimed as part of the damages to which private respondent is allegedly entitled to, is
P169,456.00 constituting salary and other emoluments from March, 1994 to April, 1995
that would have accrued to him had there not been an execution of the trial court's
decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as
a result of an election protest, an elective official who has been proclaimed by the
9

COMELEC as winner in an electoral contest and who assumed office and entered into
the performance of the duties of that office, is entitled to the compensation, emoluments
and allowances legally provided for the position. 18 We ratiocinated in the case
of Rodriguez vs. Tan that:
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 the 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 positions 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. 19
In his concurring opinion in the same case, however, Justice Padilla equally
stressed that, while the general rule is that the ousted elective official is not
obliged to reimburse the emoluments of office that he had received before his
ouster, he would be liable for damages in case he would be found responsible for
any unlawful or tortious acts in relation to his proclamation. We quote the
pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed
unlawful or tortious acts which led to and resulted in his proclamation as
senator-elect, when in truth and in fact he was not so elected, he would
be answerable for damages. In that event the salary, fees and
emoluments received by or paid to him during his illegal incumbency
would be a proper item of recoverable damage. 20
The criterion for a justifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of
obligations arising from contracts or quasi-contracts, tortious acts, crimes or a
specific legal provision authorizing the money claim in the context of election
cases. Absent any of these, we could not even begin to contemplate liability for
damages in election cases, except insofar as attorney's fees are concerned,
since the Civil Code enumerates the specific instances when the same may be
awarded by the court.
Art. 2208. In the absence of stipulation, attorney's fees and expenses of
litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
ADMIN LAW CASES SET 10
(2) When the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the
plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing
to satisfy the plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers
and skilled workers;
(8) In actions for indemnity under workmen's compensation and
employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that
attorney's fees and expenses of litigation should be recovered. 21
Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into
the basis of respondent COMELEC for awarding actual damages to private respondent
in the form of reimbursement for attorney's fees, actual expenses for xerox copies, and
salary and other emoluments that should have accrued to him from March, 1994 to April,
1995 had the RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondent's claim for actual or
compensatory damages in this wise:
. . . under the present legal setting, it is more difficult than in the past to
secure an award of actual or compensatory damages either against the
protestant or the protestee because of the requirerments of the law.
In the instant case, however, We are disposed to conclude that the
election protest filed by the protestant is clearly unfounded. As borne out
10

by the results of the appreciation of ballots conducted by this
Commission, apparently the protest was filed in bad faith without
sufficient cause or has been filed for the sole purpose of molesting the
protestee-appellant for which he incurred expenses. The erroneous ruling
of the Court which invalidated ballots which were clearly valid added
more injury to the protestee-appellant. This would have been bearable
since he was able to perfect his appeal to this Commission. The final
blow, however, came when the Court ordered the execution of judgment
pending appeal which, from all indications, did not comply with the
requirements of Section 2, Rule 39 of the Rules of Court. There was no
good and special reason at all to justify the execution of judgment
pending appeal because the protestee's winning margin was 149 votes
while that of the protestant after the Court declared him a winner
was only a margin of 154 votes. Clearly, the order of execution of
judgment pending appeal was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorney's fees for the new counsel who
handled the Appeal and the Petition for Certiorari before the Court of
Appeals . . . P372,500.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes
(14 copies at P1.50 . . . P11,235.00
3. Actual expenses for xerox copying of ballots . . . P3,919.20
4. Actual damages for loss of salary and other emoluments since March
1994 as per attached Certification issued by the Municipal Account of
Kidapawan . . . P96,832.00 (up to October 1994 only)
Under Article 2208 of the New Civil Code attorney's fees and expenses of
litigation can be recovered (as actual damages) in the case of clearly
unfounded civil action or proceeding. And, while the case of Eulogio
Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of
salaries and allowances (as damages) from elected officials who were
later ousted, under the theory that persons elected has (sic) a right to
compensation during their incumbency, the instant case is different. The
protestee-appellant was the one elected. He was ousted not by final
judgment bur by an order of execution pending appeal which was
groundless and issued with grave abuse of discretion. Protestant-
appellee occupied the position in an illegal manner as a usurper and, not
having been elected to the office, but merely installed through a baseless
ADMIN LAW CASES SET 10
court order, he certainly had no right to the salaries and emoluments of
the office.
Actual damages in the form of reimbursement for attorney's fees
(P372,500.00), actual expenses for xerox copies (P15,154.00), unearned
salary and other emoluments from March 1994 to April 1995 or 14
months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To
(sic) this amount, however, P300,000.00 representing that portion of
attorney's fees denominated as success fee' must be deducted this being
premised on a contingent event the happening of which was uncertain
from the beginning. Moral damages and exemplary damages claimed
are, of course, disallowed not falling within the purview of Section 259 of
the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual
damages of P257,110.00, the amount will be assessed, levied and
collected from the bond of P500,000.00 which he put up before the Court
as
a condition for the issuance of the order of execution of judgment
pending appeal. 22
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995.
The COMELEC en banc, however, did not find any new matter substantial in nature,
persuasive in character or sufficiently provocative to compel reconsideration of said
decision and accordingly affirmed in toto the said decision. Hence, this petition raises,
among others, the issue now solely remaining and in need of final adjudication in view of
the mootness of the other issues anent petitioner's right to the contested office the term
for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to
petitioner no breach of contract or quasi-contract; or tortious act nor crime that may make
him liable for actual damages. Neither has private respondent been "able to point out to
a specific provision of law authorizing a money claim for election protest expenses
against the losing party." 23
We find respondent COMELEC's reasoning in awarding the damages in question to be
fatally flawed. The COMELEC found the election protest filed by the petitioner to be
clearly unfounded because its own appreciation of the contested ballots yielded results
contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other
words, the actuations of the trial court, after the filing of a case before it, are its own, and
11

any alleged error on its part does not, in the absence of clear proof, make the suit
"clearly unfounded" for which the complainant ought to be penalized. Insofar as the
award of protest expenses and attorney's fees are concerned, therefore we find them to
have been awarded by respondent COMELEC without basis, the election protest not
having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending
appeal to be defective because of alleged non-compliance with the requirement that
there be a good and special reason 24 to justify execution pending appeal. We, however,
find that the trial court acted judiciously in the exercise of its prerogatives under the law in
issuing the order granting execution pending appeal. First, it should be noted that the
applicability of the provisions of the Rules of Court, relating to execution pending appeal, has
ceased to be debatable after we definitively ruled in Garcia vs. de Jesus 25 that "Section 2,
Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending
appeal upon good reasons stated in a special order, may be made to apply by analogy or
suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed a
bond in the amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that "as much recognition should be given to the value of the
decision of a judicial body as a basis for the right to assume office as that given by law to
the proclamation made by the Board of Canvassers." 27
. . . Why should the proclamation by the board of canvassers suffice as
basis of the right to assume office, subject to future contingencies
attendant to a protest, and not the decision of a court of justice?
Indeed . . . the board of canvassers is composed of persons who are less
technically prepared to make an accurate appreciation of the ballots,
apart from their being more apt to yield extraneous considerations . . . the
board must act summarily, practically raising (sic) against time, while, on
the other hand, the judge has the benefit of all the evidence the parties
can offer and of admittedly better technical preparation and background,
apart from his being allowed ample time for conscientious study and
mature deliberation before rendering judgment . . . . 28
Without evaluating the merits of the trial court's actual appreciation of the ballots
contested in the election protest, we note on the face of its decision that the trial
court relied on the findings of the National Bureau of Investigation (NBI)
handwriting experts which findings private respondent did not even bother to
rebut. We thus see no reason to disregard the presumption of regularity in the
performance of official duty on the part of the trial court judge. Capping this
combination of circumstances which impel the grant of immediate execution is
the undeniable urgency involved in the political situation in the Municipality of
Kidapawan, North Cotabato. The appeal before the COMELEC would
ADMIN LAW CASES SET 10
undoubtedly cause the political vacuum in said municipality to persist, and so the
trial court reasonably perceived execution pending appeal to be warranted and
justified. Anyway, the bond posted by petitioner could cover any damages
suffered by any aggrieved party. It is true that mere posting of a bond is not
enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one
another, is the dominant consideration for the execution pending appeal. 29
Finally, we deem the award of salaries and other emoluments to be improper and lacking
legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the
ruling in Rodriguez vs. Tan 30 because while in that case the official ousted was the one
proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by
the trial court and assumed office by virtue of an order granting execution pending appeal.
Again, respondent COMELEC sweepingly concluded, in justifying the award of damages, that
since petitioner was adjudged the winner in the elections only by the trial court and assumed
the functions of the office on the strength merely of an order granting execution pending
appeal, the petitioner occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who
undertakes to act officially without any color of right, 31 the petitioner exercised the duties of
an elective office under color of election thereto. 32 It matters not that it was the trial court and
not the COMELEC that declared petitioner as the winner, because both, at different stages of
the electoral process, have the power to so proclaim winners in electoral contests. At the risk
of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a
judicial body is no less a basis than the proclamation made by the COMELEC-convened
Board of Canvassers for a winning candidate's right to assume office, for both are
undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who,
in good faith, has had possession of the office and had discharged the duties pertaining
thereto" 33 and is thus "legally entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting
in election cases of actual and compensatory damages in accordance with law. The
victorious party in an election case cannot be indemnified for expenses which he has
incurred in an electoral contest in the absence of a wrongful act or omission or breach of
obligation clearly attributable to the losing party. Evidently, if any damage had been
suffered by private respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is, damage
without injury, or damage or injury inflicted without injustice, or loss or damage without
violation of a legal right, or a wrong done to a man for which the law provides no
remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC
decision dated May 5, 1995 that private respondent Joseph Evangelista is the winner in
the election for mayor of the Municipality of Kidapawan, North Cotabato, that portion of
12

the decision is deemed moot and academic because the term of office for mayor has
long expired. That portion of the decision awarding actual damages to private respondent
Joseph Evangelista is hereby declared null and void for having been issued in grave
abuse of discretion and in excess of jurisdiction. SO ORDERED.
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 Appeals1 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 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 military-backed 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:
ADMIN LAW CASES SET 10
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 one-fourth (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. 92-063, pertinent portions of which read:
13

[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition
against the [sic] double compensation in cases when officers 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.
ADMIN LAW CASES SET 10
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 "common-sense 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
1vvph!1
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
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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.
ADMIN LAW CASES SET 10
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.
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 ADMIN LAW CASES SET 10
Costs against petitioner. SO ORDERED.

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