Republic of the Philippines

Court of Appeals
MANILA

TENTH DIVISION

DEXTER R. BUTED AND MARCELO CA-G.R. SP No. 154349

C. GUTTIEREZ,* JR.,
Members:
Petitioners,
VILLON J., CHAIRPERSON.,
SORONGON, &
SINGH, JJ.
- versus -

Promulgated:
OFFICE OF THE OMBUDSMAN AND
MARCH 27, 2018
RICARDO A. TAPIA,
Respondents.

RESOLUTION
SINGH, J.:

Submitted for action are: the Petitioners Dexter R. Buted and

Marcelo C. Guttierez, Jr.'s (1) Addendum/Supplement with Supplication
and Urgent Yet Solicitous Reiteration for Temporary Restraining Order-To
Preserve the Right of the Petitioners and the Interest of the School They
Represent;1 (2) the Erratum (Re: Basic Petition dated 26 January 2018
filed on 29 January 2018);2 (3) Manifestation/Compliance;3 (4) the Very
Urgent Yet So Earnest and Solicitous Motion for an Immediate Issuance
of TRO for 60-days Pending Comment; 4 (5) Urgent Manifestation/
Comment;5 and (6) the public respondent Office of the Ombudsman's
Compliance and Motion for Extension of Time.6

* In some portions of the petition and the annexes, the petitioner's surname is spelled “GUTIERREZ.”
1 Rollo, Volume 1, pp. 354-366.
2 Rollo, Volume 1, pp. 367-370.
3 Rollo, Volume 2, pp. 719-720.
4 Rollo, Volume 2, pp. 721-762.
5 Rollo, Volume 2, pp. 773-778.
6 Rollo, Volume 2, pp. 764-772.
CA-G.R. SP No. 154349 Page 2 of 8
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The case stemmed from the complaint filed by private respondent

Ricardo A. Tapia (Tapia) against petitioners. Record shows that petitioner
Dexter R. Buted (Buted), President of Pangasinan State University, issued
Office Memorandum No. 20, Series 2016,7 reassigning Tapia from
Pangasinan State University-Binmaley Campus (PSU-Binmaley) to
Pangasinan State University-Urdaneta Campus (PSU-Urdaneta). Tapia,
however, refused to accept the reassignment because he was suffering from
“Ankylosing Spondylitis” and his income will be compromised due to the
distance from his home to PSU-Urdaneta.8

Petitioner Marcelo C. Guttierez, Jr. (Guttierez), the Executive

Director of PSU-Binmaley, recommended the removal of Tapia's name from
the biometrics as a consequence of the latter's disobedience. Despite that,
Tapia continued reporting for work at PSU-Binmaley, with his attendance
being recorded in the visitor's logbook. Tapia's daily time record and leave
forms were not signed by Guttierez. Thereafter, Tapia received a letter from
Buted declaring him Absent Without Leave (AWOL) and dropping him from
the roll of employees.9 This prompted Tapia to file before the Office of the
Ombudsman an administrative case10 for Grave Misconduct and Oppression
against Buted and Guttierez.

Pending the proceedings in the administrative case, Tapia filed a

letter-appeal before the Civil Service Commission Regional Office I
(CSCRO1), which rendered a Decision11 dated 21 March 2016, finding the
reassignment of Tapia from PSU-Binmaley to PSU-Urdaneta valid. Tapia
filed his Motion for Reconsideration12 before the CSCRO1 and the latter
denied the same in its Resolution13 dated 5 May 2016. Tapia filed his Appeal
before the Civil Service Commission (CSC)14 and the CSC granted Tapia's
appeal and found that the CSCRO1 erred in not considering his medical
condition and the financial hardship that he will suffer if he was reassigned,
ruling that the reassignment was invalid as it amounted to Tapia's
constructive dismissal.15

Aggrieved, Buted filed a Motion for Reconsideration16 before the

CSC. Pending the resolution of Buted's motion for reconsideration, the
Ombudsman rendered the assailed Decision.17 Thereafter, Buted and
7 Rollo, Volume 1Annex D of the Petition for Review, p. 114.
8 Rollo, Volume 1 Reply Letter dated January 27, 2016, Annex F of the Petition for Review, p. 117.
9 Rollo, Joint Counter-Affidavit, OMB-L-A-16-0318, p.186.
10 Rollo, Volume 1, Annex A, Decision dated March 16, 2017, Docketed as OMB-L-A-16-0318, entitled
Ricardo A. Tapia vs. Dexter R. Buted and Marcelo C. Guttierez, Jr.
11 Rollo, Volume 1, Annex K of the Petition for Review, pp. 132.
12 Rollo, Volume 1, Annex N of the Petition for Review, pp. 135-139.
13 Rollo, Volume 1, Annex O of the Petition for Review, pp. 147-150.
14 Rollo, Volume 2, Annex O-1 of the Petition for Review, pp. 451-477.
15 Rollo, Volume 1, Decision dated September 26, 2016, Annex R of the Petition for Review, pp. 300-307.
16 Rollo, Volume 1, Annex S of the Petition for Review, pp. 308-319.
17 Supra at Note 10.
CA-G.R. SP No. 154349 Page 3 of 8
Resolution
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Guttierez directly filed their Petition for Review with this Court, without
first filing a Motion for Reconsideration with the Ombudsman.

The petition is hereby dismissed.

There must be an exhaustion of all

administrative remedies.

Buted and Guttierez claim that the direct filing of this petition before
the Court constitutes an exception to the Doctrine of Exhaustion of
Administrative Remedies considering that: (a) there is an irreparable injury;
(b) to require exhaustion of administrative remedies would be unreasonable;
(c) the rule does not provide any other plain, speedy and adequate remedy;
and (d) there is an urgency for judicial intervention.

The Court finds the grounds invoked unsupported.

Sections 7 and 8 of Rule III of the Rules of Procedure of the

Ombudsman, as amended by Administrative Order No. 17 provide:

“Sec. 7. FINALITY OF DECISION. — Where the respondent is

absolved of the charge and in case of conviction where the penalty
imposed is public censure or reprimand, suspension of not more than
one (1) month, or a fine equivalent to one (1) month salary, the
decision shall be final and unappealable. In all other cases, the
decision shall become final after the expiration of ten (10) days from
receipt thereof by the respondent, unless a motion for reconsideration
or petition for certiorari shall have been filed by him as prescribed in
Section 27 of RA 6770.

Sec. 8. MOTION FOR RECONSIDERATION OR

REINVESTIGATION. — Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed
within ten (10) days from receipt of the decision by the respondent on
any of the following grounds:

a) New evidence had been discovered which materially

affects the order, directive or decision.
b) Errors of facts or law, or irregularities have been
committed prejudicial to the interest of the movant.

Only one motion for reconsideration or reinvestigation shall be

allowed, and the hearing officer shall resolve the same within five (5)
days from receipt thereof.” (underscoring supplied)
CA-G.R. SP No. 154349 Page 4 of 8
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The remedy of a motion for reconsideration was still available to

Buted and Guttierez when the Ombudsman rendered the assailed Decision.
Their failure to file the said motion clearly indicates that they have not yet
exhausted all administrative remedies available to them, and this Court
cannot interfere with and usurp the quasi-judicial power of the Ombudsman.

In the case of Maglalang vs. PAGCOR,18 the Supreme Court

explained the Doctrine of Exhaustion of Administrative Remedies:

Under the doctrine of exhaustion of administrative remedies,

before a party is allowed to seek the intervention of the court, he or
she should have availed himself or herself of all the means of
administrative processes afforded him or her. Hence, if resort to a
remedy within the administrative machinery can still be made by
giving the administrative officer concerned every opportunity to
decide on a matter that comes within his or her jurisdiction, then such
remedy should be exhausted first before the court's judicial power can
be sought. The premature invocation of the intervention of the court is
fatal to one’s cause of action. The doctrine of exhaustion of
administrative remedies is based on practical and legal reasons. The
availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. Furthermore, the
courts of justice, for reasons of comity and convenience, will shy
away from a dispute until the system of administrative redress has
been completed and complied with, so as to give the administrative
agency concerned every opportunity to correct its error and dispose of
the case.

However, the doctrine of exhaustion of administrative remedies

is not absolute as it admits of the following exceptions: (1) when there
is a violation of due process; (2) when the issue involved is purely a
legal question; (3) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (4) when there is estoppel
on the part of the administrative agency concerned; (5) when there is
irreparable injury; (6) when the respondent is a department secretary
whose acts as an alter ego of the President bears the implied and
assumed approval of the latter; (7) when to require exhaustion of
administrative remedies would be unreasonable; (8) when it would
amount to a nullification of a claim; (9) when the subject matter is a
private land in land case proceedings; (10) when the rule does not
provide a plain, speedy and adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial intervention, and
unreasonable delay would greatly prejudice the complainant; (12)
where no administrative review is provided by law; (13) where the

18 G.R. No. 190566, December 11, 2013.

CA-G.R. SP No. 154349 Page 5 of 8
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rule of qualified political agency applies and (14) where the issue of
non-exhaustion of administrative remedies has been rendered moot.”

Even assuming that the rules may be relaxed to allow the petition for
review to proceed, the Court finds that Buted and Guttierez failed to
substantiate the exceptions warranting a disregard of the Doctrine of
Exhaustion of Administrative Remedies.

First, there is no irreparable injury caused to Buted and Guttierez

when the Ombudsman meted out the penalty of suspension from service for
a period of nine (9) months. As President and Executive Director of PSU,
Buted and Guttierez are occupying public positions. As public officers, their
tenure are based on public trust; hence, no proprietary title attaches to their
positions and they may be removed at any time when substantial evidence is
adduced in an appropriate administrative proceeding.

“It is a basic tenet in the country's constitutional system

that 'public office is a public trust,' and that there is no vested
right in public office, nor an absolute right to hold office. No
proprietary title attaches to a public office, as public service is
not a property right.” 19 (underscoring supplied)

Second, Buted and Guttierez have no basis to argue that it is

unreasonable to require the exhaustion of administrative remedies and that
there is an urgency to resort to judicial intervention. The Court is prohibited
from taking cognizance of an administrative case if recourse is available in
an administrative or quasi-judicial body under the Doctrine of Primary
Jurisdiction. The Doctrine of Primary Jurisdiction holds that if a case is
such that its determination requires the expertise, specialized training and
knowledge of an administrative body, relief must first be obtained in an
administrative proceeding before resort to the courts is had even if the matter
may well be within their proper jurisdiction.20

In the case of Smart Communications, Inc. vs. Aldecoa, et al.,21 the

Supreme Court explained the Doctrine of Exhaustion of Administrative
Remedies and the Doctrine of Primary Jurisdiction:

“Based on the principle of exhaustion of administrative

remedies and its corollary doctrine of primary jurisdiction, it was
premature for the Court of Appeals to take cognizance of and rule

19 The Provincial Government of Camarines Norte v. Gonzales, G.R. No. 185740, July 23, 2013.
20 Euro-Med Laboratories, Phil., Inc. vs. The Province of Batangas, G.R. No. 148106, July 17, 2006.
21 G.R. No. 166330, September 11, 2013, citing The Province of Zamboanga vs. Court of Appeals, 396 Phil.
709, 717-720 (2000).
CA-G.R. SP No. 154349 Page 6 of 8
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upon the issue of the validity or nullity of petitioner’s locational

clearance for its cellular base station.

The principle of exhaustion of administrative remedies and

the doctrine of primary jurisdiction were explained at length by the
Court in Province of Zamboanga del Norte v. Court of Appeals, as
follows:

The Court in a long line of cases has held that

before a party is allowed to seek the intervention of the
courts, it is a pre-condition that he avail himself of all
administrative processes afforded him. Hence, if a
remedy within the administrative machinery can be
resorted to by giving the administrative officer every
opportunity to decide on a matter that comes within his
jurisdiction, then such remedy must be exhausted first
before the court's power of judicial review can be
sought. The premature resort to the court is fatal to
one's cause of action. Accordingly, absent any finding
of waiver or estoppel, the case may be dismissed for
lack of cause of action.

The doctrine of exhaustion of administrative

remedies is not without its practical and legal reasons.
Indeed, resort to administrative remedies entails lesser
expenses and provides for speedier disposition of
controversies. Our courts of justice for reason of
comity and convenience will shy away from a dispute
until the system of administrative redress has been
completed and complied with so as to give the
administrative agency every opportunity to correct its
error and to dispose of the case.

xxxx

The doctrine of primary jurisdiction does not

warrant a court to arrogate unto itself the authority to
resolve a controversy the jurisdiction over which is
initially lodged with an administrative body of special
competence.

We have held that while the administration

grapples with the complex and multifarious problems
caused by unbridled exploitation of our resources, the
judiciary will stand clear. A long line of cases
establishes the basic rule that the court will not
interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the
CA-G.R. SP No. 154349 Page 7 of 8
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regulation of activities coming under the special

technical knowledge and training of such agencies.

In fact, a party with an administrative remedy

must not merely initiate the prescribed administrative
procedure to obtain relief, but also pursue it to its
appropriate conclusion before seeking judicial
intervention. The underlying principle of the rule on
exhaustion of administrative remedies rests on the
presumption that when the administrative body, or
grievance machinery, is afforded a chance to pass upon
the matter, it will decide the same correctly.”
(underscoring supplied)

Lastly, Buted and Guttierez also falter in substantiating their claim

that there is no other plain, speedy and adequate remedy available to them,
when clearly they could and should have filed a motion for reconsideration
before the Ombudsman.

Hence, their failure to file the motion for reconsideration is fatal to

their cause, because, following Section 7 of the Rule III of the Rules of
Procedure of the Ombudsman, as amended by Administrative Order No. 17,
the assailed Decision of the Ombusdman has become final and executory.

“A decision that has acquired finality becomes immutable and

unalterable. This quality of immutability precludes the modification
of a final judgment, even if the modification is meant to correct
erroneous conclusions of fact and law. And this postulate holds true
whether the modification is made by the court that rendered it or by
the highest court in the land. The orderly administration of justice
requires that, at the risk of occasional errors, the
judgments/resolutions of a court must reach a point of finality set by
the law. The noble purpose is to write finis to dispute once and for all.
This is a fundamental principle in our justice system, without which
there would be no end to litigations. Utmost respect and adherence to
this principle must always be maintained by those who exercise the
power of adjudication. Any act, which violates such principle, must
immediately be struck down. Indeed, the principle of conclusiveness
of prior adjudications is not confined in its operation to the judgments
of what are ordinarily known as courts, but extends to all bodies upon
which judicial powers had been conferred.”22 (underscoring supplied)

As a consequence, the prayer for the issuance of a Temporary

Restraining Order and/or Writ of Preliminary Injunction must be denied.

22 One Shipping Corporation, et al., v. Penafiel, G.R. No. 192406, January 21, 2015.
CA-G.R. SP No. 154349 Page 8 of 8
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Settled is the rule that decisions of the Ombudsman are immediately

executory pending appeal and may not be stayed by the filing of an appeal or
the issuance of an injunctive writ.23 Moreover, no vested right is violated by
the application of Section 7 because the respondent in the administrative
case is considered preventively suspended while his case is on appeal and, in
the event he wins on appeal, he shall be paid the salary and such other
emoluments that he did not receive by reason of the suspension or removal.
It is important to note that there is no such thing as a vested interest in an
office, or even an absolute right to hold office. Excepting constitutional
offices which provide for special immunity as regards salary and tenure, no
one can be said to have any vested right in an office.24

WHEREFORE, the petition for review is DISMISSED.

The Petitioners Dexter R. Buted and Marcelo C. Guttierez, Jr.'s (1)

Addendum/Supplement with Supplication and Urgent Yet Solicitous
Reiteration for Temporary Restraining Order-To Preserve the Right of the
Petitioners and the Interest of the School They Represent; 25 (2) the Erratum
(Re: Basic Petition dated 26 January 2018 filed on 29 January 2018); 26 (3)
Manifestation/Compliance;27 (4) the Very Urgent Yet So Earnest and
Solicitous Motion for an Immediate Issuance of TRO for 60-days Pending
Comment;28 (5) Urgent Manifestation/ Comment;29 and (6) the public
respondent Office of the Ombudsman's Compliance and Motion for
Extension of Time30 are NOTED WITHOUT ACTION.

SO ORDERED.

ORIGINAL SIGNED
MARIA FILOMENA D. SINGH
Associate Justice
WE CONCUR:

ORIGINAL SIGNED ORIGINAL SIGNED

SESINANDO E. VILLON EDWIN D. SORONGON
Associate Justice Associate Justice

23 Belmonte, et al., v. Office of the Deputy Ombudsman for the Military and Enforcement Offices, et al., G.R.
No. 197665, January 13, 2016, citing Villaseñor v. Ombusdman, G.R. No. 202303, June 4, 2014, citing
Ombudsman v. Samaniego, 646 Phil. 445, 449 (2010).
24 Villaseñor v. Ombudsman, supra, citing Facura v. CA, 658 Phil. 554, 579-580 (2011), citing Ombudsman
v. Samaniego, supra note 13, citing In the Matter to Declare in Contempt of Court Hon. Simeon A.
Datumanong, Secretary of the DPWH, 529 Phil. 619, 630-631 (2006).
25 Rollo, Volume 1, pp. 354-366.
26 Rollo, Volume 1, pp. 367-370.
27 Rollo, Volume 2, pp. 719-720.
28 Rollo, Volume 2, pp. 721-762.
29 Rollo, Volume 2, pp. 773-778.
30 Rollo, Volume 2, pp. 764-772.