THIRD DIVISION

HRS. OF SPS. LUCIANO and G.R. No. 157972

CONSOLACION VENTURILLO, On October 4, 2001, respondent City Engineer asked the
Represented by ROWENA B. Present: petitioners to secure a building permit for the house erected on the lot,
VENTURILLO-SUCALDITO,
Petitioners, QUISUMBING, J., after it was shown that said structure had no building permit.
Chairperson,
CARPIO,
CARPIO MORALES, The petitioners then hired an engineer who prepared the
- versus - TINGA, and necessary plans and other documents, which were submitted to the
VELASCO, JR., JJ.
HON. JESUS V. QUITAIN, Promulgated: respondent City Engineer.
Presiding Judge, RTC-Br. 15,
11th Judicial Region, Davao City and October 30, 2006
ENGR. MEINRADO R. METRAN,
On October 27, 2002, the Sanggunian Barangay of Barangay 4-
City Engineer and Building Official of A, Poblacion, Davao City passed a resolution requesting
The City of Davao,
Respondents.
the Sanggunian Panglungsud of Davao City to declare the portion of the
proposed extension of Mayon St., as suppressed road.
x----------------------------------------------------------------------------x
DECISION On January 8, 2003, respondent City Engineer sent petitioners a
TINGA, J.:
Notice of Order of Removal.
The Heirs of Spouses Luciano and Consolacion Venturillo (Heirs of Venturillo),
represented by Rowena B. Venturillo-Sucaldito, assail for having been issued with grave
abuse of discretion the Order[1] dated April 22, 2003 of the Regional Trial Court On February 13, 2003, the Zoning Administrator wrote
of Davao City, Branch 15, which dismissed their petition for mandamus and denied their petitioners that the area they were occupying is a road right-of-way.
prayer for injunctive relief.
On March 20, 2003, the petitioners herein filed a petition for
The following statement of facts is taken from the Courts Resolution [2] dated May mandamus with urgent prayer for temporary restraining order (TRO) and
15, 2003: preliminary injunction against respondent City Engineer with the RTC
Sometime in 1942, the of Davao City, docketed as SP Civil Case No. 29597-2003. The trial
Spouses Luciano and Consolacion Venturillo occupied a 678-square court granted the temporary restraining order prayed for.
meter lot in Poblacion, Davao City, said lot being public
land. The Venturillocouple erected a house on the said property and On March 25, 2003, the trial court ordered the parties in a
begot 11 children, the petitioners herein, during their lifetime. hearing set for March 27, 2003 to determine whether the TRO should be
extended for 17 days. Said hearing, however, was cancelled at the
In 1974, the Davao City Assessors Office directed manifestation of the respondent City Engineer.
the Venturillos to file a Tax Declaration. They complied with the said
directive and paid the required taxes. The petitioners then continued the On March 31, 2003, the hearing for the writ of preliminary
renewal of the tax declarations and paying of taxes. injunction was set for April 14-15, 2003.

Sometime in 2000, Rowena Venturillo-Sucaldito filed a sales
application with the Department of Environment and Natural Resources
(DENR) and the DENR wrote the City Government for its comments
regarding her application. In response, respondent City Engineer sent an
inspection team to check out the property.
On June 8, 2000, the inspectors submitted a report
recommending the approval of Sucalditos application. No immediate
action, however, was taken by respondent City Engineer on the report.
On April 8, 2003, respondent City Engineer moved for an
extension of time to file his answer to the petition.
On April 15, 2003, the respondent City Engineer manifested in
open court that he was not opposing the application for a writ of
preliminary injunction. The trial court then ordered the petitioners to
submit their formal offer of exhibits to support their application on April
21, 2003 and the City Engineer to comment upon the same within five
 days from receipt, after which the trial court would rule upon the
application for injunction.
On April 22, 2003, petitioner moved to have their tardily filed
formal exhibits admitted and submitted their formal offer of
exhibits. That same day, the trial court denied the issuance of the writ of
preliminary injunction and dismissed the SP Civil Case No. 29597-2003.
The Heirs of Venturillo allege that the trial court gravely abused its discretion
when it dismissed their petition for mandamus and denied their prayer for injunction
without: (1) ruling on the admissibility of their admittedly tardy formal offer of exhibits; (2)
waiting for respondent City Engineers comment or objection to said formal offer; and (3)
without waiting for the answer of the City Engineer in the mandamus case.
In the afore-cited Resolution dated May 15, 2003, the Court, ruling that there is a
need to maintain the last, actual, peaceable, and uncontested state of things which preceded
the present controversy, directed the parties to maintain the status quo.
The Office of the City Legal Officer filed a Comment[3] dated July 31, 2003 on
behalf of respondent City Engineer Meinrado R. Metran, contending that the trial courts
dismissal of the petition for mandamus and denial of the prayer for injunction do not
constitute grave abuse of discretion. According to respondent, the Heirs of Venturillo were
not able to establish any legal right to demand the issuance of a building permit because the
lot on which their structure was constructed remains to be public land delineated as a road
right-of-way. Although the Heirs of Venturillo filed a sales application with the DENR, their
application was not processed.
Moreover, the Heirs of Venturillo allegedly failed to comply with the
indispensable requirement of filing a motion for reconsideration before they sought recourse
to this Court via a petition for certiorari. Neither did they file an appeal of the trial courts
final Order.
The Heirs of Venturillo filed a Reply[4] dated December 15, 2003 reiterating their
arguments.
In the Resolution[5] dated May 19, 2004, the parties were required to file their
respective memoranda. Thus, respondent filed a Memorandum[6] dated July 15, 2004, while
the Heirs of Venturillo filed their Memorandum[7] on September 21, 2004.
The general rule is that the remedy to obtain reversal or modification of a
judgment on the merits is appeal. This is true even if the error ascribed to the court which
rendered judgment is its lack of jurisdiction over the subject matter, or the exercise of power
in excess thereof, or grave abuse of discretion in the findings of fact or of law set out in the
decision.[8]
In this case, the Heirs of Venturillo received the assailed Order of the trial court
on April 25, 2003. They therefore had 15 days from this date, or until May 10, 2003, within
which to file an appeal to the Court of Appeals under Rule 41 of the 1997 Rules of Civil
Procedure (Rules of Court) or a petition for review on certiorari to this Court under Rule 45
of the same rules. However, in the guise of availing of a petition for certiorari under Rule 65
of the Rules of Court, the Heirs of Venturillofiled their petition only on May 12, 2003. It is
axiomatic that the special civil action of certiorari cannot be used as a substitute for the lost
or lapsed remedy of appeal.[9]
Even assuming that the Heirs of Venturillo have a cause of action ripe for the
extraordinary writ of certiorari, they clearly disregarded the hierarchy of courts when they
directly filed their petition with this Court without adducing any special and important
reason or exceptional or compelling circumstance for such a recourse. Considering that the
special civil action of certiorari under Rule 65 of the Rules of Court is within the concurrent
original jurisdiction of the Supreme Court and the Court of Appeals, the petition should have
been initially filed in the Court of Appeals in strict observance of the doctrine on the
hierarchy of courts.[10]
Moreover, the Heirs of Venturillo failed to file a motion for reconsideration of the
trial courts Order, depriving the latter of the opportunity to correct whatever error it may
have committed. Rule 65 of the Rules of Court requires that petitioner be left with no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of law. [11]
A motion for reconsideration is a plain, speedy, and adequate remedy. The filing
thereof is a condition precedent in order that a petition for certiorari may be given due
course.[12] Although there are certain recognized exceptions to this rule, such as where the
order is a patent nullity for lack of jurisdiction on the part of the court which rendered it, or
where the questions raised in the certiorari proceeding have been duly raised and passed
upon in the lower court,[13] we find no such exception in this case which would warrant a
departure from the rule.
Regional Trial Courts are fully clothed with jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced
in any part of their respective regions. Moreover, the question of whether it should have first
ruled on the admissibility of the tardy formal offer of exhibits filed by the Heirs
of Venturillo, and waited for respondents comment or objection to said formal offer and
answer in the mandamus case, were not raised and passed upon by the trial court precisely
because the Heirs of Venturillo failed to file a motion for reconsideration. Had they done so,
the trial court would have been given the opportunity to correct any factual or fancied error
attributed to it by way of re-examination of the legal and factual aspects of the case.
 These procedural errors, notwithstanding, and in the interest of finally disposing of
this case, we reviewed its merits and found that indeed grave abuse of discretion attended
the issuance of the assailed Order of the trial court.
The remedy of mandamus lies to compel the performance of a ministerial
duty.[14] A purely ministerial act or duty, in contradistinction to a discretionary act, is one
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of legal authority, without regard to or the exercise of his own
judgment, upon the propriety or impropriety of the act done. If the law imposes a duty upon
a public officer, and gives him the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial.[15]
The issuance of a building permit may be considered a ministerial duty only when
the application and the plans are in conformity with the requirements of zoning and land use,
lines and grades, structural design, sanitary and sewerage, environmental health, electrical
and mechanical safety as well as with other rules and regulations promulgated in accordance
with the provisions of the National Building Code.[16]
In this case, the Heirs of Venturillo complied with all the requirements for the
procurement of a building permit enumerated under the National Building Code, such as the
description of the work to be covered by the permit applied for; description and ownership
of the lot on which the proposed work is to be done; the use or occupancy for which the
proposed work is intended; estimated cost of the proposed work; and the plans and
specifications prepared, signed and sealed by a duly licensed engineer. [17] They also paid the
requisite fees for the application.[18]
Having done so, it became incumbent upon respondent City Engineer to issue the
building permit applied for. His refusal to perform an act which the law enjoins him to do,
upon the full compliance by the Heirs of Venturillo of the conditions provided under the
law, entitles the latter to the writ of mandamus prayed for.
By the same token, the Heirs of Venturillo are entitled to a writ of injunction to
prevent the threatened summary demolition of their residence. The requisites for an
injunctive writ to issue are that: (1) the petitioner/applicant must have a clear and
unmistakable right; (2) there is a material and substantial invasion of such right; and (3)
there is an urgent and permanent necessity for the writ to prevent serious damage. [19]
Respondent City Engineers refusal to issue the building permit and concomitant
order for the Heirs of Venturillo to cause the demolition of their house or else the same shall
be summarily demolished[20] are premised on the fact that the house which the Heirs
of Venturillo intended to refurbish stands in the middle of the proposed extension of
Mt. Mayon Street, an area which had been declared as a road right-of-way by the City
Government.
It should be emphasized, however, that the Heirs of Venturillo, through their
parents, have continuously possessed and occupied the land on which the house sought to be
refurbished stands since 1942. This possession was with the tacit consent and authorization
of the City Government. In fact, the City Assessors Office directed the Venturillos to file tax
declarations and pay real property taxes thereon which they have consistently complied with.
In Estate of Gregoria Francisco v. Court of Appeals,[21] the municipal mayor
of Isabela, Basilan ordered the summary demolition, without judicial authority, of
a quonset building which stood on a lot owned by the Philippine Ports Authority. The
municipal mayor justified the demolition as an exercise of police power and for reasons of
health, safety and general welfare.
The Court awarded just compensation the amount of which was for the trial court
to determine in favor of the petitioner whose building was demolished by the municipality
even before a proper tribunal could decide whether or not the building constituted a nuisance
in law. The ruling was premised on the ground that the owner of the building was in lawful
possession of the lot and the building by virtue of the permit from the authorized
government agency when the demolition was affected.
In the same vein, by virtue of the City Governments tacit consent, the Heirs
of Venturillo are not squatters on public land but are in lawful possession thereof, including
the house subject of the summary demolition order of respondent City Engineer. The Heirs
of Venturillo have a clear and unmistakable legal right not to be disturbed in their lawful
possession of the property unless the proper judicial tribunal has determined that the same
constitutes a nuisance in law.
The trial court should have issued an injunctive writ to prevent the imminent threat
of summary demolition of the Heirs of Venturillos residence without judicial
proceedings. That it failed to safeguard petitioners right to due process constitutes grave
abuse of discretion.
WHEREFORE, the instant petition is GRANTED. The Order dated April 22,
2003 of the Regional Trial Court of Davao City, Branch 15, is ANNULLED and SET
ASIDE. The public respondent City Engineer of Davao City is DIRECTED to issue in favor
of petitioners the building permit applied for. He is further ORDERED to CEASE and
DESIST from enforcing the Order of Removal dated January 8, 2003. No pronouncement as
to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
Adm. Matter No. R-181-P July 31, 1987
ADELIO C. CRUZ, complainant,
vs.
QUITERIO L. DALISAY, Deputy Sheriff, RTC, Manila, respondents.
RESOLUTION
FERNAN, J.:
In a sworn complaint dated July 23, 1984, Adelio C. Cruz charged Quiterio L.
Dalisay, Senior Deputy Sheriff of Manila, with "malfeasance in office, corrupt
practices and serious irregularities" allegedly committed as follows:
1. Respondent sheriff attached and/or levied the money belonging to complainant
Cruz when he was not himself the judgment debtor in the final judgment of NLRC
NCR Case No. 8-12389-91 sought to be enforced but rather the company known as
"Qualitrans Limousine Service, Inc.," a duly registered corporation; and,
2. Respondent likewise caused the service of the alias writ of execution upon
complainant who is a resident of Pasay City, despite knowledge that his territorial
jurisdiction covers Manila only and does not extend to Pasay City.
In his Comments, respondent Dalisay explained that when he garnished
complainant's cash deposit at the Philtrust bank, he was merely performing a
ministerial duty. While it is true that said writ was addressed to Qualitrans Limousine
Service, Inc., yet it is also a fact that complainant had executed an affidavit before
the Pasay City assistant fiscal stating that he is the owner/president of said
corporation and, because of that declaration, the counsel for the plaintiff in the labor
case advised him to serve notice of garnishment on the Philtrust bank.
On November 12, 1984, this case was referred to the Executive Judge of the
Regional Trial Court of Manila for investigation, report and recommendation.
Prior to the termination of the proceedings, however, complainant executed an
affidavit of desistance stating that he is no longer interested in prosecuting the case
against respondent Dalisay and that it was just a "misunderstanding" between them.
Upon respondent's motion, the Executive Judge issued an order dated May 29,
1986 recommending the dismissal of the case.
It has been held that the desistance of complainant does not preclude the taking of
disciplinary action against respondent. Neither does it dissuade the Court from
imposing the appropriate corrective sanction. One who holds a public position,
especially an office directly connected with the administration of justice and the
execution of judgments, must at all times be free from the appearance of
impropriety.1
We hold that respondent's actuation in enforcing a judgment against complainant
who is not the judgment debtor in the case calls for disciplinary action. Considering
the ministerial nature of his duty in enforcing writs of execution, what is incumbent
upon him is to ensure that only that portion of a decision ordained or decreed in the
dispositive part should be the subject of execution. 2 No more, no less. That the title
of the case specifically names complainant as one of the respondents is of no
moment as execution must conform to that directed in the dispositive portion and
not in the title of the case.
The tenor of the NLRC judgment and the implementing writ is clear enough. It
directed Qualitrans Limousine Service, Inc. to reinstate the discharged employees
and pay them full backwages. Respondent, however, chose to "pierce the veil of
corporate entity" usurping a power belonging to the court and assumed
improvidently that since the complainant is the owner/president of Qualitrans
Limousine Service, Inc., they are one and the same. It is a well-settled doctrine both
in law and in equity that as a legal entity, a corporation has a personality distinct
and separate from its individual stockholders or members. The mere fact that one is
president of a corporation does not render the property he owns or possesses the
property of the corporation, since the president, as individual, and the corporation
are separate entities.3
Anent the charge that respondent exceeded his territorial jurisdiction, suffice it to
say that the writ of execution sought to be implemented was dated July 9, 1984,
or prior to the issuance of Administrative Circular No. 12 which restrains a sheriff
from enforcing a court writ outside his territorial jurisdiction without first notifying in
writing and seeking the assistance of the sheriff of the place where execution shall
take place.
ACCORDINGLY, we find Respondent Deputy Sheriff Quiterio L. Dalisay
NEGLIGENT in the enforcement of the writ of execution in NLRC Case-No. 8-
12389-91, and a fine equivalent to three [3] months salary is hereby imposed with a
stern warning that the commission of the same or similar offense in the future will
merit a heavier penalty. Let a copy of this Resolution be filed in the personal record
of the respondent.
SO ORDERED.

THIRD DIVISION
January 11, 2017
G.R. No. 188448
RODOLFO LAYGO and WILLIE LAYGO, Petitioners,
vs.
MUNICIPAL MAYOR OF SOLANO, NUEVA VIZCAYA, Respondent.
DECISION
JARDELEZA, J.:
This is a Petition for Review on Certiorari1under Rule 45 of the Revised Rules of
Court from the Decision2 dated December 16, 2008 of the Court of Appeals (CA) in
CA-G.R. SP No. 103922 and its Resolution3 dated June 19, 2009.
Facts
In July 2005, Aniza Bandrang (Bandrang) sent two letter-complaints4 to then
Municipal Mayor Santiago O. Dickson (Mayor Dickson) and the Sangguniang
Bayan of Solano, Nueva Vizcaya, informing them of the illegal sublease she entered
into with petitioners Rodolfo Laygo and Willie Laygo over Public Market Stalls No.
77-A, 77-B, 78-A, and 78-B, which petitioners leased from the Municipal
Government. Bandrang claimed that petitioners told her to vacate the stalls, which
they subsequently subleased to another. Bandrang expressed her willingness to
testify against petitioners if need be, and appealed that she be given priority in the
future to lease the stalls she vacated. 5
In August 2005, the Sangguniang Bayan endorsed the letter of Bandrang and a
copy of Resolution No. 183-20046 to Mayor Dickson for appropriate action.
The Sanggunian informed Mayor Dickson that the matter falls under the jurisdiction
of his office since it (Sanggunian) has already passed and approved Resolution No.
183-2004, which authorized Mayor Dickson to enforce the provision against
subleasing of stalls in the public market.7
Mayor Dickson, in response, informed the Sanggunian that the stalls were
constructed under a Build-Operate-Transfer (BOT) scheme, which meant that the
petitioners had the right to keep their stalls until the BOT agreement was satisfied.
He then asked the Sanggunian if provisions were made to sanction lessees under
the BOT scheme similar to the provision against subleasing (Item No. 9) in the
contract of lease.8
Thereafter, Bandrang wrote another letter to the Sanggunian, praying and
recommending to Mayor Dickson, by way of a resolution, the cancellation of the
lease contract between the Municipality and petitioners for violating the provision on
subleasing. She suggested that after which, the stalls can be bidded upon anew
and leased to the successful bidder. She made the suggestion because Mayor
Dickson did not act on her concerns even after the Sanggunian referred them to
him. 9
The Sanggunian once again referred the letter of Bandrang, together with a copy of
Resolution No. 183-2004, to Mayor Dickson for appropriate action.
The Sanggunian opined that they no longer need to make any recommendation to
Mayor Dickson because Resolution No. 183-2004 already empowered and
authorized him to cancel the lease contracts pursuant to its pertinent provisions. 10
Mayor Dickson, however, did not act on the letter of Bandrang and on the referrals
of the Sanggunian. Thus, Bandrang filed a Petition for Mandamus 11 against him
before the Regional Trial Court of Bayombong, Nueva Vizcaya (RTC).
Subsequently, she amended her petition to implead petitioners. 12 Bandrang alleged
that despite already being aware of the violations of the lease contracts of
petitioners with the Municipality, Mayor Dickson still refused to enforce the
provisions of the lease contracts against subleasing. Bandrang concluded that
Mayor Dickson's inaction can only be construed as an unlawful neglect in the
performance and enforcement of his public duty as the Chief Executive of Solano,
Nueva Vizcaya. Thus, she sought an order directing Mayor Dickson to immediately
cancel the lease between the Municipal Government and petitioners over Public
Market Stall Nos. 77-A, 77-B, 78-A, and 78-B, and to lease the vacated stalls to
interested persons. 13
In his Answer with Special and Affirmative Defenses, 14 Mayor Dickson claimed that
under the principle of pari delicto, Bandrang had no right to seek remedy with the
court as she was guilty herself in leasing the market stalls. Mayor Dickson insisted
that he acted in accordance with law by referring the matter to the Sanggunian for
appropriate action. He also argued that Bandrang had no cause of action against
him and that she was not a real-party-in-interest. He likewise asserted that the
subject of the mandamus was not proper as it entailed an act which was purely
discretionary on his part. 15
In his Pre-Trial Brief, 16 Mayor Dickson elaborated that Bandrang had no cause of
action because the stalls were on a BOT scheme covered by an ordinance. During
the hearing, Mayor Dickson presented a copy of the resolution of
the Sanggunian indicating that there was a directive to all stall owners in the public
market of Solano, Nueva Vizcaya to build their own stalls after a fire gutted the
public market. 17
On the other hand, petitioners denied that they were the lessees of Stalls 77 A and
B and 78 A and B. They clarified that Clarita Laygo (Clarita), their mother, was the
lessee of the stalls by virtue of a BOT scheme of the Municipality. At the time they
entered into a contract of lease with Bandrang, it was agreed that the contract was
subject to the consent of the other heirs of Clarita. The consent, however, was
never given; hence, there was no subleasing to speak of. Even on the assumption
that there was, petitioners maintained that the prohibition on subleasing would not
apply because the contract between the Municipality and Clarita was one under a
BOT scheme. Resolution No. 183-2004 only covered stall holders who violated their
lease contracts with the Municipal Government. Since their contract with the
Municipal Government was not a lease contract but a BOT agreement, Resolution
No. 183-2004 would neither apply to them, nor be enforced against them. 18 Further,
even granting arguendo that the prohibition would apply, petitioners claimed that
there was no more ground for the revocation of the lease because the subleasing
claimed by Bandrang had ended and the subsequent receipt by the Municipality of
payments ratified the contract with petitioners. 19
Meanwhile, on July 23, 2007, the RTC issued an Order directing the substitution of
then incumbent mayor Hon. Philip A. Dacayo (Mayor Dacayo) as respondent in
place of Mayor Dickson.20
Bandrang filed a Motion for Summary Judgment21 on January 8, 2008 arguing that
no genuine factual issues existed to necessitate trial. Bandrang reiterated the
violation of petitioners against subletting in their lease contracts with the Municipal
Government. She stated that the will of the Sanggunian to enforce the policy
against subleasing was bolstered by the fact that it passed two more resolutions,
Resolution No. 017-2006 and Resolution No. 135-2007, reiterating the
implementation of Resolution No. 183-2004.22 She also alleged for the first time that
after the filing of the case, another violation besides the prohibition on subletting
surfaced: the nonpayment of stall rental fees. She pointed out that petitioners
admitted this violation when they exhibited during a hearing the receipt of payment
of rentals in arrears for over 17 months. Bandrang quoted Section 7B.06 (a) of
Municipal Ordinance No. 164, Series of 1994, which stated that failure to pay the
rental fee for three consecutive months shall cause automatic cancellation of the
contract of lease of space or stall. She then concluded that this section left Mayor
Dickson with no choice but to comply.23
RTC Ruling
In its Resolution dated January 28, 2008, the RTC granted the
petition.1âwphi1 Thus:
"WHEREFORE, in view of all the foregoing, let a Writ of Mandamus to issue
ordering the Municipal Mayor of Solano to implement Nos. 9 and 11 of the
provisions of the Contract of lease of stall between the Municipal Government of
Solano and private respondents Rodolfo and Willie Laygo.
The Municipal Mayor of Solano, Hon. Philip A. Dacayo, is hereby ordered as it is his
duty to enforce [Sangguniang Bayan] Resolution Nos. 183-2004 and [135]-2007
immediately and without further delay.
SO ORDERED."24
The RTC held that the contract between petitioners and the Municipal Government
was a lease contract, as evidenced by a certification signed by Mayor Epifanio LD.
Galima (Mayor Galima) dated September 17, 2006.25 The RTC brushed aside the
non-presentation of the written contract of lease, noting that public policy and public
interest must prevail. The RTC also held that even on the assumption that there was
a BOT agreement between petitioners and the Municipal Government, petitioners
had already been compensated for it, as evidenced by certifications of the Municipal
Government dated August 28, 2006 and September 1 7, 2006. 26 As regards the
non-payment of stall rentals, the RTC ruled that petitioners deemed to have
admitted the allegation when they exhibited to the court the receipt of payment of
rentals in arrears.27
The RTC, thus, concluded that petitioners clearly violated the terms and conditions
of the lease contract, which gave rise to the enactment of Resolution No. 183-
2004.1âwphi1 Since Mayor Dickson failed in his duty to enforce the resolution and
delayed its implementation without valid reason, man amus is a proper remedy. 28
Petitioners appealed to the CA, while then incumbent Mayor Dacayo filed a
manifestation expressing his willingness to implement Resolutions No. 183-2004
and 135-2007.29
Court of Appeals Ruling
On December 16, 2008, the CA rendered the now assailed Decision 30 dismissing
the appeal and sustaining the resolution of the RTC.
The CA affirmed the finding of the RTC that the contract between petitioners and
the Municipal Government is a lease contract and, thus, Resolution No. 183-2004
applies to them.31
On the issue of whether mandamus is proper, the CA also affirmed the ruling of the
RTC stating that although mandamus is properly availed of to compel a ministerial
duty, it is also available to compel action in matters involving judgment and
discretion but not to direct an action in a particular way, to wit:
x x x However, mandamus is available to compel action, when refused, in
matters involving judgment
and discretion, though not to direct the exercise of judgment or discretion in a
particular way or the retraction or reversal of an action already taken in the exercise
of either.
In the case at bar, the Sangguniang Bayan of Solano ("Sanggunian") delegated to
Mayor Dickson and subsequently to incumbent Mayor Dacayo, the power tocancel
the lease contracts of those market stallholderswho violated their contracts
with the Municipality. Inferred from this power is the power of the Mayor to
determine who among the market stallholders violated their lease contracts with the
Municipality. Such power connotes an exercise of discretion.
When then Mayor Dickson refused to exercise this discretion, even after
the Sanggunian assured him that the subject resolution empowered him to have the
lease contracts of the Laygos cancelled, said act of refusal became proper subject
of mandamus, as it involved a duty expected of him to be performed. So with the
incumbent Mayor, the Hon. Philip Dacayo, as was ordered by the Court below. 32
Willie Laygo filed a Motion for Reconsideration dated January 20, 2009, which was
denied by the CA in a Resolution33 dated June 19, 2009.
Hence, this petition, which raised the following questions:
1.May the Sangguniang Bayan Resolution No. 183-2004 be applied against
petitioners despite the absence of a contract of lease between them and the
Municipal Government of Solano, Nueva Vizcaya?
2. May the Sangguniang Bayan Resolution No. 183-2004 be enforced by anybody
else, except Mayor Dickson?
Petitioners reiterate their position that Resolution No. 183-2004 cannot be enforced
against them because there was no contract of lease between them and the
Municipal Government and therefore, there cannot be any occasion for petitioner to
violate any provision.
Moreover, petitioners argue that the resolution can only be enforced by Mayor
Dickson because it specified Mayor Dickson and no other. Consequently, since
Mayor Dickson is no longer in office, he cannot now enforce Resolution No. 183-
2004.34
The Municipal Government, through the Provincial Legal Officer of Nueva Vizcaya,
stated in its Comment35 that the policy against subleasing was bolstered by the
enactment of the Sanggunian of another resolution, Resolution No. 135-2007, with
the same purpose, but authorizing then Mayor Dacayo to implement the No. 9 and
No. 11 provisions. in the contract of lease.36
Our Ruling
We grant the petition.
There is preponderant evidence
that the contract between
petitioners and the Municipal
Government is one of lease.
The type of contract existing between petitioners and the Municipal Government is
disputed. The Municipal Government asserts that it is one of lease, while petitioners
insist that it is a BOT agreement. Both parties, however, failed to present the
contracts which they purport to have. It is likewise uncertain whether the contract
would fall under the coverage of the Statute of Frauds and would, thus, be only
proven through written evidence. In spite of these, we find that the Municipal
Government was able to prove its claim, through secondary evidence, that its
contract with petitioners was one of lease.
We have no reason to doubt the certifications of the former mayor of Solano, Mayor
Galima, and the Municipal Planning and Development Office (MPD0)37 which show
that the contract of the Municipal Government with petitioners' mother, Clarita, was
converted into a BOT agreement for a time in 1992 due to the fire that razed the
public market. These certifications were presented and offered in evidence by
petitioners themselves. They prove that Clarita was allowed to construct her stalls
that were destroyed using her own funds, and with the payment of the lease rentals
being suspended until she recovers the cost she spent on the construction. The
construction was, in fact, supervised by the MPDO for a period of three months. The
stalls were eventually constructed completely and awarded to Clarita. She thereafter
reoccupied the stalls under a lease contract with the Municipal Government. In fact,
in his Notice dated August 21, 2007, the Municipal Treasurer of Solano reminded
petitioners of their delinquent stall rentals from May 2006 to July 2007. 38 As
correctly posited by the Municipal Government, if the stalls were under a BOT
scheme, the Municipal Treasurer could not have assessed petitioners of any
delinquency.39
Also, petitioners themselves raised, for the sake of argument, that even if the
contract may be conceded as one of lease, the municipality is nonetheless
estopped from canceling the lease contract because it subsequently accepted
payment of rentals until the time of the filing of the case. 40
In the same vein, the Sangguniang Bayan Resolution No. 183-2004, which quoted
Items No. 9 and 11 of the lease contract on the absolute prohibition against
subleasing and the possible termination of the contract in view of back rentals or
any violation of the stipulations in the contract, is presumed to have been regularly
issued. It deserves weight and our respect, absent a showing of grave abuse of
discretion on the part of the members of the Sanggunian.
Mandamus, however, is not
proper.
Mandamus is a command issuing from a court of competent jurisdiction, in the
name of the state or the sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the performance of a particular
duty therein specified, which duty results from the official station of the party to
whom the writ is directed or from operation of law. 41 As a rule, mandamus will not lie
in the absence of any of the following grounds: [a] that the court, officer, board, or
person against whom the action is taken unlawfully neglected the performance of an
act which the law specifically enjoins as a duty resulting from office, trust, or station;
or [b] that such court, officer, board, or person bas unlawfully excluded
petitioner/relator from the use and enjoyment of a right or office to which he is
entitled.42 Neither will the extraordinary remedy of mandamus lie to compel the
performance of duties that are discretionary in nature. 43 In Roble Arrastre, Inc. v.
Villaflor,44we explained the difference between the exercise of ministerial and
discretionary powers, to wit:
"Discretion," when applied to public functionaries, means a power or right conferred
upon them by law or
acting officially, under certain circumstances, uncontrolled by the judgment or
conscience of others. A purely ministerial act or duty in contradiction to a
discretional act is one which an officer or tribunal performs in a given state of facts,
in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of
the act done. If the law imposes a duty upon a public officer and gives him the right
to decide how or when the duty shall be performed, such duty is discretionary and
not ministerial. The duty is ministerial only when the discharge of the same requires
neither the exercise of official discretion or judgment.45(Citation omitted.)
Applying the foregoing distinction, we find that the Petition for Mandamus must fail
because the acts sought to be done are discretionary in nature.
The petition sought an order to direct Mayor Dickson to cancel the lease contract of
petitioners with the Municipal Government and to lease the vacated market stalls to
interested persons. We have already settled in the early case of Aprueba v.
Ganzon46that the privilege of operating a market stall under license is always
subject to the police power of the city government and may be refused or granted
for reasons of puplic policy and sound public administration. 47 Being a delegated
police power falling under the general welfare clause of Section 16 of the Local
Government Code, the grant or revocation of the privilege is, therefore,
discretionary in nature.48
Moreover, Resolution No. 183-2004, or even its subsequent equivalent, Resolution
No. 135-2007, merely authorizes the mayor "to enforce the No. 11 provision of the
contract of lease of market stalls between the Municipal Government and the
stallholders at the Solano [P]ublic Market who violated the No. 9 provision of said
contract x x x."49 Item No. 11 provides that "[i]f any back rental remains unpaid for
more than [15] days or if any violation be made of any of the stipulations of this
lease by the LESSEE, the LESSOR may declare this lease terminated and,
thereafter, reenter the leased premises and repossess the same, and expel the
LESSEE or others claiming under him/her from the leased premises." 50 Clearly,
Item No. 11 does not give the mayor a mandate to motu propio or automatically
terminate or cancel the lease with a lessee who is delinquent in the payment of
rentals or who is in violation of any of the provisions of the contract. This is apparent
from the permissive word "may" used in the provision. It does not specifically enjoin
the mayor to cancel the lease as a matter of "duty." Where the words of a statute
are clear, plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation.51
We do not discount, however, our ruling in previous cases where we cited
exceptions to the rule that only a ministerial duty can be compelled by a writ
of mandamus. In Republic v. Capulong, 52 we held that as a general rule, a writ
of mandamus will not issue to control or review the exercise of discretion of a public
officer since it is his judgment that is to be exercised and not that of the
court.53 Courts will not interfere to modify, control or inquire into the exercise of this
discretion unless it be alleged and proven that there has been an abuse or an
excess of authority on the part of the officer concerned. 54
In Angchango, Jr. v. Ombudsman, 55 we also held that in the performance of an
official duty or act involving discretion, the corresponding official can only be
directed by mandamus to act, but not to act one way or the other. However, this rule
admits of exceptions such as in cases where there is gross abuse of discretion,
manifest injustice, or palpable excess of authority. 56 These exceptions do not apply
in this case.
Firstly, while Mayor Dickson may be compelled to act on the directive provided in
Resolution No. 135-2007, he may not be compelled to do so in a certain way, as
what was prayed for by Bandrang in seeking the cancellation of the contract and to
re-lease the vacated market stalls to interested persons. It was enough that Mayor
Dickson be reminded of his authority to cancel the contract under Item No. 11, but
whether or not his decision would be for or against Bandrang would be for Mayor
Dickson alone to decide. Not even the Court can substitute its own judgment over Appeals in CA-G.R. SP No. 103922, and the Resolutiondated January 28, 2008 of
what he had chosen. the Regional Trial Court of Bayombong, NuevaVizcaya are REVERSED and SET
ASIDE. The Petition for Mandamusagainst Mayor Santiago O. Dickson
As it was, Mayor Dickson did act on the matter before him. He exercised his is DISMISSED.
discretion by choosing not to cancel the contract on the ground of pari
delicto, explaining that Bandrang, as the sub-lessee herself, was in violation of the SO ORDERED.
same policy on subleasing. The complaint does not allege that in deciding this way,
Mayor Dickson committed grave abuse of discretion, manifest injustice, or palpable
excess of authority. Neither did Bandrang present proof that Mayor Dickson acted
arbitrarily, wantonly, fraudulently, and against the interest of the public when he
chose not to cancel the lease contract of petitioners. 57

Further, aside from the imperative duty of the respondent in a petition

for mandamus to perform that which is demanded of him, it is essential that, on the
one hand, the person petitioning for it has a clear legal right to the claim that is
sought.58 To be given due course, a petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation,
board or person which unlawfully excludes said party from the enjoyment of a legal
right. The petitioner in every case must therefore be an aggrieved party, in the
sense that he possesses a clear right to be enforced and a direct interest in the duty
or act to be performed. The Court will exercise its power of judicial review only if the
case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the government act that is being challenged. 59 Does Bandrang have such
legal standing to institute the petition? We answer in the negative.

Following our ruling in the early case of Almario v. City Mayor, et al., 60 where we
ruled that the petitioner seeking to compel the city mayor toeject occupants of stalls
in the public market had no locus standi to file thepetition for mandamus, we also
arrive here with the same conclusion.Similarly with Almario, Bandrang is not an
applicant for any stall in thepublic market which is the subject of the controversy.
She is neither arepresentative of any such applicant, stall holder, or any association
of persons who are deprived of their right to occupy a stall in said market. As we
have deduced in Almario:

x x x Verily, he is not the real party in interest who has the capacity, right or
personality to institute the present action. As this Court has well said in an
analogous case, "the petitioner does not have any special or individual interest in
the subject matter of the action which would enable us to say that he is entitled to
the writ as a matter of right. His interest is only that a citizen at largecoupled with the
fact that in his capacity a[ s] president of the Association of Engineers it is his duty
to safeguard the interests of the members of his association." 61 (Italics in the
original, citation omitted.)

WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision

dated December 16, 2008 and Resolution dated June 19, 2009of the Court of
THIRD DIVISION pay. According to the Ombudsman, petitioner's acceptance of
respondent's payment created a perception that petitioner is a fixer. Her
[G.R. No. 178454, March 28 : 2011] act fell short of the standard of personal conduct required by Section
4(b) of R.A. No. 6713 that public officials shall endeavor to discourage
FILIPINA SAMSON, PETITIONER, VS. JULIA A. RESTRIVERA, wrong perceptions of their roles as dispensers or peddlers of undue
RESPONDENT. patronage. The Ombudsman held:

DECISION x x x [petitioner] admitted x x x that she indeed received the amount of

P50,000.00 from the [respondent] and even contracted Engr. Liberato
VILLARAMA, JR., J.: Patromo, alleged Licensed Geodetic Engineer to do the surveys.

Petitioner Filipina Samson appeals the Decision[1] dated October 31, 2006 While it may be true that [petitioner] did not actually deal with the other
of the Court of Appeals (CA) in CA-G.R. SP No. 83422 and its government agencies for the processing of the titles of the subject
Resolution[2] dated June 8, 2007, denying her motion for property, we believe, however, that her mere act in accepting the money
reconsideration. The CA affirmed the Ombudsman in finding petitioner from the [respondent] with the assurance that she would work for the
guilty of violating Section 4(b)[3] of Republic Act (R.A.) No. 6713, issuance of the title is already enough to create a perception that she is a
otherwise known as the Code of Conduct and Ethical Standards for Public fixer. Section 4(b) of [R.A.] No. 6713 mandates that public officials and
Officials and Employees. employees shall endeavor to discourage wrong perception of their
roles as dispenser or peddler of undue patronage.
The facts are as follows:
x x x x
Petitioner is a government employee, being a department head of the
Population Commission with office at the Provincial Capitol, Trece x x x [petitioner's] act to x x x restore the amount of [P50,000] was to
Martirez City, Cavite. avoid possible sanctions.

Sometime in March 2001, petitioner agreed to help her friend,
respondent Julia A. Restrivera, to have the latter's land located in
Carmona, Cavite, registered under the Torrens System. Petitioner said
that the expenses would reach P150,000 and accepted P50,000 from
respondent to cover the initial expenses for the titling of respondent's
land. However, petitioner failed to accomplish her task because it was
found out that the land is government property. When petitioner failed
to return the P50,000, respondent sued her for estafa. Respondent also
filed an administrative complaint for grave misconduct or conduct
unbecoming a public officer against petitioner before the Office of the
Ombudsman.
The Ombudsman found petitioner guilty of violating Section 4(b) of R.A.
No. 6713 and suspended her from office for six months without pay. The
Ombudsman ruled that petitioner failed to abide by the standard set in
Section 4(b) of R.A. No. 6713 and deprived the government of the
benefit of committed service when she embarked on her private interest
to help respondent secure a certificate of title over the latter's land. [4]
Upon motion for reconsideration, the Ombudsman, in an Order[5] dated
March 15, 2004, reduced the penalty to three months suspension without
x x x [d]uring the conciliation proceedings held on 19 October 2002 at
the barangay level, it was agreed upon by both parties that [petitioner]
be given until 28 February 2003 within which to pay the amount of
P50,000.00 including interest. If it was true that [petitioner] had
available money to pay and had been persistent in returning the amount
of [P50,000.00] to the [respondent], she would have easily given the
same right at that moment (on 19 October 2002) in the presence of the
Barangay Officials.[6] x x x. (Stress in the original.)
The CA on appeal affirmed the Ombudsman's Order dated March 19,
2004. The CA ruled that contrary to petitioner's contentions, the
Ombudsman has jurisdiction even if the act complained of is a private
matter. The CA also ruled that petitioner violated the norms of conduct
required of her as a public officer when she demanded and received the
amount of P50,000 on the representation that she can secure a title to
respondent's property and for failing to return the amount. The CA
stressed that Section 4(b) of R.A. No. 6713 requires petitioner to perform
and discharge her duties with the highest degree of excellence,
professionalism, intelligence and skill, and to endeavor to discourage
wrong perceptions of her role as a dispenser and peddler of undue
patronage.[7]

Hence, this petition which raises the following issues:
1. Does the Ombudsman have jurisdiction over a case involving a
private dealing by a government employee or where the act
complained of is not related to the performance of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner
administratively liable despite the dismissal of the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a
lower penalty in view of mitigating circumstances?[8]
Petitioner insists that where the act complained of is not related to the
performance of official duty, the Ombudsman has no
jurisdiction. Petitioner also imputes grave abuse of discretion on the part
of the CA for holding her administratively liable. She points out that
the estafa case was dismissed upon a finding that she was not guilty of
fraud or deceit, hence misconduct cannot be attributed to her. And even
assuming that she is guilty of misconduct, she is entitled to the benefit of
mitigating circumstances such as the fact that this is the first charge
against her in her long years of public service.[9]
Respondent counters that the issues raised in the instant petition are the
same issues that the CA correctly resolved.[10] She also alleges that
petitioner failed to observe the mandate that public office is a public trust
when she meddled in an affair that belongs to another agency and
received an amount for undelivered work.[11]
We affirm the CA and Ombudsman that petitioner is administratively
liable. We hasten to add, however, that petitioner is guilty of conduct
unbecoming a public officer.
On the first issue, we agree with the CA that the Ombudsman has
jurisdiction over respondent's complaint against petitioner although the
act complained of involves a private deal between them.[12] Section
13(1),[13] Article XI of the 1987 Constitution states that the Ombudsman
can investigate on its own or on complaint by any person any act or
omission of any public official or employee when such act or omission
appears to be illegal, unjust, or improper. Under Section 16[14] of R.A.
No. 6770, otherwise known as the Ombudsman Act of 1989, the
jurisdiction of the Ombudsman encompasses all kinds of malfeasance,
misfeasance, and nonfeasance committed by any public officer or
employee during his/her tenure. Section 19[15] of R.A. No. 6770 also
states that the Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which are unfair or irregular. Thus, even if
the complaint concerns an act of the public official or employee which is
not service-connected, the case is within the jurisdiction of the
Ombudsman. The law does not qualify the nature of the illegal act or
omission of the public official or employee that the Ombudsman may
investigate. It does not require that the act or omission be related to or
be connected with or arise from the performance of official duty. Since
the law does not distinguish, neither should we.[16]
On the second issue, it is wrong for petitioner to say that since
the estafa case against her was dismissed, she cannot be found
administratively liable. It is settled that administrative cases may
proceed independently of criminal proceedings, and may continue despite
the dismissal of the criminal charges.[17]
For proper consideration instead is petitioner's liability under Sec.
4(A)(b) of R.A. No. 6713.
We quote the full text of Section 4 of R.A. No. 6713:
SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every
public official and employee shall observe the following as standards of
personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest. - Public officials and employees shall
always uphold the public interest over and above personal interest. All
government resources and powers of their respective offices must be
employed and used efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and
discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill. They shall enter public service
with utmost devotion and dedication to duty. They shall endeavor to
discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.
(c) Justness and sincerity. - Public officials and employees shall remain
true to the people at all times. They must act with justness and sincerity
and shall not discriminate against anyone, especially the poor and the
underprivileged. They shall at all times respect the rights of others, and
shall refrain from doing acts contrary to law, good morals, good customs,
public policy, public order, public safety and public interest. They shall
not dispense or extend undue favors on account of their office to their
relatives whether by consanguinity or affinity except with respect to
appointments of such relatives to positions considered strictly
confidential or as members of their personal staff whose terms are
coterminous with theirs.
(d) Political neutrality. - Public officials and employees shall provide
service to everyone without unfair discrimination and regardless of party
affiliation or preference.
(e) Responsiveness to the public. - Public officials and employees shall
extend prompt, courteous, and adequate service to the public. Unless
otherwise provided by law or when required by the public interest, public
officials and employees shall provide information on their policies and
procedures in clear and understandable language, ensure openness of
information, public consultations and hearings whenever appropriate,
encourage suggestions, simplify and systematize policy, rules and
procedures, avoid red tape and develop an understanding and
appreciation of the socioeconomic conditions prevailing in the country,
especially in the depressed rural and urban areas.
(f) Nationalism and patriotism. - Public officials and employees shall at all
times be loyal to the Republic and to the Filipino people, promote the use
of locally-produced goods, resources and technology and encourage
appreciation and pride of country and people. They shall endeavor to
maintain and defend Philippine sovereignty against foreign intrusion.
(g) Commitment to democracy. - Public officials and employees shall
commit themselves to the democratic way of life and values, maintain
the principle of public accountability, and manifest by deed the
supremacy of civilian authority over the military. They shall at all times
uphold the Constitution and put loyalty to country above loyalty to
persons or party.
(h) Simple living. - Public officials and employees and their families shall
lead modest lives appropriate to their positions and income. They shall
not indulge in extravagant or ostentatious display of wealth in any form.
(B) The Civil Service Commission shall adopt positive measures to
promote (1) observance of these standards including the dissemination
of information programs and workshops authorizing merit increases
beyond regular progression steps, to a limited number of employees
recognized by their office colleagues to be outstanding in their
observance of ethical standards; and (2) continuing research and
experimentation on measures which provide positive motivation to public
officials and employees in raising the general level of observance of these
standards.
Both the Ombudsman and CA found the petitioner administratively liable
for violating Section 4(A)(b) on professionalism. "Professionalism" is
defined as the conduct, aims, or qualities that characterize or mark a
profession. A professional refers to a person who engages in an activity
with great competence. Indeed, to call a person a professional is to
describe him as competent, efficient, experienced, proficient or
polished.[18] In the context of Section 4 (A)(b) of R.A. No. 6713, the
observance of professionalism also means upholding the integrity of
public office by endeavoring "to discourage wrong perception of their
roles as dispensers or peddlers of undue patronage." Thus, a public
official or employee should avoid any appearance of impropriety affecting
the integrity of government services. However, it should be noted that
Section 4(A) enumerates the standards of personal conduct for public
officers with reference to "execution of official duties."
In the case at bar, the Ombudsman concluded that petitioner failed to
carry out the standard of professionalism by devoting herself on her
personal interest to the detriment of her solemn public duty. The
Ombudsman said that petitioner's act deprived the government of her
committed service because the generation of a certificate of title was not
within her line of public service. In denying petitioner's motion for
reconsideration, the Ombudsman said that it would have been sufficient
if petitioner just referred the respondent to the persons/officials incharge
of the processing of the documents for the issuance of a certificate of
title. While it may be true that she did not actually deal with the other
government agencies for the processing of the titles of the subject
property, petitioner's act of accepting the money from respondent with
the assurance that she would work for the issuance of the title is already
enough to create a perception that she is a fixer.
On its part, the CA rejected petitioner's argument that an isolated act is
insufficient to create those "wrong perceptions" or the "impression of
influence peddling." It held that the law enjoins public officers, at all
times to respect the rights of others and refrain from doing acts contrary
to law, good customs, public order, public policy, public safety and public
interest. Thus, it is not the plurality of the acts that is being punished
but the commission of the act itself.
Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A.
No. 6713 as broad enough to apply even to private transactions that
have no connection to the duties of one's office. We hold, however, that
petitioner may not be penalized for violation of Section 4 (A)(b) of R.A.
No. 6713. The reason though does not lie in the fact that the act
complained of is not at all related to petitioner's discharge of her duties
as department head of the Population Commission.
 administrative disciplinary action, and without prejudice to criminal and
In addition to its directive under Section 4(B), Congress civil liabilities provided herein, such as:
authorized[19] the Civil Service Commission (CSC) to promulgate the
rules and regulations necessary to implement R.A. No. 6713. (a) Directly or indirectly having financial and material interest in any
Accordingly, the CSC issued the Rules Implementing the Code of Conduct transaction requiring the approval of his office. x x x.
and Ethical Standards for Public Officials and Employees (hereafter,
Implementing Rules). Rule V of the Implementing Rules provides for an (b) Owning, controlling, managing or accepting employment as officer,
Incentive and Rewards System for public officials and employees who employee, consultant, counsel, broker, agent, trustee, or nominee in any
have demonstrated exemplary service and conduct on the basis of their private enterprise regulated, supervised or licensed by his office, unless
observance of the norms of conduct laid down in Section 4 of R.A. No. expressly allowed by law;
6713, to wit:
(c) Engaging in the private practice of his profession unless authorized by
RULE V. INCENTIVES AND REWARDS SYSTEM the Constitution, law or regulation, provided that such practice will not
conflict or tend to conflict with his official functions;
SECTION 1. Incentives and rewards shall be granted officials and
employees who have demonstrated exemplary service and conduct on (d) Recommending any person to any position in a private enterprise
the basis of their observance of the norms of conduct laid down in which has a regular or pending official transaction with his office, unless
Section 4 of the Code, namely: such recommendation or referral is mandated by (1) law, or (2)
international agreements, commitment and obligation, or as part of the
(a) Commitment to public interest. - x x x functions of his office;

(b) Professionalism. - x x x x x x x

(c) Justness and sincerity. - x x x (e) Disclosing or misusing confidential or classified information officially
known to him by reason of his office and not made available to the
(d) Political neutrality. - x x x public, to further his private interests or give undue advantage to
anyone, or to prejudice the public interest;
(e) Responsiveness to the public. - x x x
(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor,
(f) Nationalism and patriotism. - x x x entertainment, loan or anything of monetary value which in the course of
his official duties or in connection with any operation being regulated by,
(g) Commitment to democracy. - x x x or any transaction which may be affected by the functions of, his office. x
x x.
(h) Simple living. - x x x
x x x x
On the other hand, Rule X of the Implementing Rules enumerates
grounds for administrative disciplinary action, as follows: (g) Obtaining or using any statement filed under the Code for any
purpose contrary to morals or public policy or any commercial purpose
RULE X. GROUNDS FOR ADMINISTRATIVE other than by news and communications media for dissemination to the
DISCIPLINARY ACTION general public;

SECTION 1. In addition to the grounds for administrative disciplinary (h) Unfair discrimination in rendering public service due to party
action prescribed under existing laws, the acts and omissions of any affiliation or preference;
official or employee, whether or not he holds office or employment in a
casual, temporary, hold-over, permanent or regular capacity, declared (i) Disloyalty to the Republic of the Philippines and to the Filipino people;
unlawful or prohibited by the Code, shall constitute grounds for
(j) Failure to act promptly on letters and request within fifteen (15) days sanctioned for failure to observe these norms of
from receipt, except as otherwise provided in these Rules; conduct. Indeed, Rule X of the Implementing Rules affirms as
grounds for administrative disciplinary action only acts "declared
(k) Failure to process documents and complete action on documents and unlawful or prohibited by the Code." Rule X specifically mentions
papers within a reasonable time from preparation thereof, except as at least twenty three (23) acts or omissions as grounds for
otherwise provided in these Rules; administrative disciplinary action. Failure to abide by the norms
of conduct under Section 4(b) of R.A. No. 6713 is not one of
(l) Failure to attend to anyone who wants to avail himself of the services them.(Emphasis supplied.)
of the office, or to act promptly and expeditiously on public personal
transactions; Consequently, the Court dismissed the charge of violation of Section
4(A)(b) of R.A. No. 6713 in that case.
(m) Failure to file sworn statements of assets, liabilities and net worth,
and disclosure of business interests and financial connections; and We find no compelling reason to depart from our pronouncement
in Domingo. Thus, we reverse the CA and Ombudsman that petitioner is
(n) Failure to resign from his position in the private business enterprise administratively liable under Section 4(A)(b) of R.A. No. 6713. In so
within thirty (30) days from assumption of public office when conflict of ruling, we do no less and no more than apply the law and its
interest arises, and/or failure to divest himself of his shareholdings or implementing rules issued by the CSC under the authority given to it by
interests in private business enterprise within sixty (60) days from such Congress. Needless to stress, said rules partake the nature of a statute
assumption of public office when conflict of interest arises: Provided, and are binding as if written in the law itself. They have the force and
however, that for those who are already in the service and a conflict of effect of law and enjoy the presumption of constitutionality and legality
interest arises, the official or employee must either resign or divest until they are set aside with finality in an appropriate case by a
himself of said interests within the periods herein-above provided, competent court.[21]
reckoned from the date when the conflict of interest had arisen.
But is petitioner nonetheless guilty of grave misconduct, which is a
In Domingo v. Office of the Ombudsman,[20] this Court had the occasion ground for disciplinary action under R.A. No. 6713?
to rule that failure to abide by the norms of conduct under Section
4(A)(b) of R.A. No. 6713, in relation to its implementing rules, is not a We also rule in the negative.
ground for disciplinary action, to wit:
Misconduct is a transgression of some established and definite rule of
The charge of violation of Section 4(b) of R.A. No. 6713 deserves further action, more particularly, unlawful behavior or gross negligence by a
comment. The provision commands that "public officials and employees public officer. The misconduct is grave if it involves any of the additional
shall perform and discharge their duties with the highest degree of elements of corruption, willful intent to violate the law or to disregard
excellence, professionalism, intelligence and skill." Said provision merely established rules, which must be proved by substantial
enunciates "professionalism as an ideal norm of conduct to be observed evidence. Otherwise, the misconduct is only simple.[22] Conversely, one
by public servants, in addition to commitment to public interest, justness cannot be found guilty of misconduct in the absence of substantial
and sincerity, political neutrality, responsiveness to the public, evidence. In one case, we affirmed a finding of grave misconduct
nationalism and patriotism, commitment to democracy and simple living. because there was substantial evidence of voluntary disregard of
Following this perspective, Rule V of the Implementing Rules of R.A. No. established rules in the procurement of supplies as well as of manifest
6713 adopted by the Civil Service Commission mandates the grant of intent to disregard said rules.[23] We have also ruled that complicity in
incentives and rewards to officials and employees who demonstrate the transgression of a regulation of the Bureau of Internal Revenue
exemplary service and conduct based on their observance of the norms constitutes simple misconduct only as there was failure to establish
of conduct laid down in Section 4. In other words, under the mandated flagrancy in respondent's act for her to be held liable of gross
incentives and rewards system, officials and employees who comply with misconduct.[24] On the other hand, we have likewise dismissed a
the high standard set by law would be rewarded. Those who fail to do so complaint for knowingly rendering an unjust order, gross ignorance of
cannot expect the same favorable treatment. However, the the law, and grave misconduct, since the complainant did not even
Implementing Rules does not provide that they will have to be indicate the particular acts of the judge which were allegedly violative of
the Code of Judicial Conduct.[25]
In this case, respondent failed to prove (1) petitioner's violation of an
established and definite rule of action or unlawful behavior or gross
negligence, and (2) any of the aggravating elements of corruption, willful
intent to violate a law or to disregard established rules on the part of
petitioner. In fact, respondent could merely point to petitioner's alleged
failure to observe the mandate that public office is a public trust when
petitioner allegedly meddled in an affair that belongs to another agency
and received an amount for undelivered work.
True, public officers and employees must be guided by the principle
enshrined in the Constitution that public office is a public
trust. However, respondent's allegation that petitioner meddled in an
affair that belongs to another agency is a serious but unproven
accusation. Respondent did not even say what acts of interference were
done by petitioner. Neither did respondent say in which government
agency petitioner committed interference. And causing the survey of
respondent's land can hardly be considered as meddling in the affairs of
another government agency by petitioner who is connected with the
Population Commission. It does not show that petitioner made an illegal
deal or any deal with any government agency. Even the Ombudsman
has recognized this fact. The survey shows only that petitioner
contracted a surveyor. Respondent said nothing on the propriety or
legality of what petitioner did. The survey shows that petitioner also
started to work on her task under their agreement. Thus, respondent's
allegation that petitioner received an amount for undelivered work is not
entirely correct. Rather, petitioner failed to fully accomplish her task in
view of the legal obstacle that the land is government property.
However, the foregoing does not mean that petitioner is absolved of any
administrative liability.
But first, we need to modify the CA finding that petitioner demanded the
amount of P50,000 from respondent because respondent did not even
say that petitioner demanded money from her.[26] We find in the
allegations and counter-allegations that respondent came to petitioner's
house in Biñan, Laguna, and asked petitioner if she can help
respondent secure a title to her land which she intends to sell. Petitioner
agreed to help. When respondent asked about the cost, petitioner said
P150,000 and accepted P50,000 from respondent to cover the initial
expenses.[27]
We agree with the common finding of the Ombudsman and the CA that,
in the aftermath of the aborted transaction, petitioner still failed to return
the amount she accepted. As aptly stated by the Ombudsman, if
petitioner was persistent in returning the amount of P50,000 until the
preliminary investigation of the estafa case on September 18,
2003,[28] there would have been no need for the parties' agreement that
petitioner be given until February 28, 2003 to pay said amount including
interest. Indeed, petitioner's belated attempt to return the amount was
intended to avoid possible sanctions and impelled solely by the filing of
the estafa case against her.
For reneging on her promise to return aforesaid amount, petitioner is
guilty of conduct unbecoming a public officer. In Joson v. Macapagal,
we have also ruled that the respondents therein were guilty of conduct
unbecoming of government employees when they reneged on their
promise to have pertinent documents notarized and submitted to the
Government Service Insurance System after the complainant's rights
over the subject property were transferred to the sister of one of the
respondents.[29] Recently, in Assistant Special Prosecutor III Rohermia J.
Jamsani-Rodriguez v. Justices Gregory S. Ong, et al., we said that
unbecoming conduct means improper performance and applies to a
broader range of transgressions of rules not only of social behavior but of
ethical practice or logical procedure or prescribed method. [30]
This Court has too often declared that any act that falls short of the
exacting standards for public office shall not be countenanced. [31] The
Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.[32]
Petitioner should have complied with her promise to return the amount to
respondent after failing to accomplish the task she had willingly
accepted. However, she waited until respondent sued her for estafa,
thus reinforcing the latter's suspicion that petitioner misappropriated her
money. Although the element of deceit was not proven in the criminal
case respondent filed against the petitioner, it is clear that by her
actuations, petitioner violated basic social and ethical norms in her
private dealings. Even if unrelated to her duties as a public officer,
petitioner's transgression could erode the public's trust in government
employees, moreso because she holds a high position in the service.
As to the penalty, we reprimanded the respondents in Joson and imposed
a fine in Jamsani-Rodriguez. Under the circumstances of this case, a fine
of P15,000 in lieu of the three months suspension is proper. In imposing
said fine, we have considered as a mitigating circumstance petitioner's
37 years of public service and the fact that this is the first charge against
her.[33] Section 53[34] of the Revised Uniform Rules on Administrative
Cases in the Civil Service provides that mitigating circumstances such as
length of service shall be considered. And since petitioner has earlier
agreed to return the amount of P50,000 including interest, we find it
proper to order her to comply with said agreement. Eventually, the
parties may even find time to rekindle their friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of

the Court of Appeals and its Resolution dated June 8, 2007 in CA-G.R. SP
No. 83422, as well as the Decision dated January 6, 2004 and Order
dated March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F,
and ENTER a new judgment as follows:

We find petitioner GUILTY of conduct unbecoming a public officer and

impose upon her a FINE of P15,000.00 to be paid at the Office of the
Ombudsman within five (5) days from finality of this Decision.

We also ORDER petitioner to return to respondent the amount of

P50,000.00 with interest thereon at 12% per annum from March 2001
until the said amount shall have been fully paid.

With costs against the petitioner.

SO ORDERED.
 Republic of the Philippines Pacheo questioned the reassignment through her Letter dated May 9,
Supreme Court 2002[4] addressed to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She
Manila complained that the transfer would mean economic dislocation since she would have to
spend ₱200.00 on daily travel expenses or approximately ₱4,000.00 a month. It would also
EN BANC
mean physical burden on her part as she would be compelled to wake up early in the
morning for her daily travel from Quezon City to San Fernando, Pampanga, and to return
REPUBLIC OF THE PHILIPPINES, represented G.R. No. 178021 home late at night from San Fernando, Pampanga to Quezon City. She was of the view that
by the CIVIL SERVICE COMMISSION, that her reassignment was merely intended to harass and force her out of the BIR in the guise
Petitioner, of exigencies of the revenue service. In sum, she considered her transfer from Quezon
City to Pampanga as amounting to a constructive dismissal.
- versus - Promulgated:
January 25, 2012
Due to the then inaction of the BIR, Pacheo filed a complaint[5] dated May 30,
MINERVA M.P. PACHEO, 2002, before the CSC- National Capital Region (CSC-NCR), praying for the nullification of
Respondent. RTAO No. 25-2002. In its July 22, 2002 Order,[6] the CSC-NCR treated Pacheos Complaint
as an appeal and dismissed the same, without prejudice, for failure to comply with Sections
x -------------------------------------------------------------------------------------------------------x 73 and 74 of Rule V(b) of the Uniform Rules on Administrative Cases in the Civil Service. [7]

DECISION In its Letter-reply[8] dated September 13, 2002, the BIR, through its Deputy
Commissioner for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied
Pacheos protest for lack of merit. It contended that her reassignment could not be considered
MENDOZA, J.: constructive dismissal as she maintained her position as Revenue Attorney IV and was
designated as Assistant Chief of Legal Division. It emphasized that her appointment to the
position of Revenue Attorney IV was without a specific station. Consequently, she could
Before this Court is a petition for review on certiorari under Rule 45 of the Rules properly be reassigned from one organizational unit to another within the BIR. Lastly, she
of Court filed by petitioner Republic of the Philippines, represented by the Office of the could not validly claim a vested right to any specific station, or a violation of her right to
Solicitor General (OSG), which assails the February 22, 2007 Decision [1] and the May 15, security of tenure.
2007 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA
reversed the November 21, 2005 Resolution of the Civil Service Not in conformity with the ruling of the BIR, Pacheo appealed her case before the
Commission (CSC) declaring the re-assignment of respondent Minerva M.P. CSC.
Pacheos (Pacheo) not valid and ordering her reinstatement to her original station but without
backwages under the principle of no work, no pay. On November 21, 2005, the CSC issued Resolution No. 051697[9] granting
Pacheos appeal, the dispositive portion of which reads:
The Facts
WHEREFORE, the instant appeal of Minerva M.P.
Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Pacheo is hereby GRANTED. The Bureau of Internal Revenue
Bureau of Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City. Revenue Travel Assignment Order No. 25-2002 dated May 7,
2002, on the reassignment of Pacheo to the Legal Division
On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. Revenue Region No. 4 San Fernanado, Pampanga, is hereby
25-2002,[3] ordering the reassignment of Pacheo as Assistant Chief, Legal Division from declared NOT VALID. ACCORDINGLY, Pacheo should now be
RR7 in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the recalled to her original station. This Commission, however rules
revenue service as basis for the issuance of the said RTAO. and so holds that the withholding by the BIR of Pacheos salary for
the period she did not report to work is justified.
 The CSCRO No. III is directed to monitor the
implementation of this Resolution.
In granting Pacheos appeal, the CSC explained:
On the second issue, this Commission finds merit in
appellants contention that her reassignment in not valid.
Of pertinent application thereto is Rule III, Section 6 of
CSC Memorandum Circular No. 40, series of 1998, dated December
14, 1998, which provides:
Section 6. Other Personnel
Movements. The following personnel
movements which will not require issuance of
an appointment shall nevertheless require an
office order by duly authorized official.
a. Reassignment Movement of an
employee from one organizational unit to
another in the same department or agency
which does not involve reduction in rank, status
or salary. If reassignment is done without
consent of the employee being reassigned it
shall be allowed for a maximum period of one
year. Reassignment is presumed to be regular
and made in the interest of public service unless
proven otherwise or it constitutes constructive
dismissal.
No assignment shall be undertaken if
done indiscriminately or whimsically because
the law is not intended as a convenient shield
for the appointing/ disciplining authority to
harass or oppress a subordinate on the pretext
of advancing and promoting public interest.
Reassignment of small salaried
employee is not permissible if it causes
significant financial dislocation.
Although reassignment is a management prerogative, the
same must be done in the exigency of the service without
diminution in rank, status and salary on the part of the officer or
employee being temporarily reassigned. Reassignment of small
salaried employees, however is not allowed if it will cause
significant financial dislocation to the employee reassigned.
Otherwise the Commission will have to intervene.
The primary purpose of emphasizing small salaried
employees in the foregoing rule is to protect the rank and
file employees from possible abuse by the management in the
guise of transfer/reassignment. The Supreme Court in Alzate v.
Mabutas, (51 O.G. 2452) ruled:
x x x [T]he protection against invalid
transfer is especially needed by lower ranking
employees. The Court emphasized this need
when it ruled that officials in the unclassified
service, presidential appointees, men in the
government set up occupy positions in the
higher echelon should be entitled to security of
tenure, unquestionable a lesser sol[ci]itude
cannot be meant for the little men, that great
mass of Common underprivileged employees-
thousand there are of them in the lower
bracket, who generally are without
connections and who pin their hopes of
advancement on the merit system instituted by
our civil service law.
In other words, in order to be embraced in the
term small-salaried employees, the latter must belong to the rank
and file; and, his/her salary would be significantly reduced by
virtue of the transfer/reassignment. Rank and file was categorized
as those occupying the position of Division Chief and below,
pursuant to CSC Resolution No. 1, series of 1991, dated January 28,
1991.
The facts established on record show that Pacheo
belongs to the rank and file receiving an average monthly salary of
Twenty Thousand Pesos (₱20,000.00) under the salary
standardization law and a monthly take home pay of Fourteen
Thousand Pesos (₱14,000.00). She has to spend around Four
Thousand Pesos (₱4,000.00) a month for her transportation
expenses as a consequence of her reassignment, roughly twenty
 eight percent (28%) of her monthly take home pay. Clearly,
Pacheos salary shall be significantly reduced as a result of her
reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:
Anore, a lowly salaried employee,
was reassigned to an isolated island 15
kilometers away from her original place of
assignment. She has to travel by boat with only
one trip a day to report to her new place of
assignment in an office without any facilities,
except its bare structure. Worst, the
municipality did not provide her with
transportation allowance. She was forced to be
separated from her family, look for a boarding
house where she can stay while in the island
and spend for her board and lodging. The
circumstances surrounding Anores
reassignment is exactly the kind of
reassignment that is being frowned upon by
law.
This Commission, however, rules and so holds that the
withholding by the BIR of her salaries is justified as she is not
entitled thereto since she is deemed not to have performed any
actual work in the government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her
original station without any right to claim back salary as she did
not report to work either at her new place of assignment or at her
original station.[10] [Emphases in the original]
Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC
erred in not finding that she was constructively dismissed and, therefore, entitled to back
salary.
On March 7, 2006, the CSC issued Resolution No. 060397 [11] denying Pacheos
motion for reconsideration.
Undaunted, Pacheo sought recourse before the CA via a petition for review.
In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled
in favor of Pacheo, the fallo of which states:
WHEREFORE, the petition is GRANTED. Resolution
nos. 051697 and 060397 dated November 21, 2005 and March 7,
2006, respectively, of the Civil Service Commission
are REVERSED and SET ASIDE. A new judgment is hereby
entered finding petitioner to have been constructively dismissed
and ordering her immediate reinstatement with full backwages
and benefits.
SO ORDERED.[12]
In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:
While this Court agrees that petitioners reassignment was not
valid considering that a diminution in salary is enough to
invalidate such reassignment, We cannot agree that the latter has
not been constructively dismissed as a result thereof.
It is well to remember that constructive dismissal does not always
involve forthright dismissal or diminution in rank, compensation,
benefits and privileges. For an act of clear discrimination,
insensibility, or disdain by an employer may become so
unbearable on the part of the employee that it could foreclose any
choice by him except to forgo his continued employment.
The management prerogative to transfer personnel must be
exercised without grave abuse of discretion and putting to mind
the basic elements of justice and fair play. The employer must be
able to show that the transfer is not unreasonable, inconvenient,
or prejudicial to the employee.
In this case, petitioners reassignment will result in the reduction
of her salary, not to mention the physical burden that she would
suffer in waking up early in the morning to travel daily
from Quezon City to San Fernando, Pampanga and in coming
home late at night.
Clearly, the insensibility of the employer is deducible from the
foregoing circumstances and petitioner may have no other choice
but to forego her continued employment.
Moreover, it would be inconsistent to hold that the reassignment
was not valid due to the significant reduction in petitioners salary
and then rule that there is no constructive dismissal just because
said reduction in salary will not render petitioner penniless if she
will report to her new place of assignment. It must be noted that
there is constructive dismissal when the reassignment of an
employee involves a diminution in pay.
Having determined that petitioner has been
constructively dismissed as a result of her reassignment, We shall
resolve whether or not she is entitled to backwages.
In denying petitioners claim for backwages, the CSC held:
This Commission, however, rules and so holds
that the withholding by the BIR of her salaries
is justified as she is not entitled thereto since
she is deemed not to have performed any actual
work in the government on the principle of no
work no pay.
Accordingly, Pacheo should now be reinstated
to her original station without any right to claim
back salary as she did not report for work either
at her new place of assignment or at her original
station.
Pacheo, while belonging to the rank-and-file
employees, is holding a responsible position as
an Assistant Division Chief, who could not just
abandon her duties merely because she
protested her re-assignment and filed an appeal
afterwards.
We do not agree.
If there is no work performed by the employee there can
be no wage or pay, unless of course the laborer was able, willing
and ready to work but was illegally locked out, dismissed or
suspended. The No work, no pay principle contemplates a no
work situation where the employees voluntarily absent
themselves.
In this case, petitioner was forced to forego her
continued employment and did not just abandon her duties. In
fact, she lost no time in protesting her reassignment as a form of
constructive dismissal. It is settled that the filing of a complaint
for illegal dismissal is inconsistent with a charge of
abandonment. The filing of the complaint is proof enough of his
desire to return to work, thus negating any suggestion of
abandonment.
Neither do we agree with the OSG when it opined that:
No one in the Civil Service should be allowed to
decide on whether she is going to accept or not
any work dictated upon by the exigency of the
service.One should consider that public office is
a public trust and that the act of respondent
CIR enjoys the presumption of regularity. To
uphold the failure of respondent to heed the
RTAO would result in chaos. Every employee
would put his or her vested interest or personal
opinion over and above the smooth functioning
of the bureaucracy.
Security of tenure is a right of paramount value as
recognized and guaranteed under Sec. 3, Art. XIII of the 1987
Constitution.
The State shall afford full protection to labor,
xxx and promote full employment and equality
of employment opportunities for all. It shall
guarantee the rights of all workers to xxx
security of tenure xxx
Such constitutional right should not be denied on mere
speculation of any similar unclear and nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court
rejected the OSGs opinion that when the transfer is motivated
solely by the interest of the service of such act cannot be
considered violative of the Constitution, thus:
We do not agree to this view. While
temporary transfers or assignments may be
made of the personnel of a bureau or
department without first obtaining the consent
of the employee concerned within the scope of
Section 79 (D) of the Administrative Code
which party provides that The Department
Head also may, from time to time, in the
interest of the service, change the distribution
among the several Bureaus and offices of his
Department of the employees or subordinates
authorized by law, such cannot be undertaken
when the transfer of the employee is with a view
to his removal. Such cannot be done without
the consent of the employee. And if the transfer
is resorted to as a scheme to lure the employee
away from his permanent position, such
attitude is improper as it would in effect result
in a circumvention of the prohibition which
safeguards the tenure of office of those who are
in the civil service. It is not without reason that
this Court made the following observation:
To permit circumvention of the constitutional
prohibition in question by allowing removal
from office without lawful cause, in the form or
guise of transfers from one office to another, or
from one province to another, without the
consent of the transferee, would blast the hopes
of these young civil service officials and career
men and women, destroy their security and
tenure of office and make for a subservient,
discontented and inefficient civil service force
that sways with every political wind that blows
and plays up to whatever political party is in the
saddle. That would be far from what the
framers of our Constitution contemplated and
desired. Neither would that be our concept of a
free and efficient Government force, possessed
of self-respect and reasonable ambition.
Clearly, the principle of no work, no pay does not apply
in this case. As held in Neeland v. Villanueva, Jr:
We also cannot deny back salaries and
other economic benefits on the ground that
respondent Clerk of Court did not work. For the
principle of no work, no pay does not apply
when the employee himself was forced out of
job. Xxx Indeed, it is not always true that back
salaries are paid only when work is done. Xxx
For another, the poor employee could offer no
work since he was forced out of work. Thus, to
always require complete exoneration or
performance of work would ultimately leave the
dismissal uncompensated no matter how
grossly disproportionate the penalty
was.Clearly, it does not serve justice to simply
restore the dismissed employee to his position
and deny him his claim for back salaries and
other economic benefits on these grounds. We
would otherwise be serving justice in halves.
An illegally dismissed government employee who is later
ordered reinstated is entitled to back wages and other monetary
benefits from the time of his illegal dismissal up to his
reinstatement. This is only fair and sensible because an employee
who is reinstated after having been illegally dismissed is
considered as not having left his office and should be given a
comparable compensation at the time of his reinstatement.
When a government official or employee in the classified
civil service had been illegally dismissed, and his reinstatement
had later been ordered, for all legal purposes he is considered as
not having left his office, so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held.[13]
The CSC moved for reconsideration but its motion was denied by the CA in its May 15,
2007 Resolution.
Hence, this petition.
THE ISSUES
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY
CORRECT IN DECLARING THAT RESPONDENT WAS
CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK
WAGES, NOTWITHSTANDING RESPONDENTS REFUSAL TO
COMPLY WITH BIR RTAO No. 25-2002 WHICH IS
IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F)
OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A
DIMINUTION IN HER SALARY IN RELATION TO SECTION 6,
RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES
OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE
ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER
REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO
BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.[14]
In her Memorandum,[15] Pacheo asserts that RTAO No. 25-2002, on the pretense of the
exigencies of the revenue service, was solely meant to harass her and force her to resign. As
a result of her invalid reassignment, she was constructively dismissed and, therefore, entitled
to her back salaries and monetary benefits from the time of her illegal dismissal up to her
reinstatement.
In its own Memorandum,[16] the CSC, through the OSG, argues that constructive dismissal is
not applicable in this case because it was Pacheo herself who adamantly refused to report for
work either in her original station or new place of assignment in clear violation of Section 24
(f) of Presidential Decree (PD) No. 807.[17] Citing jurisprudence,[18] the CSC avers that the
RTAO is immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo
should have first reported to her new place of assignment and then appealed her case to the
CSC if she indeed believed that there was no justification for her reassignment. Since
Pacheo did not report for work at all, she is not entitled to backwages following the principle
of no work, no pay.
THE COURTS RULING
The petition fails to persuade.
It appears undisputed that the reassignment of Pacheo was not valid. In its
memorandum, the OSG initially argues for the validity of RTAO No. 25-2002 authorizing
Pacheos reassignment from Quezon City to San Fernando, Pampanga. Later, however, it
specifically prays for the reinstatement of CSC Resolution Nos. 051697 and 060397, which
categorically declared RTAO No. 25-2002 as not valid. In seeking such relief, the OSG has
effectively accepted the finding of the CSC, as affirmed by the CA, that Pacheos
reassignment was indeed invalid. Since the issue of Pacheos reassignment is already settled,
the Court finds it futile to pass upon the same at this point.
The question that remains to be resolved is whether or not Pacheos assignment
constitutes constructive dismissal and, thus, entitling her to reinstatement and backwages.
Was Pacheo constructively dismissed by reason of her reassignment?
The Court agrees with the CA on this point.
While a temporary transfer or assignment of personnel is permissible even without
the employee's prior consent, it cannot be done when the transfer is a preliminary step
toward his removal, or a scheme to lure him away from his permanent position, or when it is
designed to indirectly terminate his service, or force his resignation. Such a transfer would in
effect circumvent the provision which safeguards the tenure of office of those who are in the
Civil Service.[19]
Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of
1998, defines constructive dismissal as a situation when an employee quits his work because
of the agency heads unreasonable, humiliating, or demeaning actuations which render
continued work impossible. Hence, the employee is deemed to have been illegally
dismissed. This may occur although there is no diminution or reduction of salary of the
employee. It may be a transfer from one position of dignity to a more servile or menial job.
The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work
either in her original station in Quezon City or her new place of assignment in San Fernando,
Pampanga negates her claim of constructive dismissal in the present case being in violation
of Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A,
Chapter 5, Section 26 (6)].[20] It further argues that the subject RTAO was immediately
executory, unless otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to
have reported to her new place of assignment and then appealed her case to the CSC if she
indeed believed that there was no justification for her reassignment.

Anent the first argument of CSC, the Court cannot sustain the proposition. It was
legally impossible for Pacheo to report to her original place of assignment in Quezon
City considering that the subject RTAO No. 25-2002 also reassigned Amado Rey B.
Pagarigan (Pagarigan) as Assistant Chief, Legal Division, from RR4, San Fernando,
Pampanga to RR7, Quezon City, the very same position Pacheo formerly held. The
reassignment of Pagarigan to the same position palpably created an impediment to Pacheos
return to her original station.
The Court finds Itself unable to agree to CSCs argument that the subject RTAO
was immediately executory. The Court deems it necessary to distinguish between a detail
and reassignment, as they are governed by different rules.
A detail is defined and governed by Executive Order 292, Book V, Title 1,
Subtitle A, Chapter 5, Section 26 (6), thus:
the CSC, an order to detail is immediately executory, whereas a reassignment order does not
become immediately effective.
In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division
from Quezon City to San Fernando, Pampanga within the same agency is undeniably a
reassignment. The OSG posits that she should have first reported to her new place of
assignment and then subsequently question her reassignment. It is clear, however, from E.O.
292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first
report to the new place of assignment prior to questioning an alleged invalid reassignment
imposed upon an employee. Pacheo was well within her right not to report immediately to
RR4, San Fernando, Pampanga, and to question her reassignment.
Reassignments involving a reduction in rank, status or salary violate an employees
security of tenure, which is assured by the Constitution, the Administrative Code of 1987,
and the Omnibus Civil Service Rules and Regulations. Security of tenure covers not only
employees removed without cause, but also cases of unconsented transfers and
reassignments, which are tantamount to illegal/constructive removal. [21]

(6) Detail. A detail is the movement of an employee from one

agency to another without the issuance of an appointment and
The Court is not unaware that the BIR is authorized to assign or reassign internal revenue
shall be allowed, only for a limited period in the case of employees
officers and employees as the exigencies of service may require. This authority of the BIR,
occupying professional, technical and scientific positions. If the
however, should be prudently exercised in accordance with existing civil service rules.
employee believes that there is no justification for the detail, he
may appeal his case to the Commission. Pending appeal, the
decision to detail the employee shall be executory unless
otherwise ordered by the Commission. [Underscoring supplied] Having ruled that Pacheo was constructively dismissed, is she entitled to
reinstatement and back wages? The Court agrees with the CA that she is entitled to
reinstatement, but finds Itself unable to sustain the ruling that she is entitled to full back
wages and benefits. It is a settled jurisprudence[22] that an illegally dismissed civil service
On the other hand, a reassignment is defined and governed by E.O. 292, Book V,
employee is entitled to back salaries but limited only to a maximum period of five (5)
Title 1, Subtitle A, Chapter 5, Section 26 (7), thus:
years, and not full back salaries from his illegal dismissal up to his reinstatement.
(7) Reassignment.An employee may be reassigned from one
organizational unit to another in the same agency; Provided, That
such reassignment shall not involve a reduction in rank, status or WHEREFORE, the petition is DENIED. The assailed February 22,
salaries. [Underscoring supplied] 2007 Decision and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No.
93781, are hereby AFFIRMED with MODIFICATION that respondent Minerva
M.P. Pacheo is hereby ordered reinstated without loss of seniority rights but is only entitled
The principal distinctions between a detail and reassignment lie in the place where to the payment of back salaries corresponding to five (5) years from the date of her invalid
the employee is to be moved and in its effectivity pending appeal with the CSC. Based on reassignment on May 7, 2002.
the definition, a detail requires a movement from one agency to another while a
reassignment requires a movement within the same agency. Moreover, pending appeal with SO ORDERED.