THE OMBUDSMAN, FACT-FINDING AND INTELLIGENCE BUREAU, Office of the "non-disclosure of assets and business interests.
assets and business interests." Questions on the strength
Ombudsman, and PRELIMINARY INVESTIGATION AND ADMINISTRATIVE
ADJUDICATION BUREAU, Office of the Ombudsman, petitioners, vs. NESTOR
S. VALEROSO,
FACTS:
Nestor Valeroso, the respondent, then occupying the position of Director II at the
Bureau of Internal Revenue was charged with Perjury and Dishonesty, Flasification of
Official Documents and Conduct prejudicial to the Best interest of the Service by the
Fact finding and intelligence bureau of the office of the ombudsman. Such
accusations were due to the petitioner’s failure to disclose his ownership of several
properties and unexplained increase in net worth. This placed the petitioner under
preventive suspension for six months without pay.
The respondent filed with the Court of Appeals a petition for certiorari in order to
nullify the preventive suspension against him. The petition is instituted on the
ground that the element of strong evidence of guilt was lacking, and that due
process was denied when he was not informed about the nature of the charges
against him.
Issue:
Whether or not the preventive suspension imposed by the Ombudsman is valid?
Held:
1. No. There is no dispute as to the power of the Ombudsman to place a public
officer charged with an administrative offense under preventive
suspension. That power is clearly confined under Section 24 of R.A. No.
6770, otherwise known as the Ombudsman Act of 1989, which reads:
Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy
may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is strong,
and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against
him. The preventive suspension shall continue until the case is terminated
by the Office of the Ombudsman but not more than six months, without
pay, except when the delay in the disposition of the case by the Office of
the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. Clear it is from the
above that the law sets forth two conditions that must be satisfied to justify
the issuance of an order of preventive suspension pending an investigation,
to wit:
1. The evidence of guilt is strong; and
2. Either of the following circumstances co-exist with the first
requirement:
a. The charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty;
b. The charge would warrant removal from the service; or
c. The respondent's continued stay in office may prejudice
the case filed against him.
Here, respondent was charged with dishonesty, among other
administrative and criminal charges, and the Ombudsman particularly
found strong evidence to support said charge on the specified ground of
of the evidence to support the preventive suspension order are squarely
within the jurisdiction of the Ombudsman.
The rule is that whether the evidence of guilt is strong, as required in Section 24 of
R.A. No. 6770, is left to the determination of the Ombudsman by taking into account
the evidence before him. In the very words of Section 24, the Ombudsman may
preventively suspend a public official pending investigation if "in his judgment" the
evidence presented before him tends to show that the official's guilt is strong and if
the further requisites enumerated in Section 24 are present. The Court cannot
substitute its own judgment for that of the Ombudsman on this matter, absent clear
showing of grave abuse of discretion on the part of respondent Ombudsman.
Moreover, the charge of dishonesty is a grave offense which, if duly proven, merits
the penalty of dismissal from the service on commission of the first infraction.
CIVIL SERVICE COMMISSION, vs. PEDRO O. DACOYCOY,
PARDO, J.:
FACTS: On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-
President, Allen Chapter, Northern Samar, filed with the Civil Service Commission,
Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness,
misconduct and nepotism.
The Civil Service Regional Office No. 8, Tacloban City, filed charges against
him. Accordingly, the Civil Service Commission promulgated its resolution finding no
substantial evidence to support the charge of habitual drunkenness and misconduct.
However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty
of nepotism on two counts as a result of the appointment of his two sons, Rito and
Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under
his immediate supervision and control as the Vocational School Administrator
Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal
from the service.
respondent Dacoycoy filed a motion for reconsideration; however, the Civil
Service Commission denied the motion.
respondent Dacoycoy filed with the Court of Appeals a special civil action for
certiorari with preliminary injunction1[6] to set aside the Civil Service Commission’s
resolutions.the Court of Appeals promulgated its decision reversing and setting
aside the decision of the Civil Service Commission, Hence, this appeal.
ISSUE: W/N there is nepotism.
YES.
The law defines nepotism as follows:
“Sec. 59. Nepotism. – (1) All appointments to the national, provincial, city and
municipal governments or in any branch or instrumentality thereof, including
government owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of
the persons exercising immediate supervision over him, are hereby prohibited.
 “As used in this Section, the word “relative” and members of the family
referred to are those related within the third degree either of consanguinity or of
affinity.
(2) The following are exempted from the operations of the rules on nepotism:
(a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and
(d) members of the Armed Forces of the Philippines: Provided, however, That in
each particular instance full report of such appointment shall be made to the
Commission.”
Under the definition of nepotism, one is guilty of nepotism if an appointment is
issued in favor of a relative within the third civil degree of consanguinity or affinity
of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned situations,
it is immaterial who the appointing or recommending authority is. To constitute a
violation of the law, it suffices that an appointment is extended or issued in favor of
a relative within the third civil degree of consanguinity or affinity of the chief of the
bureau or office, or the person exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro
College of Arts and Trades, Allen, Northern Samar. It is true that he did not appoint
or recommend his two sons to the positions of driver and utility worker in the
Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the
Vocational Department of the BCAT, who recommended the appointment of Rito.
However, it was respondent Dacoycoy who certified that “funds are available for the
proposed appointment of Rito Dacoycoy” and even rated his performance as “very
satisfactory”. On the other hand, his son Ped stated in his position description form
that his father was “his next higher supervisor”. The circumvention of the ban on
nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of
respondent Pedro O. Dacoycoy, who was the school administrator. He authorized
Mr. Daclag to recommend the appointment of first level employees under his
immediate supervision. Then Mr. Daclag recommended the appointment of
respondent’s two sons and placed them under respondent’s immediate supervision
serving as driver and utility worker of the school. Both positions are career
positions.
To our mind, the unseen but obvious hand of respondent Dacoycoy was behind
the appointing or recommending authority in the appointment of his two sons.
Clearly, he is guilty of nepotism
GLORIA VS CA
FACTS:
Private respondents are public school teachers. On various dates in September
and October 1990, during the teachers' strikes, they did not report for work. For this
reason, they were administratively charged with (1) grave misconduct, (2) gross
neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and
reasonable office regulations. (4) refusal to perform official duty, (5) gross
insubordination, (6) conduct prejudicial to the best interest of the service, and (7)
absence without leave (AWOL), and placed under preventive suspension. The
investigation was concluded before the lapse of 90-day suspension and private
respondents were found guilty as charged. Respondent Nicanor Margallo was
ordered dismissed from the service while respondents Amparo Abad, Virgilia
Bandigas, and Elizabeth Somebang were ordered suspended for six months The
MSPB denied their appeal. The appellate court ruled that private respondents were
entitled to the payment of their salaries, allowances and other benefits during the
period of their suspension beyond the 90-day period of preventive suspension
although they were found guilty of violation of reasonable office rules and
regulations for having been absent without leave during the teachers’ strike and
were reprimanded.
Petitioner contended that the continued suspension of private respondents
was due to their appeal, hence, the government should not be held answerable for
payment of their salaries. Moreover, petitioner claimed that private respondents are
considered under preventive suspension during the period of their appeal, thus, they
are not entitled to the payment of their salaries during their suspension.
ISSUE: W/N he is entitled to salaries during the period of suspension
HELD: The Court ruled that the preventive suspension of civil service
employees charged with dishonesty, oppression or grave misconduct or neglect of
duty is authorized by the Civil Service Law. It cannot be considered unjustified even
if later the charges are dismissed so as to justify the payment of salaries to the
employee concerned. It is limited to ninety (90) days unless the delay in the
conclusion of the investigation is due to the employee concerned. After that period,
even if the investigation is not finished, the employee shall be automatically
reinstated. However, although employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are
exonerated, the Court did not agree with the petitioner that they are not entitled to
compensation for the period of their suspension pending appeal if eventually they
are found innocent. Because respondent is penalized before his sentence is
confirmed that he should be paid his salaries in the event he is exornerated. It
would be unjust to deprive him of his pay as a result of the immediate execution of
the decision against him and continue to do so even after it is shown that he is
innocent of the charges for which he was suspended. To sustain the government’s
theory would be to make the administrative decision not only executory but final
and executory. Consequently, the Supreme Court affirmed the decision of the Court
of Appeals with modification as to the computation of the salaries awarded to
private respondents.
TERMINATION OF OFFICIAL FUNCTIONS
G.R. No. L-89 February 1, 1946
JOSE TOPACIO NUENO, MANUEL DE LA FUENTE, EUSTAQUIO C. BALAGTAS,
and DELIA C. DIÑO,petitioners,
vs.
GERARDO ANGELES, AGATON EVANGELISTA, ANDRES SANTA MARIA,
VICENTE G. CRUZ, AMADO V. HERNANDEZ and FELICIDAD
MANUEL, respondents.
Facts: Petitioners were elected as members of the Municipal Board of the City of
Manila in the general elections held on December 10, 1940. They were slated to
assume office for a term of three years. However the elections of 1943 did not push
through as the city was then under Japanese occupation. In 1945 due to physical
impossibility of conducting a special election the President of the Commonwealth
appointed the 6 respondents as members of the Board. Petitioners then instituted
this action against respondents on the ground that the petitioners having been
elected as members of the Municipal Board of Manila in the general election held in
December 1940 for three years, their term of office has not yet expired because
they have not served for said period due to the Japanese occupation. They also
contended that in view of the foregoing, they are entitled to hold-over or continue in
office until their successors are elected and qualified, and therefore respondents’
appointments are null and void.
Issue: Whether or not petitioners are entitled to hold over their positions until such
time when their successors shall have qualified and elected?
Held: No. The contention that petitioners are entitled to continue in office because
they have not completely served for three years due to the war, is untenable, even
assuming that they had not discharged the duties of their office during the Japanese
occupation of Manila. For the simple reason that the term of an office must be
distinguished from the tenure of the incumbent. The term means the time during
which the officer may claim to hold the office as of light, and fixes the interval after
which the several incumbents shall succeed one another. The tenure represents the
term during which the incumbent actually holds the office. The term of office is not
affected by the hold-over. The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent. There is no principle, law or doctrine
by which the term of an office may be extended by reason of war.
Regarding the hold-over principle, our lawmakers have followed the policy and
practice of those States that provide expressly in their statutes for holding over of
provincial, city and municipal officers as provided in the Revised Administrative
Code. However, the provisions relating to said principle have been deemed repealed
by the passage of Commonwealth Act No. 357 of the Election Code. Section 16 of
the said law states that whenever (1) the election fails to take place on the date
fixed by law (as in the case at bar), or (2) results in a failure to elect, or (3) the
officer-elect dies before assumption of office, or (4) his election is not confirmed for
disloyalty, or (5) he fails to qualify for reason of non-eligibility of other reasons, the
successor, to fill the vacancy shall be elected in a special election, if the President
does not exercise his discretion to fill the vacancy in the last three cases (3), (4) and
(5) by appointment. In the case at bar, since there was a physical impossibility of
holding a special election, the same section 16 empowers the President to appoint a
person to fill such temporary vacancy or interregnum, and the person so appointed
shall hold the office until the permanent successor has been elected or appointed to
fill the office for the unexpired term. Thus, the legislature expressly intended that
there shall be no hold-over of the previous occupant of the elective seat prior to
assumption of office of his successor.
From the foregoing it clearly appears that petitioners are not entitled to hold-over,
and after the expiration of their term of office on December 31, 1943, the offices of
members of the Municipal Board of Manila became vacant from January 1, 1944,
because of failure to hold the regular election on the second Tuesday of December
1943 and the special election, and consequently to elect the would-be incumbents.
And during the interregnum or temporary vacancy from January 1, 1944, until the
said special election is held and new members elected or, in case of failure to elect,
appointed by the President (under section 16 [c] and [d] of Commonwealth Act No.
357) the President had, under section 16 (a) of the same Act, the power to appoint
the respondents or any other, at his discretion, to fill said temporary vacancy or
vacancies. As the petitioners are not entitled to hold-over or continue, after the
expiration of their term, in the offices claimed by them and held now by the
respondents, they have no right to bring the present action and impugn the validity
of the latter's appointments.
G.R. No 94070 April 10, 1992
ROSALINDA DE PERIO SANTOS, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG and SECRETARY RAUL
MANGLAPUS, respondents.
EN BANC, GRIÑO-AQUINO, J.:
FACTS:
This is a petition for certiorari* seeking to set aside Administrative Order
No. 122 of the Office of the President, finding the petitioner guilty of dishonesty and
meting upon her, after appreciating certain mitigating circumstances in her favor,
the penalty of reprimand with a warning that a repetition of the same or similar
offense will be dealt with more severely. The President affirmed Assignment Order
No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the
petitioner to the home office from her post as permanent representative to the
Philippine Mission to the United Nations and other International Organizations
(MISUNPHIL, for short) in Geneva, Switzerland.
Petitioner Rosalinda de Perio-Santos, a career service officer with the rank
of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary, was
appointed on July 24, 1986, by her Excellency, President Corazon C. Aguino, to the
position of Permanent Representative of the Philippines to the Philippine Mission to
the United Nations and other International Organizations with station in Geneva,
Switzerland. On April 6, 1987, petitioner sought a leave of absence from the
Department of Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A.
Before they could leave Geneva, petitioner received instructions from the home
office directing her to proceed to Havana as a member of the Philippine delegation
to the UNCTAD G-77 Preparatory Conference from April 20-26, 1987. Instead of
buying an economy roundtrip ticket, she used for the Geneva-New York-Geneva
portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself
and her daughter Pia. They left Geneva for New York en route to Havana on April 15,
1987. On the same day, the DFA approved her application for a leave of absence
with pay from April 27 to May 1, 1987. Instead of claiming reimbursement for SFr.
2,996, she requested, and received, reimbursement of only SFr. 1,597 which she
spent for the Geneva to New York, and New York to Geneva portion of her trip,
thereby effecting savings of SFr.1,399 for the Government. On September 21, 1987,
the DFA required her to refund the amount representing her daughter's round-trip
ticket since DFA received a copy of the "facture" from the travel agency showing
that the amount of SFr.1,597 was in payment of (a) 1 billet adulte-Geneva/New
York/Geneva SFr. 950, and (b) 1 billet enfant-Geneva/New York/Geneva SFr. 673;
and that the sum of SFr. 673 represented the cost of her daughter's portion of the
ticket.
ISSUES:
1. whether or not petitioner was guilty of dishonesty.
2. whether or not the order of recall was invalid.
HELD:
1. No. Her failure to disclose the fact that her discounted tickets included the
fare for her child, was harmless and inconsequential as the two (2)
discounted Geneva-New York-Geneva tickets for herself and her daughter
were in fact inseparable, intransferable, non-cancellable and non-
refundable, in effect one whole fare only, for purposes of the discount. The
Court believes however that she did not intend to falsify or conceal the
truth when she filed a claim for the refund of the total cost of her
discounted tickets (SFr.1,597). Her claim for the whole discounted fare was
 based on the fact that her daughter's ticket was inseparable from her own
fare. They had to go together to be entitled to the special discount. Their
fare was indivisible, hence, the Government's offer to shoulder only the
petitioner's portion of the discounted fare (SFr. 950), excluding her
daughter's portion (SFr. 647) was neither fair nor reasonable.
2. No. the Court is not disposed to disturb the order of the DFA and the Office of the
President recalling the petitioner to the home office. There is no merit in the
petitioner's contention that her tour of duty in Geneva was for four (4) years, as
provided in Section 260 of P.D. No. 1578 ("Instituting the Administrative Code of
1978'), thus:
(b) Tour of duty — (1) The tour of duty of a foreign service officer
at any post shall be four (4) years commencing on the date of his
arrival at the post, after which he shall be transferred to another
post.
As pointed out by the Solicitor General, P.D. 1578 was one of those
unpublished "secret" decrees which this Court in Tañada, et al. vs. Tuvera,
et al., 146 SCRA 446, declared to be inoperative or without legal force and
effect. P.D. 1578 was expressly repealed on May 5, 1987, by Executive
Order No. 168, entitled "REPEALING PRESIDENTIAL DECREE NO. 1578
ENTITLED 'INSTITUTING THE ADMINISTRATIVE CODE OF 1978.'"
The applicable law therefore is Section 6, Part B, Title III, of R.A. 708, "The
Foreign Service Act of the Philippines," enacted on June 5, 1952, providing
that:
Sec. 6. Assignments and Transfers — A Foreign Service Officer
may be assigned by the Secretary to serve in the Department or in
a diplomatic or consular post abroad: Provided, however, that the
minimum period during which he may serve in any foreign post
shall be one year and the maximum period four years, except in
case of emergency or extraordinary circumstances, in which event
he may be tranferred from one foreign post to another or to the
Department by the order of the Secretary without regard to his
length of service in his former post.
Since the petitioner had been appointed to her post on July 24, 1986, she
had already served the minimum one-year period of service when her recall
on April 22, 1988 came. Her reassignment to Manila did not have to be
explained and justified by the Secretary of Foreign Affairs nor the President
of the Philippines
MARIO D. ORTIZ vs.COMMISSION ON ELECTIONS and COMMISSION ON
AUDIT
G.R. No. 78957. June 28, 1988
Facts:
Petitioner was appointed Commissioner of the Commission on Elections
(COMELEC) by then President Ferdinand E. Marcos "for a term expiring May 17,
1992." On March 5, 1986, petitioner sent President Corazon C. Aquino a letter which
reads that he hereby places his position at President Aquino’s disposal. On March
25, 1986, the Freedom Constitution was promulgated, Article III thereof provides:
xxx SEC. 3. Any public officer or employee separated from the service as a result of
the reorganization effected under this Proclamation shall, if entitled under the laws
then in force, receive the retirement and other benefits accruing thereunder.
On July 21, 1986, the Deputy Executive Secretary conveyed the information
to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had
"accepted, with regrets, their respective resignations, effective immediately." After
the presidential acceptance of said "resignations," new Commissioners composed
the COMELEC, to which Commissioners Agpalo, Ortiz and Marquinez submitted on
July 30, 1986 their respective applications for retirement.
To justify their petitions for retirement and their requests for payment of
retirement benefits, former COMELEC Commissioners invoked Section 1 of Republic
Act No. l568 which provides that: when the Auditor General or the Chairman or any
Member of the Commission on Elections retires from the service for having
completed his term of office xxx Provided, That in case of resignation, he has
rendered not less than twenty years of service in the government, he shall receive
an annuity payable monthly during the residue of his natural life equivalent to the
amount of monthly salary he was receiving on the date of retirement, incapacity or
resignation.
The COMELEC denied the applications for retirement of the Commissioners
on the ground that they were "not entitled to retirement benefits under Republic Act
No. 1568, as amended.” Petitioner Ortiz moved for the reconsideration of said
resolution; but the same was denied by the COMELEC. Petitioner appealed to the
Chairman of the COA, who referred the same to COMELEC. The same, however, was
not acted upon. Hence, this petition. The respondents posit the view that petitioner's
"voluntary resignation" prevented the completion of his term of office, and,
therefore, having rendered only sixteen years of service to the government, he is
not entitled to retirement benefits.
Issue:
Whether or not a constitutional official whose "courtesy resignation" was
accepted by the President of the Philippines during the effectivity of the Freedom
Constitution may be entitled to retirement benefits under Republic Act No. 1568, as
amended.
Held:
Petitioner's separation from government service as a result of the
reorganization ordained by the then nascent Aquino government may not be
considered a resignation within the contemplation of the law. Resignation is defined
as the act of giving up or the act of an officer by which he declines his office and
renounces the further right to use it. To constitute a complete and operative act of
resignation, the officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment. Resignation
implies an expression of the incumbent in some form, express or implied, of the
intention to surrender, renounce and relinquish the office, and its acceptance by
competent and lawful authority.
From the foregoing it is evident that petitioner's "resignation" lacks the
element of clear intention to surrender his position. We cannot presume such
intention from his statement in his letter of March 5, 1986 that he was placing his
position at the disposal of the President. He did not categorically state therein that
he was unconditionally giving up his position. It should be remembered that said
letter was actually a response to Proclamation No. 1 which President Aquino issued
on February 25, 1986 when she called on all appointive public officials to tender
their "courtesy resignation" as a "first step to restore confidence in public
administration.
Verily, a "courtesy resignation" can lot properly be interpreted as
resignation in the legal sense for it is not necessarily a reflection of a public official's
intention to surrender his position. Rather, it manifests his submission to the will of
the political authority and the appointing power. A stringent interpretation of
courtesy resignations must therefore be observed, particularly in cases involving
constitutional officials like the petitioner whose removal from office entails an
impeachment proceeding.
The curtailment of his term, not being attributable to any voluntary act on
the part of the petitioner, equity and justice demand that he should be deemed to
have completed his term albeit much ahead of the date stated in his appointment
paper. Petitioner's case should be placed in the same category as that of an official
holding a primarily confidential position whose tenure ends upon his superior's loss
of confidence in him. His cessation from the service entails no removal but an
expiration of his term. As he is deemed to have completed his term of office,
petitioner should be considered retired from the service.
G.R. No. 149356 March 14, 2008
REPUBLIC OF THE PHILIPPINES represented by the Department of Trade
and Industry, Petitioner, vs.WINSTON T. SINGUN
FACTS:
Singun, the respondent, a former Chief Trade and Idustry Development Specialist in
Cagayan, wrote a resignation letter to the Hipolito, regional director of DTI. However,
prior to the acceptance of the said resignation, undersecretary Ordonez, issued an
order detailing the respondent to the Office of the Undersecretary. However,
Ordonez proclaimed that such detail order is without effect since, the resignation of
the respondent was already accepted as evidenced by a memorandum the latter
had issued. The respondent contended that his resignation is without effect because
Ordonez failed to issue a notice accepting his resignation and such was still
revocable.
ISSUE
Whether respondent validly resigned from DTI-RO2 effective 14 January 2000?
Whether the detail order issued by Undersecretary Ordoñez effectively withdrew
respondent’s resignation.
HELD
1. NO. There was no indication that respondent received a copy of his 12 November
1999 application for leave of absence and resignation as accepted by Director
Hipolito. Neither was there any indication that respondent received Director
Hipolito’s 12 November 1999 Memorandum informing him of the acceptance of his
resignation. Therefore, we affirm the ruling of the Court of Appeals that respondent’s
resignation was incomplete and inoperative because respondent was not notified of
the acceptance of his resignation.
Resignation implies an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority.28 To constitute a complete and
operative resignation from public office, there must be: (a) an intention to relinquish
a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper
authority.
In our jurisdiction, acceptance is necessary for resignation of a public officer to be
operative and effective. Without acceptance, resignation is nothing and the officer
remains in office.30 Resignation to be effective must be accepted by competent
authority, either in terms or by something tantamount to an acceptance, such as the
appointment of the successor.31 A public officer cannot abandon his office before
his resignation is accepted, otherwise the officer is subject to the penal provisions of
Article 23832 of the Revised Penal Code. The final or conclusive act of a
resignation’s acceptance is the notice of acceptance. The incumbent official would
not be in a position to determine the acceptance of his resignation unless he had
been duly notified therefor.
2. YES. Until the resignation is accepted, the tender or offer to resign is revocable.36
And the resignation is not effective where it was withdrawn before it was
accepted.37
In this case, since respondent’s resignation was not finally and conclusively
accepted as he was not duly notified of its acceptance, respondent could validly
withdraw his resignation. There was no need for Director Hipolito to accept the
withdrawal of resignation since there was no valid acceptance of the application of
resignation in the first place. Undersecretary Ordoñez also validly issued the detail
order as respondent had not effectively resigned from DTI-RO2.
ESTRADA VS DESIERTO
Facts: In the May 11, 1998 elections, petitioner Joseph Estrada was elected
President while respondent Gloria Macapagal-Arroyo was elected Vice-President.
From the beginning of his term, however, petitioner was plagued by problems that
slowly eroded his popularity. On October 4, 2000, Ilocos Sur Governor Chavit
Singson, a longtime friend of the petitioner, accused the petitioner, his family and
friends of receiving millions of pesos from jueteng lords. The expose’ immediately
ignited reactions of rage. On November 13, 2000, House Speaker Villar transmitted
the Articles of Impeachment signed by 115 representatives or more than 1/3 of all
the members of the House of Representatives to the Senate. On November 20,
2000, the Senate formally opened the impeachment trial of the petitioner. On
January 16, 2001, by a vote of 11-10, the senator-judges ruled against the opening
of the second envelope which allegedly contained evidence showing that petitioner
held P3.3 billion in a secret bank account under the name “Jose Velarde.” The ruling
was met by a spontaneous outburst of anger that hit the streets of the metropolis.
Thereafter, the Armed Forces and the PNP withdrew their support to the Estrada
government. Some Cabinet secretaries, undersecretaries, assistant secretaries and
bureau chiefs resigned from their posts.
On January 20, 2001, at about 12 noon, Chief Justice Davide administered the oath
to respondent Arroyo as President of the Philippines. On the same day, petitioner
issued a press statement that he was leaving Malacanang Palace for the sake of
peace and in order to begin the healing process of the nation. It also appeared that
on the same day, he signed a letter stating that he was transmitting a declaration
that he was unable to exercise the powers and duties of his office and that by
operation of law and the Constitution, the Vice-President shall be the Acting
President. A copy of the letter was sent to Speaker Fuentebella and Senate President
Pimentel on the same day.
After his fall from the power, the petitioner’s legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set
in motion.
Issues:
(1) Whether or not the petitioner resigned as President
(2) Whether or not the petitioner is only temporarily unable to act as President
Held: Petitioner denies he resigned as President or that he suffers from a
permanent disability.
Resignation is a factual question. In order to have a valid resignation, there must be
an intent to resign and the intent must be coupled by acts of relinquishment. The
validity of a resignation is not governed by any formal requirement as to form. It can
be oral. It can be written. It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect. In the cases at bar, the facts show
that petitioner did not write any formal letter of resignation before leaving
Malacanang Palace. Consequently, whether or not petitioner resigned has to be
determined from his acts and omissions before, during and after Jan. 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue. The Court had an authoritative
window on the state of mind of the petitioner provided by the diary of Executive Sec.
Angara serialized in the Phil. Daily Inquirer. During the first stage of negotiation
between Estrada and the opposition, the topic was already about a peaceful and
orderly transfer of power. The resignation of the petitioner was implied. During
the second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be
undertaken by the parties during and after the transition period. The Court held
that the resignation of the petitioner cannot be doubted. It was confirmed
by his leaving Malacanang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the respondent as
President of the Republic, but with the reservation about its legality; (2)
he emphasized he was leaving the Palace, the seat of the presidency, for
the sake of peace and in order to begin the healing process of the nation.
He did not say he was leaving the Palace due to any kind of inability and
that he was going to reassume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people for the
opportunity to serve them; (4) he assured that he will not shirk from any
future challenge that may come ahead in the same service of the country;
and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity.
The Court also tackled the contention of the petitioner that he is merely temporarily
unable to perform the powers and duties of the presidency, and hence is a President
on leave. The inability claim is contained in the Jan. 20, 2001 letter of petitioner sent
to Senate Pres. Pimentel and Speaker Fuentebella. Despite said letter, the House of
Representatives passed a resolution supporting the assumption into office by Arroyo
as President. The Senate also passed a resolution confirming the nomination of
Guingona as Vice-President. Both houses of Congress have recognized respondent
Arroyo as the President. Implicitly clear in that recognition is the premise that the
inability of petitioner Estrada is no longer temporary. Congress has clearly rejected
petitioner’s claim of inability. The Court cannot pass upon petitioner’s claim of
inability to discharge the powers and duties of the presidency. The question is
political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue which cannot be decided by the Court without transgressing the
principle of separation of powers.
ELISA O. GAMBOA, et al. vs. HONORABLE COURT OF APPEALS, et al.
G.R. No. L-38068 September 30, 1981
GUERRERO, J.:
Facts:
Petitioners are the defendants in a civil case filed by herein private respondents with
the CFI of Rizal, for damages. Judgment was rendered by the trial court (then
presided over by Judge Vivencio Ruiz) in favor of the private respondents. The
judgment having become final, a writ of execution was issued and accordingly, a
public auction sale was conducted by the Sheriff who issued a Sheriff's Certificate of
Sale of a Toyota Corolla taxi, model '69, and of a certificate of Public Convenience to
operate 60 units of taxicabs, in favor of private respondents, represented by Atty.
Jesus Suntay, their counsel of record. Thereafter, herein petitioners filed an "Urgent
Motion to Set Aside Sale on Execution" on the grounds that the execution sale was
attended by fraud, mistake and/or irregularity "so serious as to have worked a grave
injustice to defendants herein." The then presiding Judge Ruiz denied said motion.
Herein petitioners filed a Motion for Reconsideration which Judge Ruiz granted,
setting aside the execution sale on the grounds that it is defective and irregular.
Later, Judge Vivencio Ruiz tendered his resignation pursuant to and in compliance
with Letter of Instruction No. 11 issued by the President of the Philippines. The
aforesaid order of Judge Ruiz was then, setting aside the execution sale,
promulgated and filed with the Clerk of Court. Subsequent thereto, Judge Ruiz
received the letter of acceptance by the President. Respondent Judge Arsenio
Alcantara was appointed in his stead.
Private respondents filed their "Motion to Annul and/or Set Aside Order, dated
September 18, 1972". Respondent Judge Alcantara granted private respondents'
motion, and declared as null and void the order of the former Judge Ruiz, thereby
restoring the validity and efficacy of the execution sale in favor of private
respondents. The reasons stated in the questioned order were: (1) that Judge Ruiz
ceased to be a member of the Judiciary on the date of his resignation that was
October 4, 1972, or, on the date of acceptance thereof by the President in his letter
of October 6, 1972; (2) that the order of September 18, 1972 was filed with the Clerk
of Court only on October 18, 1972 — to be valid and binding, a judgment or order
must be duly signed and promulgated during the incumbency of the Judge whose
signature appears thereon; (3) that Judge Ruiz cannot even be considered a de facto
officer after October 4 or 6, 1972 because — (a) the filing of the resignation of a
public officer in the proper office, without any objection constitutes a sufficient
acceptance and notice of acceptance is not necessary; (b) good faith on the part of
Judge Ruiz did not exist when the order of September 18, 1972 was filed and
promulgated with the Clerk of Court on October 18, 1972, "on account of the fact
that all orders except litigated order of September 18, 1972 filed with the Clerk of
Court on October 18, 1972 bore October dates as attested by the certification of the
Clerk of Court, and if it were true that the contested order was made on September
18, 1972, why was it not released earlier than October 18, 1972 when several orders
or decisions bearing all October dates were released ahead of the order in question".
Petitioners filed their Motion for Reconsideration; however, respondent Judge denied
petitioner's motion. Petitioners likewise filed a "Motion for Reconsideration and
Motion to Adduce Evidence in Support of Motion" but it was denied for lack of
sufficient merits.
Issue:
Whether or not Judge Vivencio M. Ruiz ceased to be judge de jure or de facto upon
acceptance of his resignation by the President of the Philippines.
Ruling:
No. One of the ways of terminating official relations is by resignation. To constitute
a complete and operative resignation of public office, there must be an intention to
relinquish a part of the term, accompanied by the act of relinquishment 6 and a
resignation implies an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. 7 In Our jurisprudence, acceptance is
necessary for resignation of a public officer to be operative and effective, otherwise
the officer is subject to the penal provisions of Article 238 of the Revised Penal Code
on Abandonment of office or position. Clearly, a public officer cannot abandon his
office or position before his resignation is accepted but the incumbent official would
not be in a position to determine the acceptance of his resignation unless he has
been duly notified therefor.
It must be noted that respondent Court of Appeals underscored the undeniable fact
that while the President's letter of acceptance was dated October 6, 1972, it was
completely processed only on October 20, 1972 and officially received by Judge Ruiz
on October 21, 1972. Thus, respondent Court's holding that even if there were a
strict interpretation as to when Judge Ruiz ceased to be a member of the Judiciary
although petitioners maintain that the date of his cessation from office is October 6,
1972, still, his acts before the official notification of the acceptance of his resignation
are those of a de facto officer, and therefore, valid, is correct. Respondent Court of
Appeals has also pointed out correctly that the underlying principle of de facto acts
is the protection of third parties and the public. It is for this reason of public interest
that the Secretary (now Minister) of Justice issued Circular No. 70 dated October 13,
1972, directing all categories of judges and fiscals to stay in their official stations
and not to depart therefrom without previous permission from the Office (referring
to Ministry of Justice) and to continue discharging their functions until notified of the
action taken on their letters of resignation.
SB of San Andres Catanduanes v. CA
G.R. No. 118883January 16, 1998
Pnaganiban, J:
FACTS:
Augusto T. Antonio was elected bgy captain of Sapang Palay, San Andres. In that
capacity, he was appointed by the President as member of the Sangguniang Bayan
of the Municipality of San Andres and was later elected president of the Association
of Barangay Councils (ABC).Meanwhile, the election for the president of Federation
of the Association of Barangay Councils (FABC) was declared void by theDILG for
lack of quorum and there organization in the provincial council became necessary.
Being president of ABC, the DILG Sec. appointed Antonio as temporary member of
the Sangguniang Panlalawigan of the Province of Catanduanes. As such, Antonio
tendered his resignation as member of SB.The VP of ABC, Nenito Aquino was
appointed as member of SB in replacementof Antonio.Later SC, invalidate the
decision of the DILG with regard to the election of the FABC president and also
the appointmentof Antonio as member of SP. Antonio wrote a letter to SB to
reassume his position but it was denied on the ground that he has already resigned.
ISSUE:
WON there is an effective resignation of abandonment of office.
HELD:
Antonio cannot assume his previous position because although there was no
effective resignation, there was an abandonment of office. To constitute a complete
and operative resignation from public office, there must be: (a) an intention to
relinquish a part of the term; (b) an act of relinquishment; and(c) an acceptance by
the proper authority .In this case, there is no effective resignation because there is
no evidence that the resignation was accepted by any government functionary or
office. However, Antonio has effectively relinquished his membership in the
Sangguniang Bayan due to his voluntary abandonment of said post. This is
clear when he did not simultaneously discharge the duties and obligations of both
positions. Neither did he, at that time, express an intention to resume his office
as member of the SB. His overt acts, silence, inaction and acquiescence, when
Aquino succeeded him to his original position, show that Antonio had abandoned the
contested office. Antonio’s failure to promptly assert hisalleged right implies his loss
of interest in the position. His overt acts plainly show that he really meant his
resignation and understood its effects
FRANCISCO A. TAN vs. PEDRO M. GIMENEZ
G.R. No. L-12525 February 19, 1960
PADILLA, J.:
Facts:
This is a petition for review of the decision of the Auditor General denying the
petitioner's claim for back salaries.
The petitioner was head teacher in Habuhab barrio school, Caibiran, Leyte, with
P140 monthly salary or P1680 annually. Petitioner was charged with gross
misconduct for an immoral act committed in the evening of 4 June 1948. On 14 June
1949 the Commissioner of Civil Service found him guilty and required him "to resign
from the service, with prejudice to reinstatement in the teaching service, effective
on his last day of duty with pay." He appealed to the Civil Service Board of Appeals.
On 26 June 1954 the Civil Service Board of Appeals reversed the decision of the
Commissioner of Civil Service and acquitted him of the charge. On 4 June 1955 the
petitioner wrote to the Division Superintendent of Schools of Leyte "accepting the
reinstatement offered to take effect on June 13, 1955”. However, in view of ill health
he applied "for an indefinite sick leave of absence." The petitioner was suffering
from "Hypertension (labile)" and the doctor advised him to take a rest.
On 14 July 1955 he wrote to the Division Superintendent of Schools of Leyte
requesting payment of back salaries from 6 August 1949 to 12 June 1955, inclusive,
at the rate of P1680 per annum, or total of P9,598.58. On 16 February 1956 the
Undersecretary of Education disregarded the Director's recommendation and denied
the petitioner's claim on the ground that he was out of the service from 6 August
1949 to 1 March 1951, inclusive, he having been dismissed by the Commissioner of
Civil Service for grave misconduct; that although the decision of the Commissioner
was reversed on appeal by the Civil Service Board of Appeals, payment of back
salaries to him during the period of removal from office was a matter of discretion;
and that funds were not available.
Issue:
Whether or not the decision of dismissal from service becomes final and executory
that prohibits petitioner from receiving back salary
Held:
No. The decision did not become final and executory. The appeal taken by the
petitioner to the Civil Service Board of Appeals from the decision of the
Commissioner of Civil Service finding him guilty of grave misconduct and requiring
him to resign from the service precluded the execution of the decision of the
Commissioner of Civil Service. The decision of the Civil Service Board of Appeals
reversing that of the Commissioner of Civil Service and absolving the petitioner from
the charge was not reversed or modified by the President. It, therefore, became the
final decision on the petitioner's case. The petitioner's removal from office was not in
accordance with law; his reinstatement became a ministerial duty of the proper
authority; and the payment of back salary was merely incidental to reinstatement.
The fact that during the pendency of the petitioner's appeal in the Civil Service
Board of Appeals, he worked as clerk in the Office of the Provincial Treasurer of
Leyte, does not constitute abandonment of his former position. He was ordered to
resign from the service with prejudice to reinstatement and by virtue thereof was
prevented from exercising the functions of his position and receiving the
corresponding compensation. Finding employment in another branch of the
government does not constitute abandonment of his former position. To deny him
the right to collect his back salaries during such period would be tantamount to
punishing him after his exoneration from the charge which caused his dismissal from
the service.
Judgment is hereby rendered declaring the petitioner entitled to receive and the
Government bound to pay him the sum of P3,784.57
[G.R. No. 133132. February 15, 2001.]
ALEXIS C. CANONIZADO vs. HON. ALEXANDER P. AGUIRRE
GONZAGA-REYES, J.:
FACTS:
This is a motion for reconsideration to the Court's decision declaring Section 8 of
Republic Act No. 8551 void for being violative of petitioners' constitutional
guaranteed right to security of tenure.
Petitioners, Commissioners of the National Police Commission, with the effectivity of
the law, were removed from office and in their stead appointed respondents Aguirre,
Adiong and two other generals. Petitioners seasonably assailed the constitutionality
of the said law. Meanwhile, pending appeal, petitioner Canonizado was appointed
and assumed the Office of Inspector General of the Internal Affairs Service (IAS) of
the Philippine National Police (PNP). The respondents alleged that petitioner's
appointment constituted abandonment of his claim for reinstatement since the
offices of NAPOLCOM and Inspector General of the IAS are incompatible.
ISSUE:
Whether or not petitioner's appointment constituted abandonment of his claim for
reinstatement since the offices of NAPOLCOM and Inspector General of the IAS are
incompatible.
HELD:
NO. It is held that there is no question that the positions of NAPOLCOM
Commissioner and Inspector General of the IAS are incompatible with each
other. However, the rule does not apply where there was no discharge of
functions of the two offices simultaneously; and that acceptance of a
second position pending appeal does not constitute abandonment. He had
the right to live during the pendency of his appeal and naturally the right
to accept any form of employment. Prohibiting petitioner from accepting a
second position during the pendency of his petition would be to unjustly
compel him to bear the consequences of an unconstitutional act which
under no circumstances can be attributed to him.
Generally speaking, a person holding a public office may abandon such office by
nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or
to exercise an office. However, nonperformance of the duties of an office does not
constitute abandonment where such nonperformance results from temporary
disability or from involuntary failure to perform. Abandonment may also result from
an acquiescence by the officer in his wrongful removal or discharge, for instance,
after a summary removal, an unreasonable delay by an officer illegally removed in
taking steps to vindicate his rights may constitute an abandonment of the office.
Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the requirements
of a statute which is afterwards declared unconstitutional, such a surrender will not
be deemed an abandonment and the officer may recover the office.
By accepting the position of Inspector General during the pendency of the present
case — brought precisely to assail the constitutionality of his removal from the
NAPOLCOM — Canonizado cannot be deemed to have abandoned his claim for
reinstatement to the latter position. First of all, Canonizado did not voluntarily leave
his post as Commissioner, but was compelled to do soon the strength of Section 8 of
RA 8551. In our decision of 25 January 2000, we struck down the above quoted
provision for being violative of petitioners' constitutionally guaranteed right to
security of tenure. Thus, Canonizado harbored no willful desire or intention to
abandon his official duties. In fact, Canonizado, together with petitioners Edgar Dula
Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an
illegal removal; a few weeks after RA 8551 took effect on 6 March 1998, petitioners
instituted the current action on 15 April 1998, assailing the constitutionality of
certain provisions of said law. The removal of petitioners from their positions by
virtue of a constitutionally infirm act necessarily negates a finding of voluntary
relinquishment.
It is a well settled rule that he who, while occupying one office, accepts another
incompatible with the first, ipso facto vacates the first office and his title is thereby
terminated without any other act or proceeding. Public policy considerations dictate
against allowing the same individual to perform inconsistent and incompatible
duties. The incompatibility contemplated is not the mere physical impossibility of
one person's performing the duties of the two offices due to a lack of time or the
inability to be in two places at the same moment, but that which proceeds from the
nature and relations of the two positions to each other as to give rise to contrariety
and antagonism should one person attempt to faithfully and impartially discharge
the duties of one toward the incumbent of the other.
NOTES:
ABANDONMENT, DEFINITION. — Abandonment of an office is the voluntary
relinquishment of an office by the holder, with the intention of terminating his
possession and control thereof. In order to constitute abandonment of office, it must
be total and under such circumstances as clearly to indicate an absolute
relinquishment. There must be a complete abandonment of duties of such
continuance that the law will infer a relinquishment. Abandonment of duties is a
voluntary act; it springs from and is accompanied by deliberation and freedom of
choice. There are, therefore, two essential elements of abandonment: first, an
intention to abandon and second an overt or "external" act by which the intention is
carried into effect.
De Los Santos vs. Mallare
G.R. No. L-3881, August 31, 1950
Tuason, J.
FACTS: Eduardo de los Santos, the petitioner was appointed City Engineer of Baguio
on July 16, 1946, by the President, appointment which was confirmed by the
Commission on Appointments on August 6, and on the 23rd of that month, he
qualified for and began to exercise the duties and functions of the position. On June
1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to
the same position, after which, on June 3, the Undersecretary of the Department of
Public Works and Communications directed Santos to report to the Bureau of Public
Works for another assignment. Santos refused to vacate the office, and when the
City Mayor and the other officials named as Mallare's co-defendants ignored him and
paid Mallare the salary corresponding to the position, he commenced these
proceedings.
ISSUE: Whether or not the President may remove a city engineer, a position that is
neither confidential, policy determining nor highly technical at pleasure.
HELD: No. Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily confidential. The
latter phrase denotes not only confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state. Nor is the position of city engineer policy-determining.
A city engineer does not formulate a method of action for the government or any its
subdivisions. His job is to execute policy, not to make it. With specific reference to
the City Engineer of Baguio, his powers and duties are carefully laid down for him be
section 2557 of the Revised Administrative Code and are essentially ministerial in
character. Finally, the position of city engineer is technical but not highly so. A city
engineer is not required nor is he supposed to possess a technical skill or training in
the supreme or superior degree, which is the sense in which "highly technical" is, we
believe, employed in the Constitution. There are hundreds of technical men in the
classified civil service whose technical competence is not lower than that of a city
engineer. As a matter of fact, the duties of a city engineer are eminently
administrative in character and could very well be discharged by non-technical men
possessing executive ability. Nevertheless, the President may not remove the city
engineer at pleasure as Section 2545 of the Revised Administrative Code which
authorized the same was repealed when the Constitution took effect.
G.R. No. 78053 June 4, 1990
FRANCISCO L. MENDOZA vs. HON. LOURDES R. QUISUMBING as Secretary of
Education, Culture and Sports
GUTIERREZ, JR., J.:
(The issues raised in these consolidated cases refer to the validity of various
reorganization programs in different agencies and/or departments of the
government implementing the orders issued pursuant to the President's
Proclamation No. 1 declaring as policy the reorganization of the government and
Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS
MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A
PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION." In addition to the pleadings filed, the
parties discussed the basic issues raised in these petitions during the hearings held
on January 24 and 31, 1989.)
FACTS:
In G.R. No. 78053, the petitioner questions the validity of the March 19, 1987 letter-
order of the then Secretary of Education, Culture and Sports (DECS) Lourdes R.
Quisumbing which terminated his employment as Schools Division Superintendent of
Surigao City.
Petitioner Mendoza was the Schools Division Superintendent of Surigao City who was
reappointed by respondent Quisumbing as such with a "PERMANENT" status. He has
served the Department of Education for forty-two (42) years, moving up the ranks in
the public schools system. Executive Order No. 117 was issued by the President
reorganizing the DECS. The petitioner received the letter-order informing him that
pursuant to Executive Order No. 117 which provides for a reorganization of the DECS
and the implementing guidelines thereof he would be considered separated from the
service effective without prejudice to availment of benefits. The letter particularly
stated that consistent with the mandate of reorganization to achieve greater
efficiency and effectiveness, all incumbent officials/personnel are on 'holdover'
status unless advised otherwise. In his place, Secretary Quisumbing appointed Dr.
Socorro L. Sering, on a permanent status on March 2, 1988. In the meantime, the
petitioner wrote Secretary Quisumbing requesting reconsideration of the letter-
order. The letter was forwarded to the Reorganization Appeals Board (RAB). The
motion for reconsideration remained unacted upon, hence on June 24, 1987, the
petitioner filed the instant petition for certiorari, prohibition and mandamus with
preliminary injunction. In a resolution dated September 19, 1988, the RAB
recommended that action on the petitioner's letter- reconsideration be deferred
pending resolution of the instant petition.
The petitioner in G.R. No. 78053 argues against the "holdover" feature of the
challenged order in this manner:
xxx xxx xxx
... To reduce four hundred thousand officers and employees most of them
permanent, to holdover status preparatory to their eventual separation
from the service many of them beyond middle age and too late to start a
new career, is not only tyranny but cruelty of the first magnitude.
Reorganizations can be accomplished without disruption of family life, so
well respected and protected by the. 1986 (sic) Constitution when it says
with honor and oxide, 'The State recognizes sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution.'
Moreover, this step is not in keeping with the mandate of the Freedom
Constitution which tasks the President to make effective the guarantees of
human rights against violations thereof. (Rollo, G.R. No. 78053, p. 5)
ISSUE:
Whether or not the separation of the petitioner from office allegedly resulting from
the reorganization is valid.
HELD:
NO. The ritual invocation of the abolition of office is not sufficient to justify the
termination of the services of an officer or employee in such abolished office. It is a
paramount principle in Public Officers' Law that the power to abolish public offices
vested in the legislature is not absolute. It is subject to the limitations that it be
exercised in good faith, should never be for personal or political reasons, and
cannot, be implemented in a manner contrary to law. If an executive department is
bloated with unnecessary employees, there can be no objection to a law abolishing
the useless or non-essential items.
Speaking through Mr. Justice J.B.L. Reyes, the Court was very emphatic in Cruz v.
Primicias, Jr., supra that an abolition which is not bona-fide but is merely a device to
circumvent the constitutional security of tenure of civil service employees is null and
void.
These principles were reiterated in De la Llana v. Alba (112 SCRA 294 [1982]) where
we sustained a bona-fide reorganization, to wit:
...It is a well-known rule also that valid abolition of offices is neither removal
nor separation of the incumbents. And of course, if the abolition is void, the
incumbent is deemed never to have ceased to hold office....' As well-settled
as the rule that the abolition of an office does not amount to an illegal
removal of its incumbent is the principle that, in order to be valid, the
abolition must be made in good faith. (at pp. 321-322).
It is apparent that the petitioner's termination as Schools Division Superintendent of
Surigao City was pursuant to the public respondent's view that under Section 24 of
Executive Order No. 117 all incumbent officials/personnel of DECS were on hold-over
status unless advised otherwise.
The dismissal of all employees and their being placed on holdover status is
particularly objectionable in the DECS. There could have been no intention to get rid
of hundreds of thousands of school teachers. The use of "reorganization" even under
the concept advocated by the Solicitor General appears trivial if not unnecessary. To
use reorganization of the biggest Department in the government in order to avoid
the hassles of bringing administrative charges against Mendoza and perhaps a few
other alleged persona-non-gratas like him is precisely what this Court rejects when
we apply the bona-fide rule. One does not burn down a house if his purpose is to
roast alleged pests. There was grave abuse of discretion when the petitioner's
services were terminated by a mere letter-order on the justification that the
petitioner, together with the entire personnel of the DECS, was only in a hold-over
capacity. If the petitioner is guilty of wrongdoing, it is an easy matter to the charges
against him instead of placing the entire DECS on hold-over status in order to run
after him.
The petition is GRANTED. The LETTER-ORDER dated MARCH 19, 1987 issued by the
public respondent which terminated the services of the petitioner is SET ASIDE. The
successor of the public respondent, the former Lourdes R. Quisumbing as Secretary
of Education, Culture and Sports, is ordered to restore the petitioner to his position
as Schools Division Superintendent of Surigao City without loss; of seniority rights
and with back salaries reckoned from the date of his termination.
Dario vs. Mison
G.R. No. 81954 August 8, 1989
SARMIENTO, J.:
FACTS:
The President promulgated Executive Order No. 127, "REORGANIZING
THE MINISTRY OF FINANCE” which provides for the reorganization of the Bureau of
Customs and prescribed a new staffing pattern therefor. Thereafter, on February 2,
1987, the Filipino people adopted the new Constitution. On January 6, 1988,
incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the
nature of "Guidelines on the Implementation of Reorganization Executive Orders,"
prescribing the procedure in personnel placement whereby it provides that by
February 28, 1988, the employees covered by Executive Order 127 and the grace
period extended to the Bureau of Customs by the President of the Philippines on
reorganization shall be: a) informed of their re-appointment, or b) offered another
position in the same department or agency or c) informed of their termination.
Commissioner Mison also constituted a Reorganization Appeals Board charged with
adjudicating appeals from removals under the above Memorandum which notices of
termination were sent to 394 Customs officials. Some sought reinstatement from the
CSC which the latter granted to 279 of them while the others went directly to the
Supreme Court.
Mison also filed a petition questioning the decision of the CSC. Also, RA
6656 was then passed also known as ACT TO PROTECT THE SECURITY OF TENURE
OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF
GOVERNMENT REORGANIZATION, providing that all officers and employees who are
found by the Civil Service Commission to have been separated in violation of the
provisions of this Act, shall be ordered reinstated or reappointed without loss of
seniority and shall be entitled to full pay for the period of separation. Unless also
separated for cause, all officers and employees, including casuals and temporary
employees, who have been separated pursuant to reorganization shall, if entitled
thereto, be paid the appropriate separation pay and retirement and other benefits
under existing laws within ninety (90) days from the date of the effectivity of their
separation or from the date of the receipt of the resolution of their appeals as the
case may be: Provided, That application for clearance has been filed and no action
thereon has been made by the corresponding department or agency. Those who are
not entitled to said benefits shall be paid a separation gratuity in the amount
equivalent to one (1) month salary for every year of service. Such separation pay
and retirement benefits shall have priority of payment out of the savings of the
department or agency concerned.
ISSUES: 1.) Whether or not CSC erred in its decision;
2.) Whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant
of a license upon the Government to remove career public officials it could have
validly done under an "automatic"-vacancy-authority and to remove them without
rhyme or reason.
HELD:
On the first issue:
NO. All the parties agree on the validity of reorganization per se, leaving the
question only on its nature and extent. Invariably, transition periods are
characterized by provisions for "automatic" vacancies. They are dictated by the
need to hasten the passage from the old to the new Constitution free from the
"fetters" of due process and security of tenure. At this point, we must distinguish
removals from separations arising from abolition of office (not by virtue of the
Constitution) as a result of reorganization carried out by reason of economy or to
remove redundancy of functions. In the latter case, the Government is obliged to
prove good faith. In case of removals undertaken to comply with clear and explicit
constitutional mandates, the Government is not obliged to prove anything because
the Constitution allows it.
Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy
Commissioner at the Bureau until his separation directed by Commissioner Mison.
And like Dario he claims that under the 1987 Constitution, he has acquired security
of tenure and that he cannot be said to be covered by Section 59 of Executive Order
No. 127, having been appointed on April 22, 1986 — during the effectivity of the
Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING
THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the
Commissioner of Customs has the power "[t]o appoint all Bureau personnel, except
those appointed by the President," and that his position, which is that of a
Presidential appointee, is beyond the control of Commissioner Mison for purposes of
reorganization.
The petitioners in G.R. No. 82023, collectors and examiners in venous
ports of the Philippines, say, on the other hand, that the purpose of reorganization is
to end corruption at the Bureau of Customs and that since there is no finding that
they are guilty of corruption, they cannot be validly dismissed from the service.
On the second issue:
NO, the provision benefits career civil service employees separated from
the service. And the separation contemplated must be due to or the result of (1) the
reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the
reorganization from February 2, 1987, and (3) the resignations of career officers
tendered in line with the existing policy and which resignations have been accepted.
The phrase "not for cause" is clearly and primarily exclusionary, to exclude those
career civil service employees separated "for cause." In other words, in order to be
entitled to the benefits granted under Section 16 of Article XVIII of the Constitution
of 1987, two requisites, one negative and the other positive, must concur, to wit:
1. The separation must not be for cause, and
2. The separation must be due to any of the three situations mentioned
above.
By its terms, the authority to remove public officials under the Provisional
Constitution ended on February 25, 1987, advanced by jurisprudence to February 2,
1987. It can only mean, then, that whatever reorganization is taking place is upon
the authority of the present Charter, and necessarily, upon the mantle of its
provisions and safeguards. Hence, it cannot be legitimately stated that we are
merely continuing what the revolutionary Constitution of the Revolutionary
Government had started. We are through with reorganization under the Freedom
Constitution - the first stage. We are on the second stage - that inferred from the
provisions of Section 16 of Article XVIII of the permanent basic document. What
must be understood, however, is that notwithstanding her immense revolutionary
powers, the President was, nevertheless, magnanimous in her rule. This is apparent
from Executive Order No. 17, which established safeguards against the strong arm
and ruthless propensity that accompanies reorganizations -notwithstanding the fact
that removals arising therefrom were "not for cause," and in spite of the fact that
such removals would have been valid and unquestionable. Noteworthy is the
injunction embodied in the Executive Order that dismissals should be made on the
basis of findings of inefficiency, graft, and unfitness to render public service.
Assuming, then, that this reorganization allows removals "not for cause" in a manner
that would have been permissible in a revolutionary setting as Commissioner Mison
so purports, it would seem that the Commissioner would have been powerless, in
any event, to order dismissals at the Customs Bureau left and right. Lastly,
reorganizations must be carried out in good faith. In this case, Mison failed to prove
that the reorganization was indeed made in good faith because he hired more
people to replace those that he fired and no legitimate structural changes have been
made. To sum up, the President could have validly removed officials before the
effectivity of the 1987 Constitution even without cause because it was a
revolutionary government. However, from the effectivity of the 1987 Constitution,
the State did not lose its right to reorganize resulting to removals but such
reorganization must be made in good faith.
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