Contents(1) Jose P. Laurel V v. Civil Service Commission (October 28, 1991; G.R. No. 71562);.............................1

(2) Juan M. Hagad v. Mercedes Gozo-Dadole (December 12, 1995; G.R. No. 108072);..........................9

(3) Sangguniang Barangay ng Don Mariano Marcos, Bayombong, Nueva Vizcaya v. Severino Martinez (March 3, 2008; G.R. No. 170626);........................................................................................................17

(4) Civil Service Commission v. Henry A. Sojor (May 22, 2008; G.R. No. 168766);.................................28

(5) Civil Service Commission v. Pedro O. Dacoycoy (April 29, 1999; G.R. No. 135805); and..................38

(6) BENJAMIN B. GERONGA V. EDUARDO VARELA (FEBRUARY 22, 2008; G.R. NO. 160846).................42

(1) Jose P. Laurel V v. Civil Service Commission (October 28, 1991; G.R. No. 71562);JOSE P. LAUREL V, in his official capacity as Provincial Governor of Batangas, petitioner, vs.CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.

Provincial Attorney for respondent.

R E S O L U T I O N

 

DAVIDE, JR., J.:p

Is the position of Provincial Administrator primarily confidential?

Does the rule on nepotism apply to designation?

May a private citizen who does not claim any better right to a position file a verified complaint with the Civil Service Commission to denounce a violation by an appointing authority of the Civil Service Law and rules?

These are the issues raised in this petition.

The antecedent facts are not disputed.

Petitioner, the duly elected Governor of the Province of Batangas, upon assuming office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in the

Office of the Governor, a non-career service position which belongs to the personal and confidential staff of an elective official. 1

On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the designation is earlier revoked. 2

On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3

On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4 to bring to its attention the "appointment" of Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his brother. He alleges therein that: (1) the position in question is a career position, (2) the appointment violates civil service rules, and (3) since the Governor authorized said appointee to receive representation allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter be investigated.

In his letter to the Chairman of the Civil Service Commission dated 18 January 1983, 5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of herein petitioner, asserts that the latter did not violate the provision prohibiting nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Senior Executive Assistant and Civil Security Officer, both are primarily confidential in nature; and, with respect to the position of Provincial Administrator:

. . . what is prohibited under Section 49 of P.D. 807 is the appointment of a relative to a career Civil Service position, like that of a provincial administrator. Governor Laurel did not appoint his brother, Benjamin, as Provincial Administrator. He merely designated him "Acting Provincial Administrator." And "appointment" and "designation" are two entirely different things. Appointment implies original establishment of official relation. Designation is the imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes a previous appointment of the officer in whom the new or additional duties are imposed.

Appointment is generally permanent, hence the officer appointed cannot be removed except for cause; designation is merely temporary and the new or additional powers may be withdrawn with or without cause.

Benjamin C. Laurel had already been appointed Senior Executive Assistant in the Office of the Governor when Governor Laurel designated him Acting Provincial Administrator.

It is further alleged that there was no violation of the Anti-Graft and Corrupt Practices Act because:

As Acting Provincial Administrator, Benjamin is entitled under Office of the President Memorandum-Circular No. 437, series of 1971, to a monthly representation allowance of P350.00. And said allowance is "strictly on reimbursement basis." 6

On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358 7 which, inter alia, revokes the designation of Benjamin as Acting Provincial Administrator on the ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism. The relevant portion of said section reads as follows:

SECTION 49. Nepotism. — (a) All appointments in 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 affinity.

(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in a confidential capacity, (2) teachers, (3) physicians, and (4) 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.

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Although what was extended to Benjamin was merely a designation and not an appointment, the Civil Service Commission ruled that "the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly." It further held that Section 24(f) of Republic Act No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service). The petitioner, therefore, could not legally and validly designate Benjamin, who successively occupied the non-career positions of Senior Executive Assistant and Civil Security Officer, to the position of Provincial Administrator, a career position under Section 4 of R.A. No. 5185.

Petitioner's motion to reconsider said Resolution, 8 based on the claim that the questioned position is primarily confidential in nature, having been denied in Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service Commission maintains that said position is not primarily-confidential in nature since it neither belongs to the personal staff of the Governor nor are the duties thereof confidential in nature considering that its principal functions involve general planning, directive and control of administrative and personnel

service in the Provincial Office, petitioner filed the instant petition invoking the following grounds:

A. Respondent Commission has committed a (sic) grave abuse of discretion amounting to lack or excess of jurisdiction when it held that the position of provincial administrator is not a primarily-confidential position because said ruling is diametrically opposed to, and in utter disregard of rulings of this Honorable Court as to what is a primarily-confidential position under Article XII-B, Sec. 2 of the Constitution.

B. Respondent Commission gravely abused its discretion and acted without jurisdiction when it arrogated unto itself the power to review a designation made by petitioner by virtue of the powers in him vested under Section 2077 of the Revised Administrative Code.

C. Respondent Commission exceeded its jurisdiction when it gave due course to the complaint of private respondent and thereafter promulgated the resolutions under question in this petition.

D. There is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law available to petitioner to have the questioned resolutions of respondent Commission reviewed and thereafter nullified, revoked and set aside, other than this recourse to a petition for certiorariunder Rule 65 of the Rules of Court.

In the Comment filed for the respondent Commission on 7 October 1985, the Solicitor General sustains the challenged resolutions and contends that the position of Provincial Administrator is intended to be part of the career system and since it requires a specific civil service eligibility, it belongs to the career service under Section 5(1) of P.D. No. 807 and has not been declared primarily confidential by the President pursuant to Section 1 of P.D. No. 868; that the Commission has the authority to review, disapprove, and set aside even mere designations, as distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants; and that it can act on Sangalang's complaint pursuant to Section 37 of P.D. No. 807, for what he filed was not an action for quo warranto, but an administrative complaint to correct a violation of the Civil Service law and rules which involved public service and the public interest. Per Benitez vs. Paredes, 10 reiterated in Tañada vs. Tuvera, 11 where the question is one of public right, the people are regarded as the real parties in interest, and the relator at whose instigation the proceedings are instituted need only show that he is a citizen and as such interested in the execution of the laws.

On 11 December 1985, petitioner filed his Reply to the Comment insisting therein that the duties, functions and responsibilities of the Provincial Administrator render said position primarily confidential in nature; the requirement of a specific service eligibility and absence of a presidential declaration that the position is primarily confidential do not place the said position in the career service; the position of Provincial Administrator is in the non-career service; and that the Benitez vs. Paredes and Tañada vs. Tuvera cases are not applicable

in this case. Petitioner insists that the controlling doctrines are those enunciated in Salazar vs. Mathay, 12 where this Court held that there are two instances when a position may be considered primarily confidential, to wit: (a) when the President, upon recommendation of the Commissioner of Civil Service (now Civil Service Commission) has declared a position to be primarily confidential; and (2) in the absence of such declaration, when by the very nature of the functions of the office, there exists close intimacy between the appointee and the appointing power which insures freedom of intercourse without embarrassment or freedom from misgiving or betrayals of personal trust or confidential matters of state and Piñero vs. Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959 Civil Service Act (R.A. No. 2260), it is the nature of the position that finally determines whether a position is primarily confidential, policy determining, or highly technical and that executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict, which must be so, or else "it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII of the Constitution."

In his Rejoinder filed on 16 December 1986, the Solicitor General states that the rulings in the Salazar and Piñerocases have been modified and superseded by Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868, which provides:

Any provision of law authorizing any official, other than the President, to declare positions policy-determining, primarily confidential or highly technical which are exempt from the Civil Service Law and rules is hereby repealed, and only the President may declare a position-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission.

The Solicitor General further asseverates that the Commissions' giving due course to the complaint of Sangalang is manifestly valid and legal for it is also in accordance with the declared policies of the State provided for in Section 2 of P.D. No. 807.

In the Resolution of 9 February 1987, this Court gave due course to the petition and required the parties to submit simultaneous memoranda.

We shall take up the issues in the order they are presented above.

1. The first issue becomes important because if the questioned position is primarily confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant case. Interestingly, however, petitioner did not raise it in the letter to the Chairman of the Civil Service Commission dated 18 January 1983. 14

On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus:

At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment of a relative to a career Civil Service position,

LIKE THAT OF PROVINCIAL ADMINISTRATOR . . . (capitalization supplied for emphasis).

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation — only to appointment. He changed his mind only after the public respondent, in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. 15

But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial Administrator is primarily confidential, is without merit.

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions, 16 to wit:

Education : Bachelor's degree preferably in Law/Public or Business Administration.

Experience : Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor).

It may be added that the definition of its functions and its distinguishing characteristics as laid down in the Manual, thus:

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2. DEFINITION:

Under the direction of the Provincial Governor, responsible for the overall coordination of the activities of the various national and local agencies in the province; and general planning, direction and control of the personnel functions and the administrative services of the Governor's Office.

3. DISTINGUISHING CHARACTERISTICS:

This is the class for top professional level management, administrative and organizational work in the operation of provincial government with highly

complex, involved relationships with considerable delegation of authority and responsibility and a high degree of public contact.

render indisputable the above conclusion that the subject position is in the career service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications, (b) opportunity for advancement to higher career positions, and (c) security of tenure. More specifically, it is an open career position, for appointment to it requires prior qualification in an appropriate examination. 17 It falls within the second major level of positions in the career service, per Section 7 of P.D. No. 807, which reads:

Sec. 7. Classes of Positions in the Career Service. — (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:

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(2) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; . . .

In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:

It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of the position which finally determines whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the Constitution.

This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:

. . . and only the President may declare a position policy-determining, highly technical or primarily confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the Presidential Reorganization Commission.

for the reason that the latter may be considered merely as the initial determination of the Executive, which in no case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the civil service under the 1973 Constitution which was then in force at the time the decree was promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is the natureof the position which finally determines whether it falls within the above mentioned classification. The 1987 Constitution

retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which arepolicy-determining, primarily confidential, or highly technical."

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20 that Salazar vs. Mathay 21 and Piñero, et al. vs. Hechanova, et al., 22 have already been modified by Section 6 of P.D. No. 807 and the third paragraph of Section 1 of P.D. No. 868.

Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism.

We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator, he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position, because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the non-competitive service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now career service).

2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. 23

Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity and the case does not fall within any of the exemptions provided therein.

Petitioner, however, contends that since what he extended to his brother is not an appointment, but a DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for:

By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly. 24

We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its

violation. The rule admits of no distinction between appointment and designation. Designation is also defined as "an appointment or assignment to a particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose or duty. 25

In Borromeo vs. Mariano, 26 this Court said:

. . . All the authorities unite in saying that the term "appoint" is well-known in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual . . . (emphasis supplied).

In Binamira vs. Garrucho, 27 this Court, per Mr. Justice Isagani M. Cruz, stated:

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated from appointment. Reading this section with Section 25 of said decree, career service positions may be filled up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose. Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly cannot be done indirectly." 28

3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil servants, 29 with the power and function to administer and enforce the Constitutional and statutory provisions on the merit system. 30 Moreover, Section 37 of the decree expressly allows a private citizen to directly file with the Civil Service Commission a complaint against a government official or employee, in which case it may hear and decide the case or may deputize any department or agency or official or group of officials to conduct an investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. This provision gives teeth to the Constitutional

exhortation that a public office is a public trust and public officers and employees must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who brings to the attention of the appropriate office any act or conduct of a government official or employee which betrays the public interest deserves nothing less than the praises, support and encouragement of society. The vigilance of the citizenry is vital in a democracy.

WHEREFORE, this petition is DENIED for lack of merit, and the challenged Resolutions of the Civil Service Commission are AFFIRMED.

Costs against petitioner.

SO ORDERED.

(2) Juan M. Hagad v. Mercedes Gozo-Dadole (December 12, 1995; G.R. No. 108072);HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner, vs.HON. MERCEDES GOZO-DADOLE, Presiding Judge, Branch XXVIII, Regional Trial Court, Mandaue City, Mandaue City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod Member RAFAEL MAYOL, respondents.

 

VITUG, J.:

The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770, 1 otherwise known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subsequent enactment of R.A. No. 7160, 2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court in this petition.

The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with RTC Case No. MDE-14. 3

Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan Hagad, now resigned, 4 who took the initiative in instituting this special civil action for certiorari and prohibition.

The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992, against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were charged with having violated R.A. No. 3019, as amended, 5 Articles 170 6 and 171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred that respondent officials,

acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.

A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede moved for the preventive suspension of respondent officials in the separately docketed administrative case.

Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President.

In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent provisions of the Constitution granting to the Ombudsman the power to investigate cases against all public officials and that, in any case, the power of the Ombudsman to investigate local officials under the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of 1991.

During the hearing on the motion for preventive suspension, the parties were directed by the Deputy Ombudsman to file their respective memoranda.

In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could lawfully take cognizance of administrative complaints against any elective official of a province, a highly urbanized city or an independent component city and to impose disciplinary sanctions, including preventive suspensions, and that there was nothing in the provision of the Constitution giving to the Office of the Ombudsman superior powers than those of the President over elective officials of local governments.

In an Order, 9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer Pedro M. Guido, until the administrative case would have been finally resolved by the Ombudsman. 10 Respondent officials were formally placed under preventive suspension by the Deputy Ombudsman pursuant to an Order 11 of 21 September 1992.

On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and temporary restraining order, was filed by respondent officials with the

Regional Trial Court of Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."

Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992, denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction, holding thusly:

So by following and applying the well-established rules of statutory construction that endeavor should be made to harmonize the provisions of these two laws in order that each shall be effective, it is the finding of this Court that since the investigatory power of the Ombudsman is so general, broad and vague and gives wider discretion to disciplining authority to impose administrative sanctions against a responsible public official or employee while that of Section 60 of the New Local Government Code provides for more well defined and specific grounds upon which a local elective official can be subjected to administrative disciplinary action, that it Could be considered that the latter law could be an exception to the authority and administrative power of the Ombudsman to conduct an investigation against local elective officials and as such, the jurisdiction now to conduct administrative investigation against local elective officials is already lodged before the offices concerned under Section 61 of Republic Act No. 7160.

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WHEREFORE, foregoing premises considered, Order is hereby issued:

1) Expanding the restraining order dated September 25, 1992 issued by the Court into an Order for the issuance of a writ of preliminary injunction upon the posting of the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00) conditioned that the latter will pay all the costs that may be adjudged to the adverse party and/or damages which he may sustain by reason of the injunction, if the Court will finally adjudge that the petitioners are not entitled thereto, and

2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of merit.

SO ORDERED. 12

A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for reconsideration made by petitioner was denied by the trial court.

The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent judge be directed to desist from further proceeding with RTC Case No. MDE-14.

There is merit in the petition.

The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the 1987 Constitution, 14 thus:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

while his statutory mandate to act on administrative complaints is contained in Section 19 of R.A. No. 6770 that reads:

Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

Section 21 of the same statute names the officials who could be subject to the disciplinary authority of the Ombudsman, viz.:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)

Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the Office of the Ombudsman correspondingly has the authority to decree preventive suspension on any public officer or employee under investigation by it. Said section of the law provides:

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.

Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman over local officials must be deemed to have been removed by the subsequent enactment of the Local Government Code of 1991 which vests the authority to investigate administrative charges, listed under Section 60 15 thereof, on various offices. In the case specifically of complaints against elective officials of provinces and highly urbanized cities, the Code states:

Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint against any erring local elective officials shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President.

Thus respondents insist, conformably with Section 63 of the Local Government Code, preventive suspension can only be imposed by: ". . . the President if the respondent is an elective official of a province, a highly urbanized or an independent component city; . . . " under sub-paragraph (b) thereof:

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

In his comment, which the Court required considering that any final resolution of the case would be a matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as having conferred, but not on an exclusive basis, on the Office

of the President (and the various Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a constitutional mandate. In passing, the Solicitor General has also opined that the appropriate remedy that should have been pursued by respondent officials is a petition forcertiorari before this Court rather than their petition for prohibition filed with the Regional Trial Court.

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored, 16 and that courts must generally assume their congruent application. 17 The two laws must be absolutely incompatible, 18 and a clear finding thereof must surface, before the inference of implied repeal may be drawn. 19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. 20 The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. 21 Hence, all doubts must be resolved against any implied repeal, 22 and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. 23

Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom." 24

Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local Government Code of 1983, 25 under the heading of "Suspension and Removal," read:

Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective officials shall be prepared as follows:

(a) Against any elective provincial or city official, before the Minister of Local Government.

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to

the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension.

The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President.

Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when he caused the issuance of the preventive suspension order without any hearing.

The contention is without merit. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventivesuspension would occur prior to any finding of guilt or

innocence. In the early case of Nera vs. Garcia, 26reiterated in subsequent cases, 27 we have said:

In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.

Moreover, respondent officials were, in point of fact, put on preventive suspension only after petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier, 28 that the evidence of guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:

After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is the holding of this office that the evidence of guilt against the respondents in the instant case is strong. There is no question that the charge against the respondents involves dishonesty or gross misconduct which would warrant their removal from the service and there is no gainsaying the fact that the charge for falsification of veritable documents like city ordinances are very serious charges that affect the very foundations of duly established representative governments. Finally, it is likewise the holding of this office at this stage that the continued stay in office of respondents may prejudice the judicious investigation and resolution of the instant case. 29

Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition for prohibition, being an application for remedy against the findings of petitioner contained in his 21 September 1992 order, should not have been entertained by the trial court. The proscription in Section 14 of R.A. No. 6770 reads:

Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.

Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court on matters involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman; thus:

Sec. 27. Effectivity and Finality of Decisions. — . . .

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the petition.

WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs.

SO ORDERED.

(3) Sangguniang Barangay ng Don Mariano Marcos, Bayombong, Nueva Vizcaya v. Severino Martinez (March 3, 2008; G.R. No. 170626);D E C I S I O N

  CHICO-NAZARIO, J.:                                                                                                 

          This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, assailing the Orders dated 20 October 2005[1] and 30 November 2005[2] of

the Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya,

in Special Civil Action No. 6727.  In its assailed Orders, the trial court ruled that

the Sangguniang Bayan ofBayombong, Neuva Vizcaya (Sangguniang Bayan),

exceeded its jurisdiction when it imposed upon respondent Severino Martinez the

administrative penalty of removal from office.

 

Petitioner Sangguniang Barangay is the legislative body of Barangay Don

Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit created,

organized and existing as such under pertinent laws of the Republic of

the Philippines. Respondent Martinez is the incumbent Punong Barangay of the

said local government unit.[3]

 

On 5 November 2004, Martinez was administratively charged with

Dishonesty and Graft and Corruption by petitioner through the filing of a verified

complaint before theSangguniang Bayan as the disciplining authority over

elective barangay officials pursuant to Section 61[4] of Rep. Act No. 7160,

otherwise known as the Local Government Code.  Petitioner filed with

the Sangguniang Bayan an Amended Administrative Complaint

against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and

Violation of the Anti-Graft and Corrupt Practices Act.[5] Petitioner alleged

that Martinez committed the following acts:

 1.  Failure to submit and fully remit to the Barangay Treasurer the

income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting.

 2.  Failure to submit/remit to the barangay treasurer the sale of

recyclable materials taken from garbage collection. 3.  Using the garbage truck for other purposes like hauling sand

and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x.

 4.  Using/spending barangay funds for repair, gasoline, lubricants,

wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x.

 5.  Unliquidated traveling expenses for Seminar/Lakbay-Aral in

2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x.

 6.  That several attempts to discuss said problem during sessions

were all in vain because respondent declined to discuss it and would adjourn the session.x x x.[6]

  

Upon his failure to file an Answer to the Amended Administrative

Complaint dated 6 December 2004, Martinez was declared by

the Sangguniang Bayan as in default. Pending the administrative

proceedings, Martinez was placed under preventive suspension for 60 days or

until 8 August 2005.[7]  

 

On 28 July 2005, the Sangguniang Bayan rendered its Decision which

imposed upon Martinez the penalty of removal from office.[8]

 

The Decision dated 28 July 2005 was conveyed to the Municipal Mayor

of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation.  On 3

August 2005,Municial Mayor Bagasao issued a Memorandum, wherein he stated

that the Sanggunaing Bayan is not empowered to order Martinez’s removal from

service.  However, the Decision remains valid until reversed and must be executed

by him.  For the meantime, he ordered the indefinite suspension of Martinez since

the period of appeal had not yet lapsed.[9]  The dispositive portion of the said

Memorandum states that:[10]

 The FOREGOING considered come AUGUST 8, 2005,

respondent SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of thePunong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160.

  

          On 26 August 2005, Martinez filed a Special Civil Action

for Certiorari with a prayer for Temporary Restraining Order and Preliminary

Injunction before the trial court against petitioner, the Sangguniang Bayan and

Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of

the Sangguniang Bayan.  This case was docketed as Special Civil Action No. 6727,

which was initially heard by Branch 28, but later raffled to Branch 27 of the trial

court.[11]

 

On 20 October 2005, the trial court issued an Order declaring the Decision

of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void.  It

maintained that the proper courts, and not the petitioner, are empowered to remove

an elective local official from office, in accordance with Section 60 of the Local

Government Code.  Thus, the Order of

the Sangguniang Bayan removing Martinez from service is void.  As a

consequence, Mayor Bagasao cannot prevent Martinez from assuming his office on

the basis of a void order.  The trial court further ruled that Martinez properly

availed himself of the remedy of Special Civil Action, where the order assailed

was a patent nullity.[12]

 

On 10 November 2005, petitioner filed a Motion for Reconsideration[13] of

the trial court’s Order dated 10 October 2005.  The trial court denied the said

motion in another Order dated 30 November 2005.[14]

 

Hence, the present petition was filed.

         

          Although Martinez’s term as Punong Baranggay expired upon the holding of

the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections

and, thus, rendering this petition moot and academic, the Court will nevertheless

settle a legal question that is capable of repetition yet evading review.[15]

 

The pivotal issue in this case is whether or not the Sangguniang Bayan may

remove Martinez, an elective local official, from office.  The pertinent legal

provisions and cases decided by this Court firmly establish that

the Sanggunaing Bayan is not empowered to do so.

 

Section 60 of the Local Government Code conferred upon the courts the

power to remove elective local officials from office:

 Section 60. Grounds for Disciplinary Actions.—An elective local

official may be disciplined, suspended, or removed from office on any of the following grounds:

 x x x x. An elective local official may be removed from office on the

grounds enumerated above by order of the proper court. (Emphasis provided.)

  

During the deliberations of the Senate on the Local Government Code,[16] the

legislative intent to confine to the courts, i.e., regional trial courts,

the Sandiganbayan and the appellate courts, jurisdiction over cases involving the

removal of elective local officials was evident:

 Senator Pimentel.  This has been reserved, Mr. President,

including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official.

 Senator Saguisag. For as long as that is open for some later

disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that  we consider replacing the phrase “PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN” simply by “COURTS.”  Kasi po, maaaring sabihinnila na mali iyong regional trial court o ang Sandiganbayan.

 Senator Pimentel. “OR THE PROPER COURT.” Senator Saguisag. “OR THE PROPER COURT.” Senator Pimentel.  Thank you.  We are willing to accept that now,

Mr. President.

 Senator Saguisag.  It is to be incorporated in the phraseology that

we will craft to capture the other ideas that have been elevated. (Emphasis provided.)

  

In Salalima v. Guingona, Jr.,[17] the Court en banc categorically ruled that

the Office of the President is without any power to remove elected officials, since

the power is exclusively vested in the proper courts as expressly provided for in the

last paragraph of Section 60 of the Local Government Code.  It further invalidated

Article 125, Rule XIX of the Rules and Regulations Implementing the Local

Government Code of 1991, which provided that:

 Article 125.  Grounds for Disciplinary Actions.  x x x. x x x x. (b)  An elective local official may be removed from office on the

grounds enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.

  

The Court nullified the aforequoted rule since the Oversight Committee that

prepared the Rules and Regulations of the Local Government Code exceeded its

authority when it granted to the “disciplining authority” the power to remove

elective officials, a power which the law itself granted only to the proper

courts.  Thus, it is clear that under the law, theSangguniang Bayan is not vested

with the power to remove Martinez.

 

Petitioner contends that administrative cases involving

elective barangay officials may be filed with, heard and decided by

the Sangguniang Panlungsod or SangguniangBayan concerned, which can,

thereafter, impose a penalty of removal from office. It further claims that the courts

are merely tasked with issuing the order of removal, after

theSangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal

is warranted.[18] 

 

The aforementioned position put forward by the petitioner would run

counter to the rationale for making the removal of elective officials an exclusive

judicial prerogative.  InPablico v. Villapando,[19] the court declared that:

 It is beyond cavil, therefore, that the power to remove erring

elective local officials from service is lodged exclusively with the courts.  Hence, Article 124 (sic 125)[20] (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the “disciplining authority” to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991.  The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage.  Their will must not be put to naught by the caprice or partisanship of the disciplining authority.  Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Emphasis supplied.)

  

The rule which confers to the proper courts the power to remove an elective local

official from office is intended as a check against any capriciousness or partisan

activity by the disciplining authority.  Vesting the local legislative body with the

power to decide whether or not a local chief executive may be removed from

office, and only relegating to the courts a mandatory duty to implement the

decision, would still not free the resolution of the case from the capriciousness or

partisanship of the disciplining authority.  Thus, the petitioner’s interpretation

would defeat the clear intent of the law.

 

          Moreover, such an arrangement clearly demotes the courts to nothing more

than an implementing arm of the Sangguniang Panlungsod,

or Sangguniang Bayan.  This would be an unmistakable breach of the doctrine on

separation of powers, thus placing the courts under the orders of the legislative

bodies of local governments.  The courts would be stripped of their power of

review, and their discretion in imposing the extreme penalty of removal from

office is thus left to be exercised by political factions which stand to benefit from

the removal from office of the local elective official concerned, the very evil which

Congress sought to avoid when it enacted Section 60 of the Local Government

Code.

 

          Congress clearly meant that the removal of an elective local official be done

only after a trial before the appropriate court, where court rules of procedure and

evidence can ensure impartiality and fairness and protect against political

maneuverings.  Elevating the removal of an elective local official from office from

an administrative case to a court case may be justified by the fact that such removal

not only punishes the official concerned but also, in effect, deprives the electorate

of the services of the official for whom they voted.

 

          As the law stands, Section 61 of the Local Government Code provides for

the procedure for the filing of an administrative case against an erring

elective barangay official before

the Sangguniang Panlungsod or Sangguniang Bayan.  However,

the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of

an erring electivebarangay official from office, as the courts are exclusively vested

with this power under Section 60 of the Local Government Code.  Thus, if the acts

allegedly committed by thebarangay official are of a grave nature and, if found

guilty, would merit the penalty of removal from office, the case should be filed

with the regional trial court.  Once the court assumes jurisdiction, it retains

jurisdiction over the case even if it would be subsequently apparent during the trial

that a penalty less than removal from office is appropriate.  On the other hand, the

most extreme penalty that

the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring

elective barangay official is suspension; if it deems that the removal of the official

from service is warranted, then it can resolve that the proper charges be filed in

court.

 

Petitioner alleged that an interpretation which gives the judiciary the power

to remove local elective officials violates the doctrine of separation of

powers.  This allegation runs contrary to the 1987 Constitution itself, as well as

jurisprudence.

 

The 1987 Constitution is explicit in defining the scope of judicial power.  It

establishes the authority of the courts to determine in an appropriate action the

validity of acts of the political departments.  It speaks of judicial prerogative in

terms of duty.[21]  Paragraph 2, Section 1, Article VIII of the 1987 Constitution,

provides that:

             Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis provided.)  

The doctrine of separation of powers is not absolute in its application; rather,

it should be applied in accordance with the principle of checks and balances.  The

removal from office of elective officials must not be tainted with partisan politics

and used to defeat the will of the voting public.  Congress itself saw it fit to vest

that power in a more impartial tribunal, the court.  Furthermore, the local

government units are not deprived of the right to discipline local elective officials;

rather, they are prevented from imposing the extreme penalty of dismissal.

 

Petitioner questions the Decision dated 20 October 2005 of the trial court for

allowing the petition filed before it as an exception to the doctrine of exhaustion of

administrative remedies.  If, indeed, the Sangguniang Bayan had no power to

remove Martinez from office, then Martinez should have sought recourse from

the SangguniangPanlalawigan.  This Court upholds the ruling of the trial court.

 

The doctrine of exhaustion of administrative remedies calls for resort first to

the appropriate administrative authorities in the resolution of a controversy falling

under their jurisdiction before the same may be elevated to the courts of justice for

review.  Non-observance of the doctrine results in lack of a cause of action, which

is one of the grounds allowed by the Rules of Court for the dismissal of the

complaint.[22]

 

The doctrine of exhaustion of administrative remedies, which is based on

sound public policy and practical consideration, is not inflexible.  There are

instances when it may be dispensed with and judicial action may be validly

resorted to immediately.  Among these exceptions are: 1) where there

is estoppel on the part of the party invoking the doctrine; 2) where the challenged

administrative act is patently illegal, amounting to lack of jurisdiction; 3)

where there is unreasonable delay or official inaction that will irretrievably

prejudice the complainant; 4)  where the amount involved is relatively small as to

make the rule impractical and oppressive; 5) where the question raised is purely

legal and will ultimately have to be decided by the courts of justice; 6) where

judicial intervention is urgent; 7) where its application may cause great and

irreparable damage; 8) where thecontroverted acts violate due process; 9) when the

issue of non-exhaustion of administrative remedies has been rendered moot; 10)

where there is no other plain, speedy and adequate remedy; 11) when strong public

interest is involved; and 13) in quo warranto proceedings.[23]

 

As a general rule, no recourse to courts can be had until all administrative

remedies have been exhausted.  However, this rule is not applicable where the

challenged administrative act is patently illegal, amounting to lack of jurisdiction

and where the question or questions involved are essentially judicial.  

 

In this case, it is apparent that the Sangguniang Bayan acted beyond its

jurisdiction when it issued the assailed Order dated 28 July

2005 removing Martinez from office. Such act was patently illegal and,

therefore, Martinez was no longer required to avail himself of an administrative

appeal in order to annul the said Order of the SangguniangBayan.[24]  Thus, his

direct recourse to regular courts of justice was justified.

 

In addition, this Court in Castro v. Gloria[25] declared that where the case

involves only legal questions, the litigant need not exhaust all administrative

remedies before such judicial relief can be sought.  The reason behind providing an

exception to the rule on exhaustion of administrative remedies is that issues of law

cannot be resolved with finality by the administrative officer.  Appeal to the

administrative officer would only be an exercise in futility.  A legal question is

properly addressed to a regular court of justice rather than to an administrative

body.[26]

 

In the present case, Martinez raised before the trial court the sole issue of

whether the Sangguniang Bayan has jurisdiction over a case involving the removal

of a local elective official from office.[27]   In Martinez’s petition before the trial

court, only a legal question was raised, one that will ultimately be resolved by the

courts.  Hence, appeal to the administrative officer concerned would only be

circuitous and, therefore, should no longer be required before judicial relief can be

sought.

 

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the

assailed Decision of the Bayombong RTC in Special Civil Action No. 6727

is AFFIRMED.

 SO ORDERED.

(4) Civil Service Commission v. Henry A. Sojor (May 22, 2008; G.R. No. 168766);

THE CIVIL SERVICE COMMISSION, Petitioner, vs. HENRY A. SOJOR, Respondent.

D E C I S I O N 

REYES, R.T., J.:

IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally

granted to the Civil Service Commission (CSC) over all civil servants and officials?

Does the assumption by the CSC of jurisdiction over a president of a state university violate academic

freedom?

The twin questions, among others, are posed in this petition for review on certiorari of the Decision[1] of

the Court of Appeals (CA) which annulled two (2) CSC Resolutions[2] against respondent Henry A. Sojor.

The Facts

The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows:

On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of

the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.)

No. 8292, or the "Higher Education Modernization Act of 1997," was enacted. This law mandated that a

Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC

appointed respondent as president, with a four-year term beginning September 1998 up to September

2002.[3] Upon the expiration of his first term of office in 2002, he was appointed president of the

institution for a second four-year term, expiring on September 24, 2006.[4]

On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU).[5] A Board of

Regents (BOR) succeeded the BOT as its governing body.

Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty

members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, to wit:

1. ADMC DC No. 02-20(A) - Complaint for dishonesty, grave misconduct and conduct prejudicial to

the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P.

Ragay. It was alleged that respondent approved the release of salary differentials despite the

absence of the required Plantilla and Salary Adjustment Form and valid appointments.[6]

2. ADM DC No. 02-20 - Complaint for dishonesty, misconduct and falsification of official

documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint

averred that respondent maliciously allowed the antedating and falsification of the

reclassification differential payroll, to the prejudice of instructors and professors who have

pending request for adjustment of their academic ranks.[7]

3. ADM DC No. 02-21 - Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a

former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister,

Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism

under the Administrative Code.[8]

Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of

lack of jurisdiction, bar by prior judgment and forum shopping.

He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the

non-competitive or unclassified service of the government, he was exclusively under the disciplinary

jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain,

investigate and resolve charges against him; that the Civil Service Law contained no provisions on the

investigation, discipline, and removal of presidential appointees. He also pointed out that the subject

matter of the complaints had already been resolved by the Office of the Ombudsman.[9]

Finding no sufficient basis to sustain respondent's arguments, the CSC-RO denied his motion to dismiss

in its Resolution dated September 4, 2002.[10] His motion for reconsideration[11] was likewise denied.

Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty,

Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct

Prejudicial to the Best Interest of the Service; and (3) Nepotism.[12]

Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the

same arguments in his motion to dismiss.[13] He argued that since the BOT is headed by the Committee

on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the

president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of

the jurisdiction granted to

CSC by virtue of Presidential Decree (P.D.) No. 807[14] enacted in October 1975, respondent contended

that this was superseded by the provisions of R.A. No. 8292,[15] a later law which granted to the BOT

the power to remove university officials.

CSC Disposition

In a Resolution dated March 30, 2004,[16] the CSC dismissed respondent's appeal and authorized its

regional office to proceed with the investigation. He was also preventively suspended for 90 days.

The fallo of the said resolution states:

WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby

DISMISSED. The Civil Service Commission Regional Office No. VII, Cebu City, is authorized to proceed

with the formal investigation of the cases against Sojor and submit the investigation reports to the

Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventively

suspended for ninety (90) days.[17]

In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that

his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had

concurrent jurisdiction with the BOT of the CVPC. We quote:

His appointment dated September 23, 2002 was signed by then Commission on Higher Education

(CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was

approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13,

2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of

1997), which explicitly provides that, "He (the president of a state college) shall be appointed by the

Board of Regents/Trustees, upon recommendation of a duly constituted search committee." Since the

President of a state college is appointed by the Board of Regents/Trustees of the college

concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without

doubt that Sojor, being the President of a state college (Central Visayas Polytechnic

College), is within the disciplinary jurisdiction of the Commission.

The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him

since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority,

cannot be considered. The Commission and the CVPC Board of Trustees have concurrent

jurisdiction over cases against officials and employees of the said agency. Since the three (3)

complaints against Sojor were filed with the Commission and not with the CVPC, then the former

already acquired disciplinary jurisdiction over the appellant to the exclusion of the latter agency.[18] (Emphasis supplied)

The CSC categorized respondent as a third level official, as defined under its rules, who are under the

jurisdiction of the Commission proper. Nevertheless, it adopted the formal charges issued by its

regional office and ordered it to proceed with the investigation:

Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level

official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the

Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the

CSC RO No. VII already issued the formal charges against him and found merit in the said formal

charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal

investigation of the case against Sojor in accordance with the procedure outlined in the

aforestated Uniform Rules.[19] (Emphasis supplied)

No merit was found by the CSC in respondent's motion for reconsideration and, accordingly, denied it

with finality on July 6, 2004.[20]

Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He

alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion

amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC

encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and

discipline the president of CVPC was exclusively lodged in the BOT of CVPC.

CA Disposition

On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and

desist from enforcing its Resolution dated March 30, 2004 and Resolution dated July 6, 2004.[21] Thus,

the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended.

On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of

respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from

proceeding with the administrative investigation. The dispositive part of the CA decision reads:

WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission

acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20,

2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary

injunction issued by this Court on September 29, 2004 is hereby made permanent.

SO ORDERED.[22]

The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared

that the enactment of R.A. No. 9299[23] in 2004, which converted CVPC into NORSU, did not divest the

BOT of the power to discipline and remove its faculty members, administrative officials, and

employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority

granted to it under Section 6 of R.A. No. 8292.[24] The power of the BOT to remove and discipline erring

employees, faculty members, and administrative officials as expressly provided for under Section 4 of

R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision

reads:

Power and Duties of Governing Boards. - The governing board shall have the following specific powers

and duties in addition to its general powers of administration and exercise of all the powers granted to

the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known

as the Corporation Code of the Philippines:

x x x x

to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to

remove them for cause in accordance with the requirements of due process of law.

(Emphasis added)

The CA added that Executive Order (E.O.) No. 292,[25] which grants disciplinary jurisdiction to the CSC

over all branches, subdivisions, instrumentalities, and agencies of the government, including

government-owned or controlled corporations with original charters, is a general law. According to the

appellate court, E.O. No. 292 does not prevail over R.A. No. 9299,[26] a special law.

Issues

Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT

OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN

ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY

6, 2004.[27]

Our Ruling

The petition is meritorious.

I. Jurisdiction of the CSC

The Constitution grants to the CSC administration over the entire civil service.[28] As defined, the civil

service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation.[29] It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenure. These include:(1) Open Career positions for appointment to which prior qualification in an appropriate examination is

required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

(4) Career officers, other than those in the Career Executive Service, who are appointed by the President,

such as the Foreign Service Officers in the Department of Foreign Affairs;

(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.[30]

Career positions are further grouped into three levels. Entrance to the first two levels is determined

through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service Board.[31] The positions covered by each level are:(a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-

professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and

(c) The third level shall cover positions in the Career Executive Service.[32]

On the other hand, non-career service positions are characterized by: (1) entrance not by the usual

tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with

the appointing authority or subject to his pleasure, or limited to the duration of a particular project for

which purpose employment was made.[33] The law states:The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and

(5) Emergency and seasonal personnel.[34]

It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction

over all civil service positions in the government service, whether career or non-career. From this grant

of general jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the

Civil Service.[35] We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart

from the general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and

the Commission central office (Commission Proper) is specified in the CSC rules as:

Section 4. Jurisdiction of the Civil Service Commission. - The Civil Service Commission shall hear and

decide administrative cases instituted by, or brought before it, directly or on appeal, including

contested appointments, and shall review decisions and actions of its offices and of the agencies

attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission

shall have the final authority to pass upon the removal, separation and suspension of all

officers and employees in the civil service and upon all matters relating to the conduct,

discipline and efficiency of such officers and employees.

Section 5. Jurisdiction of the Civil Service Commission Proper. - The Civil Service Commission Proper

shall have jurisdiction over the following cases:

A. Disciplinary

1. Decisions of Civil Service Regional Offices brought before it on petition for review;

2. Decisions of heads of departments, agencies, provinces, cities, municipalities and

other instrumentalities, imposing penalties exceeding thirty days suspension or fine in

an amount exceeding thirty days salary brought before it on appeal;

3. Complaints brought against Civil Service Commission Proper personnel;

4. Complaints against third level officials who are not presidential appointees;

5. Complaints against Civil Service officials and employees which are not acted

upon by the agencies and such other complaints requiring direct or

immediate action, in the interest of justice; 

6. Requests for transfer of venue of hearing on cases being heard by Civil Service

Regional Offices;

7. Appeals from the Order of Preventive Suspension; and

8. Such other actions or requests involving issues arising out of or in connection with the

foregoing enumerations.

B. Non-Disciplinary

1. Decisions of Civil Service Commission Regional Offices brought before it;

2. Requests for favorable recommendation on petition for executive clemency;

3. Protests against the appointment, or other personnel actions, involving third level

officials; and

4. Such other analogous actions or petitions arising out of or in relation with the foregoing

enumerations.

Section 6. Jurisdiction of Civil Service Regional Offices. - The Civil Service Commission Regional Offices

shall have jurisdiction over the following cases:

A. Disciplinary

1. Complaints initiated by, or brought before, the Civil Service Commission

Regional Offices provided that the alleged acts or omissions were committed

within the jurisdiction of the Regional Office, including Civil Service

examination anomalies or irregularities and the persons complained of are

employees of agencies, local or national, within said geographical areas;

2. Complaints involving Civil Service Commission Regional Office personnel who are

appointees of said office; and

3. Petitions to place respondent under Preventive Suspension.

4. Non-Disciplinary

B. Non-Disciplinary

1. Disapproval of appointments brought before it on appeal;

2. Protests against the appointments of first and second level employees brought before

it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by the governing board

of trustees of the university, is a non-career civil service officer. He was appointed by the chairman

and members of the governing board of CVPC. By clear provision of law, respondent is a non-career

civil servant who is under the jurisdiction of the CSC.

II. The power of the BOR to discipline officials and employees is not exclusive. CSC has

concurrent jurisdiction over a president of a state university.

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law

respondent was appointed during the time material to the present case, provides that the school's

governing board shall have the general powers of administration granted to a corporation. In addition,

Section 4 of the law grants to the board the power to remove school faculty members, administrative

officials, and employees for cause:

Section 4. Powers and Duties of Governing Boards. - The governing board shall have the

following specific powers and duties in addition to its general powers of administration and

the exercise of all the powers granted to the board of directors of a corporation under

Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x

h) to fix and adjust salaries of faculty members and administrative officials and employees subject to

the provisions of the revised compensation and classification system and other pertinent budget and

compensation laws governing hours of service, and such other duties and conditions as it may deem

proper; to grant them, at its discretion, leaves of absence under such regulations as it may

promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for

cause in accordance with the requirements of due process of law. (Emphasis supplied)

The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted

CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now

provides that the administration of the university and exercise of corporate powers of the board of the

school shall be exclusive:

Sec. 4. Administration. - The University shall have the general powers of a corporation set forth in

Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation Code of the

Philippines." The administration of the University and the exercise of its corporate powers

shall be vested exclusively in the Board of Regents and the president of the University

insofar as authorized by the Board.

Measured by the foregoing yardstick, there is no question that administrative power over the school

exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to

remove its erring employees and officials?

In light of the other provisions of R.A. No. 9299, respondent's argument that the BOR has exclusive

power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to

remove faculty members, employees, and officials of the university is granted to the BOR "in addition

to its general powers of administration." This provision is essentially a reproduction of Section 4 of its

predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with

the enactment of the new law. For clarity, the text of the said section is reproduced below:

Sec. 7. Powers and Duties of the Board of Regents. - The Board shall have the following specific

powers and duties in addition to its general powers of administration and the exercise of all

the powers granted to the Board of Directors of a corporation under existing laws:

x x x x

i. To fix and adjust salaries of faculty members and administrative officials and employees,

subject to the provisions of the Revised Compensation and Position Classification System and

other pertinent budget and compensation laws governing hours of service and such other

duties and conditions as it may deem proper; to grant them, at its discretion, leaves of

absence under such regulations as it may promulgate, any provision of existing law to the

contrary notwithstanding; and to remove them for cause in accordance with the

requirements of due process of law.[36](Emphasis supplied)

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is

not exclusive in the matter of disciplining and removing its employees and officials.

Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees

and officials, there is no showing that such power is exclusive. When the law bestows upon a

government body the jurisdiction to hear and decide cases involving specific matters, it is to be

presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested

with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.[37]

All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law.

Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or

non-career, a civil service official or employee is within the jurisdiction of the CSC.

This is not a case of first impression.

In University of the Philippines v. Regino,[38] this Court struck down the claim of exclusive jurisdiction of

the UP BOR to discipline its employees. The Court held then:

The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in

administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the

Commission shall have the power to "hear and decide administrative disciplinary cases instituted

directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides

that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the

imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding

thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis

supplied)

Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the

manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only

government-owned or controlled corporations with original charters fall within the scope of the Civil

Service pursuant to Article IX-B, Section 2(1), which states:

"The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the

government, including government-owned or controlled corporations with original charters."

As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service

under the 1973 Constitution and now continues to be so because it was created by a special law and

has an original charter. As a component of the Civil Service, UP is therefore governed by PD

807 and administrative cases involving the discipline of its employees come under the

appellate jurisdiction of the Civil Service Commission.[39](Emphasis supplied)

In the more recent case of Camacho v. Gloria,[40] this Court lent credence to the concurrent jurisdiction

of the CSC when it affirmed that a case against a university official may be filed either with the

university's BOR or directly with the CSC. We quote:

Further, petitioner contends that the creation of the committee by the respondent Secretary, as

Chairman of the USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no

specific provision of the Civil Service Law which was violated by the respondents in forming the

investigating committee. The Civil Service Rules embodied in Executive Order 292 recognize the power

of the Secretary and the university, through its governing board, to investigate and decide matters

involving disciplinary action against officers and employees under their jurisdiction. Of course under

EO 292, a complaint against a state university official may be filed either with the

university's Board of Regents or directly with the Civil Service Commission, although the

CSC may delegate the investigation of a complaint and for that purpose, may deputize any

department, agency, official or group of officials to conduct such investigation.[41] (Emphasis

supplied)

Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional

office, concerning violations of civil service rules against respondent.

III. Academic freedom may not be invoked when there are alleged violations of civil service

laws and rules.

Certainly, academic institutions and personnel are granted wide latitude of action under the principle

of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who

may be taught, how it shall be taught, and who may be admitted to study.[42] Following that doctrine,

this Court has recognized that institutions of higher learning has the freedom to decide for itself the

best methods to achieve their aims and objectives, free from outside coercion, except when the

welfare of the general public so requires.[43] They have the independence to determine who to accept

to study in their school and they cannot be compelled by mandamus to enroll a student.[44]

That principle, however, finds no application to the facts of the present case. Contrary to the matters

traditionally held to be justified to be within the bounds of academic freedom, the administrative

complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism,

dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best

interest of the service. These are classified as grave offenses under civil service rules, punishable with

suspension or even dismissal.[45]

This Court has held that the guaranteed academic freedom does not give an institution the unbridled

authority to perform acts without any statutory basis.[46] For that reason, a school official, who is a

member of the civil service, may not be permitted to commit violations of civil service rules under the

justification that he was free to do so under the principle of academic freedom.

Lastly, We do not agree with respondent's contention that his appointment to the position of president

of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR

of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr.[47] and Aguinaldo v. Santos[48] are inapplicable to the present circumstances. Respondents in the

mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed,

election expresses the sovereign will of the people.[49] Under the principle of vox populi est suprema

lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same

cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to

speak of when the BOR re-appointed respondent Sojor to the post of university president.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals isREVERSED and SET

ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED.

SO ORDERED.

(5) Civil Service Commission v. Pedro O. Dacoycoy (April 29, 1999; G.R. No. 135805); and

D E C I S I O N

PARDO, J.:

The case before us is an appeal via certiorari interposed by the Civil Service Commission from a decision of the Court of Appeals ruling that respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Commission’s resolution dismissing him from the service as Vocational School Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar.

The facts may be succinctly related as follows:

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.[1]

After the fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent, and, on March 5, 1996, issued the corresponding formal charge against him.[2] Accordingly, the Civil Service Commission conducted a formal investigation, and, on January 28, 1997, 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.[3]

On February 25, 1997, respondent Dacoycoy filed a motion for reconsideration;[4] however, on May 20, 1997, the Civil Service Commission denied the motion.[5]

On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunction[6] to set aside the Civil Service Commission’s resolutions.

On July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission, ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism.  The Court further held that it is “the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.”[7]

Hence, this appeal.

On November 17, 1998, we required respondent to comment on the petition within ten (10) days from notice.[8] On December 11, 1998, respondent filed his comment

We give due course to the petition.

The basic issue raised is the scope of the ban on nepotism.

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service.

The law defines nepotism[9] 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.  Mr. Daclag's authority to recommend the appointment of first level positions such as watchmen, security guards, drivers, utility workers, and casuals and emergency laborers for short durations of three to six months was recommended by respondent Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the provision that such positions shall be under Mr. Daclag’s immediate supervision.  On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the school.  On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual utility worker.  However, it was respondent Dacoycoy who certified that “funds are available for the proposed appointment of Rito Dacoycoy” and even rated his performance as “very satisfactory”.  On the other hand, his son Ped stated in his position description form that his father was “his next higher supervisor”.  The circumvention of the ban on nepotism is quite obvious.  Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator.  He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision.  Then Mr. Daclag recommended the appointment of 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.

At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an

administrative civil service disciplinary case.  There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.[10] He was the respondent official meted out the penalty of dismissal from the service.  On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent[11] as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service.[12]

Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism.  Who now may appeal the decision of the Court of Appeals to the Supreme Court?  Certainly not the respondent, who was declared not guilty of the charge.  Nor the complainant George P. Suan, who was merely a witness for the government.[13]Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system.  Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court.[14] By this ruling, we now expressly abandon and overrule extant jurisprudence that “the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office”[15] and not included are “cases where the penalty imposed is suspension for not more then thirty (30) days or fine in an amount not exceeding thirty days salary”[16] or “when the respondent is exonerated of the charges, there is no occasion for appeal.”[17] In other words, we overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges” enunciated in Paredes v. Civil Service Commission;[18] Mendez v. Civil Service Commission;[19] Magpale v. Civil Service Commission;[20] Navarro v. Civil Service Commission and Export Processing Zone Authority[21] and more recently Del Castillo v. Civil Service Commission[22]

The Court of Appeals’ reliance on Debulgado vs. Civil Service Commission, [23] to support its ruling is misplaced.  The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment.  Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative.  Precisely, in Debulgado, the Court emphasized that Section 59 “means exactly what it says in plain and ordinary language: x x x The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.”[24]

Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel.  In Debulgado, we stressed that “[T]the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one.”[25] “The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive.” [26] If not within the

exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head.  As we said in an earlier case “what we need now is not only to punish the wrongdoers or reward the ‘outstanding’ civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law.”[27]

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711.

ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

No costs.

SO ORDERED.

(6) BENJAMIN B. GERONGA V. EDUARDO VARELA (FEBRUARY 22, 2008; G.R. NO. 160846).BENJAMIN B. GERONGA, Petitioner, vs. HON. EDUARDO VARELA, as City Mayor of

Cadiz City, Respondent.

D E C I S I O N 

AUSTRIA-MARTINEZ, J.:

The Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Benjamin B. Geronga

(petitioner) assails that portion of the October 15, 2002 Joint Decision[1] of the Court Appeals (CA)

affirming his dismissal from the service under Resolution No. 992107[2] dated September 17, 1999 and

Resolution No. 000715[3]dated March 21, 2000 of the Civil Service Commission (CSC); as well as the

October 1, 2003 CA Resolution[4] denying his Motion for Reconsideration.

The facts are of record.

Petitioner works as Engineer IV at the General Services Department of the local government of Cadiz

City. In 1996, he was involved in two administrative cases: 1) Administrative Case No. 96-04[5] for

Unjust Vexation, Contempt, Insubordination, Conduct Unbecoming a Public Officer, and Alarm and

Scandal; and 2) Administrative Case No. 96-05[6] for Grave Misconduct and Engaging in Partisan

Political Activity. Impleaded with petitioner in Administrative Case No. 96-05 were Edwin Nuyad

(Nuyad) and Nick Ambos (Ambos), also employees of the local government of Cadiz City.

The two administrative cases were referred by Cadiz City Mayor Eduardo Varela (respondent) to City

Legal Officer Marcelo R. del Pilar (Del Pilar) for investigation. After investigation, Del Pilar issued in

Administrative Case No. 96-04 a Resolution/Recommendation dated December 1, 1997 for the

dismissal of petitioner for grave misconduct.[7] In Administrative Case No. 96-05, Del Pilar issued a

separate Resolution/Recommendation dated December 4, 1997, recommending the dismissal of

petitioner, Nuyad and Ambos for grave misconduct and partisan politics.[8]Respondent approved both

recommendations.[9]

Consequently, on January 8, 1998, respondent issued to petitioner Memorandum Order No. 98-V-05,

addressed to petitioner, to wit:

Attached is a copy of the Resolution/Recommendation of the City Legal Officer which this office has

approved in toto and considered an integral part hereof.

We find the recommendation as contained therein to be just and proper under the

premises.

In view hereof, you are hereby meted a penalty of dismissal from the service as recommended

effective January 09, 1998.

For strict compliance.[10] (Emphasis supplied.)

Petitioner received copy of Memorandum Order No. 98-V-05 on January 9, 1998.[11]Without assistance

of counsel, petitioner filed with the CSC a Notice of Appeal, stating:

Appellant respectfully serves notice that he is appealing his DISMISSAL FROM SERVICE by the City

Mayor of Cadiz City, Negros Occidental, Eduardo G. Varela, contained in the latter's Memorandum

Order No. 98-V-05 dated January 08, 1998.[12] (Emphasis supplied.)

Still without assistance of counsel, petitioner, together with Nuyad and Ambos, filed a Joint

Memorandum in which he discussed Administrative Case No. 96-05 only, and completely omitted

reference to Administrative Case No. 96-04.[13]

Acting on the appeal, the CSC issued Resolution No. 990717 dated March 25, 1999, thus:

WHEREFORE, the appeal of Edwin Nuyad, Nick Ambos and [petitioner] is hereby granted. Accordingly,

Mayor Eduardo G. Varela is directed to reinstate Nuyad, Ambos and [petitioner] to their former

positions or, if no longer available, to comparable positions.[14]

Respondent filed a Motion for Reconsideration,[15] questioning the order to reinstate Nuyad, Ambos and

petitioner. Respondent pointed out that petitioner cannot be reinstated anymore because the latter

failed to appeal from his dismissal in Administrative Case No. 96-04, which consequently became final

and executory.

The CSC partly granted the Motion for Reconsideration of respondent in Resolution No. 992107, to wit:

WHEREFORE, the Motion for Reconsideration of Mayor Eduardo G. Varela is partly granted.

His prayer for the reversal of CSC Resolution No. 990717 dated March 25, 1999 is hereby

denied. However, his request for the non-reinstatement of [petitioner] in view of the finality

of the decision in Administrative Case No. 96-04, finding [petitioner] guilty of Grave

Misconduct for which he was meted out the penalty of dismissal from the service is

granted.

Accordingly, CSC Resolution No. 990717 dated March 25, 1999 is hereby modified insofar as the non-

reinstatement of [petitioner] is concerned. In all other matters, the said resolution stands.[16](Emphasis

supplied.)

Both petitioner and respondent filed Motions for Reconsideration[17] but the CSC denied the same in

Resolution No. 000715.[18] They filed with the CA separate Petitions for Review,[19] which were later

consolidated.[20]

In the October 15, 2002 Joint Decision[21] assailed herein, the CA dismissed both petitions and affirmed

CSC Resolutions No. 992107 and No. 000715.

Only petitioner filed a Motion for Reconsideration[22] which the CA denied in its October 1, 2003

Resolution.[23]

Petitioner is now before this Court, seeking resolution of the following issues:

1. Whether or not the dismissal of the petitioner under Memorandum Order No. 98-V-05

constitutes a denial of his constitutional right to due process;

2. Whether or not the petitioner was denied due process under the Resolution/Recommendation

of the City Legal Officer in Adm. Case No. 96-04 as adopted in toto by the City Mayor;

3. Whether or not the dismissal of the petitioner became final for failure to appeal;

4. Whether or not the Civil Service Commission acted properly and within the bounds of its own

rules and regulations in entertaining the motion for reconsideration of Mayor Varela from its

Resolution No. 990714 dated March 25, 1999; and

5. Whether or not the Court of Appeals erred in upholding the dismissal of the petitioner.[24]

We shall first resolve the fourth issue – whether the CSC may entertain respondent's motion for

reconsideration of its decision exonerating petitioner.

Petitioner points out that after ordering his exoneration under Resolution No. 990717, the CSC could

no longer entertain a motion for reconsideration filed by respondent who is not even a proper party.

He argues that in acting upon the motion for reconsideration of respondent and worse, in modifying

Resolution No. 990717, the CSC violated Section 38, Rule III, in relation to Section 2(l), Rule I of

Memorandum Circular No. 19, series of 1999 or the Uniform Rules on Administrative Cases in the Civil

Service (URACCS); and the CA erred in affirming it.[25]

Petitioner is mistaken.

Sections 37 (a) and 39 of Presidential Decree (P.D.) No. 807,[26]otherwise known as The Philippine Civil

Service Law, provide:

Section 37. – (a) The Commission shall decide upon appeal all administrative disciplinary cases

involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount

exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office x

x x.

Section 39. – (a) Appeals, where allowable, shall be made by the party adversely affected by the

decision within fifteen days from receipt of the decision unless a petition for reconsideration is

seasonably filed, which petition shall be decided within fifteen days x x x. (Emphasis supplied.)

In addition, Section 47 of Executive Order (E.O.) No. 292 (The Administrative Code of 1987)[27] reiterates that the CSC may entertain appeals only from (a) a penalty of suspension of more than

thirty days; or (b) a fine in an amount exceeding thirty days’ salary; or (c) demotion in rank or salary or

transfer; or (d) removal or dismissal from office.

Interpreting the foregoing provisions, the Court has earlier held that, in an administrative case, only a

decision involving the imposition of a penalty of suspension of more than 30 days, fine exceeding 30-

day salary, demotion, transfer, removal or dismissal is appealable to the CSC; hence, a decision

exonerating an employee cannot be appealed.[28] Moreover, given the nature of the appealable

decision, only said employee would qualify as the “party adversely affected” who is allowed to appeal;

other persons, such as the appointing or disciplining authorities, cannot appeal.[29]

Consonant with the foregoing interpretation, the CSC adopted Section 2(l), Rule I and Section 38, Rule

III of the URACCS[30] in implementation of the pertinent

provisions of P.D. No. 807 and E.O. No. 292,[31] to wit:

Section 2. Coverage and Definition of Terms. x x x (l) PARTY ADVERSELY AFFECTED refers to the

respondent against whom a decision in a disciplinary case has been rendered.

x x x x

Section 38. Filing of Motion for Reconsideration. - The party adversely affected by the decision may file

a motion for reconsideration with the disciplining authority who rendered the same within fifteen (15)

days from receipt thereof

The present view is different. In a long line of cases,[32] beginning with Civil Service Commission v.

Dacoycoy,[33] this Court has maintained that a judgment of exoneration in an administrative case is

appealable, and that the CSC,[34] as the agency mandated by the Constitution to preserve and

safeguard the integrity of our civil service system, and/or the appointing authority, such as a

mayor[35] who exercises the power to discipline or remove an erring employee, qualifies as parties

adversely affected by the judgment who can file an appeal. The rationale for this is explained in the

concurring opinion of Associate Justice now Chief Justice Reynato S. Puno in Civil Service Commission

v. Dacoycoy:

In truth, the doctrine barring appeal is not categorically sanctioned by the Civil Service Law. For what

the law declares as “final” are decisions of heads of agencies involving suspension for not more than

thirty (30) days or fine in an amount not exceeding thirty (30) days salary x x x. It is thus non sequitur

to contend that since some decisions exonerating public officials from minor offenses can not be

appealed, ergo, even a decision acquitting a government official from a major offense like nepotism

cannot also be appealed.[36]

Thus, through Resolution No. 021600,[37] the CSC amended the URACCS, by allowing the disciplining

authority to appeal from a decision exonerating an erring employee, thus:

Section 2. Coverage and Definition of Terms. – x x x (l) PARTY ADVERSELY AFFECTED refers to the

respondent against whom a decision in a disciplinary case has been rendered or to the disciplining

authority in an appeal from a decision exonerating the said employee.

In fine, the exoneration of petitioner under CSC Resolution No. 990717 may be subject to a motion for

reconsideration by respondent who, as the appointing and disciplining authority, is a real party in

interest. The CSC acted within the rubric ofCivil Service Commission v. Dacoycoy in allowing said

motion for reconsideration.

The next question then is whether the CSC was correct in granting the motion for reconsideration of

respondent, and the CA, in agreeing with it.

The CA and CSC declared as final and executory the decision of respondent in Administrative Case No.

96-04, finding petitioner guilty of grave misconduct and sentencing him with a penalty of dismissal

from government service, on the sole ground that the latter failed to appeal from said decision. The

CSC found:

x x x It is worthy to note that a copy of the Decision dated December 1, 1997 in Administrative Case

No. 96-04 issued by [respondent[ was received by [petitioner] himself on January 9, 1998. This is very

apparent on the face of the Decision. Hence, upon receipt of the same, [petitioner] had the option

whether or not to bring the said decision on appeal to the Commission. Considering that he failed to

appeal the said Decision within the prescribed period of fifteen (15) days from receipt hereof, the same

became final and executory.[38] (Emphasis supplied.)

The CA added that the appeal which petitioner interposed from the decision in Administrative Case No.

96-05 cannot be treated also as an appeal from the decision in Administrative Case No. 96-04 because

the “Joint Memorandum before the CSC mentions only Administrative Case No. 96-05, not

Administrative Case No. 96-04.”[39]

The Court does not completely agree.

The CSC is under the impression that in Administrative Case No. 96-04, respondent issued a “Decision

dated December 1, 1997,” and that it is said decision which petitioner should have appealed. The CA

shared the notion. Both are wrong. What is dated December 1, 1997 is merely the

Resolution/Recommendation issued by Del Pilar in Administrative Case No. 96-04. The formal decision

of respondent is Memorandum Order No. 98-V-05 dated January 8, 1998.

There is a material difference between a mere recommendation to dismiss an employee and an

administrative decision/resolution sentencing him with dismissal.

Under Section 35,[40] Rule III of the URACCS, a recommendation to dismiss is that contained in a formal

investigation report issued by a hearing or investigating officer and submitted to the disciplining

authority for approval. Falling under this category are the December 1, 1997

Recommendation/Resolution in Administrative Case No. 96-04 and the December 4, 1997

Recommendation/Resolution in Administrative Case No. 96-05 issued by Del Pilar as investigating

officer. While they contain the approval of respondent as disciplining authority, both

Recommendations/Resolutions merely state findings of probable cause that petitioner is guilty of the

administrative charges filed against him, and recommend that he be dismissed. As we held in Rubio v.

Munar,[41]such recommendations are not the proper subject matter of an appeal to the CSC.

In contrast, a decision/resolution of dismissal is that rendered by the disciplining authority after receipt

of the recommendation of the investigating/ hearing officer,[42]and on the basis of his independent

assessment of the case.[43] Memorandum Order No. 98-V-05 is one. It was issued by respondent after

receipt of the recommendations of Del Pilar. While it incorporates by reference said recommendations,

Memorandum Order No. 98-V-05 goes further by categorically declaring petitioner guilty of the

administrative charges and imposing upon him the penalty of dismissal. It is therefore the decision

rendered by respondent as disciplining authority which may be appealed or be subject of execution, if

already final.[44]

Furthermore, it bears emphasis that Memorandum Order No. 98-V-05 is the decision of respondent not

just in Administrative Case No. 96-05 but also in Administrative Case No. 96-04. While the language

employed in Memorandum Order No. 98-V-05 refers to a singular “Resolution/Recommendation” of Del

Pilar, what were actually attached to the Memorandum were the December 1, 1997

Resolution/Recommendation in Administrative Case No. 96-04 and the December 4, 1997 Resolution in

Administrative Case No. 96-05. These attachments were served on petitioner and personally received

by him on January 9, 1998 at 5 o'clock in the afternoon, at exactly the same date and time he received

Memorandum Order No. 98-V-05.[45]

Thus, Memorandum Order No. 98-V-05 being the decision of respondent in both Administrative Case

No. 96-04 and Administrative Case No. 96-05, it is crucial to emphasize that in the Notice of Appeal

which petitioner filed, he distinctly stated that what he is appealing to the CSC is his dismissal as

“contained in [respondent's] Memorandum Order No. 98-V-05 dated January 08, 1998.”[46] By so doing,

petitioner effectively included in his appeal not just Administrative Case No. 96-05 but also

Administrative Case No. 96-04. Therefore, respondent erred in concluding that Administrative Case No.

96-04 had become final and executory for failure of petitioner to appeal the same to the CSC.

Unfortunately for petitioner, the CA and CSC did not anymore look into the merits of the decision in

Administrative Case No. 96-04 simply because he raised no issue or argument against it.[47] Understandably, the CA and CSC could not be faulted for doing so; they were merely adhering to a

basic rule that in any proceeding, a party who fails to cite specific grounds or raise particular

arguments is deemed to have waived them.[48]

Such rule, however, is not sacrosanct. It yields to the imperatives of equity, which often arise in

administrative cases where at stake is the security of tenure of labor, the protection of which no less

than the Constitution guarantees.[49] Deprivation of security of tenure may be justified only for the

causes specified and in the manner prescribed by law. Should there be doubt in the legality of either

cause or mode of dismissal, public interest demands the resolution of the doubt wholly on its

substance, rather than solely on technical minutiae.[50]

In Philippine Amusement and Gaming Corporation v. Angara,[51] the respondents-employees failed to

appeal from a decision in which the CSC ordered their reinstatement but omitted to award them

backwages. The Court condoned their technical lapse and granted their belated claim so as to fulfill

the guarantee of monetary compensation which the law itself extends to those arbitrarily dismissed.

Also, in Constantino-David v. Pangandaman-Gania,[52] the respondent-employee failed to question a

CSC resolution which omitted to award her backwages. Despite said resolution having attained

finality, the Court allowed its modification so as to entitle the respondent-employee to backwages:

To prevent respondent from claiming back wages would leave incomplete the redress of the illegal

dismissal that had been done to her and amount to endorsing the wrongful refusal of her employer or

whoever was accountable to reinstate her. A too-rigid application of the pertinent provisions of

the Revised Uniform Rules on Administrative Cases in the Civil Service as well as the Rules of Court will

not be given premium where it would obstruct rather than serve the broader interests of justice in the

light of the prevailing circumstances in the case under consideration.[53]

So too must the Court allow petitioner redress from the decision of respondent in Administrative Case

No. 96-04. While petitioner, unaided by legal counsel, may have omitted to raise specific grounds

against the decision insofar as Administrative Case No. 96-04 is concerned, it cannot be denied that he

intended to appeal from it. The least he deserves then is a scrutiny of the legal and factual bases of his

dismissal.

As it turns out, upon review, said decision, insofar as it relates to Administrative Case No. 96-04, is

patently void.

Two fundamental requirements[54] of due process in administrative cases are that a person must be

duly informed of the charges against him; and that he cannot be convicted of an offense or crime with

which he was not charged.[55] A deviation from these requirements renders the proceeding invalid and

the judgment issued therein a lawless thing that can be struck down anytime.[56]

In the present case, the records of Administrative Case No. 96-04 reveal that petitioner was dismissed

for an act which was not alleged in the administrative charge filed against him.

Administrative Case No. 96-04 sprung from a Sworn Complaint[57] dated March 15, 1996 filed by

Rodrigo Mateo (Mateo) against petitioner for unjust vexation, gross misconduct, insubordination,

conduct unbecoming a public officer and alarm and scandal,[58] allegedly committed through the

following acts: a) his refusal to comply with several orders issued by respondent and Mateo for the

filing of daily time records;[59] and b) his having challenged Mateo to a fistfight.[60] The

Subpoena[61]which Del Pilar issued to petitioner required the latter to answer the incidents cited by

Mateo in his Sworn Complaint. Even the evidence which Del Pilar summarized in his December 1, 1997

Resolution/Recommendation pertains solely to said incidents.[62]

Surprisingly, the conclusion which Del Pilar arrived at in his December 1, 1997

Resolution/Recommendation, and which became the basis of the dismissal of petitioner, has no

bearing whatsoever on the offenses with which the latter was charged under the Sworn Complaint nor

to the incidents/acts described therein. Rather, the conclusion pertains solely to the alleged

defamatory statements which petitioner made in his April 1, 1996 Letter-Answer to the Sworn

Complaint, thus:

That respondent having failed and refused to file his answer in the above-entitled case, this office has

to resolve the case on the basis of the evidence on records [sic].

There is no doubt that the findings of the City Prosecutor’s Office, Cadiz City, of probable cause for

libel on the basis of the communication of April 1, 1996 by [petitioner] cannot be disturbed x x x. It

appears that the defamation against complainant Mateo contained in said letter dated April 1, 1996 by

[petitioner] is not considered privilege communication as found by the Cadiz City Prosecutor's

Office. Such an act of [petitioner] in defaming complainant Mateo in a letter dated April 1,

1996 sent to this office furnishing copies of said letter to the City Mayor Eduardo G. Varela,

Atty. Abelardo Gayatin, Jr., and Atty. Jessie Caberoy of the Civil Service Commission

instead of filing an answer to complaint filed against him no doubt constitute[s] Grave

Misconduct which would warrant dismissal from the government service.[63] (Emphasis

supplied.)

Nowhere in the records of Administrative Case No. 96-04 does it appear that petitioner was charged

with grave misconduct, or that he was held to answer for his alleged defamatory statements in his

April 1, 1996 letter. Thus, the December 1, 1997 Resolution/Recommendation of Del Pilar dismissing

petitioner on that ground, and Memorandum Order No. 98-V-05 of respondent approving said

resolution/ recommendation were issued in utter contempt of the right of petitioner to due process.

Both are void ab initio and should be treated as inexistent[64] -- it is as if no December 1, 1997

Resolution/Recommendation was issued in Administrative Case No. 96-04, and therefore,

Memorandum Order No. 98-V-05 could not have approved and adopted a void

resolution/recommendation. In effect, there was nothing for petitioner to appeal from in Administrative

Case No. 96-04.

Therefore, Memorandum Order No. 98-V-05 and the December 1, 1997 Resolution/Recommendation

constituted an unlawful deprivation of petitioner's security of tenure, insofar as Administrative Case

No. 96-04 is concerned. The CA and CSC gravely erred in upholding them.

That said, however, the nullity of Memorandum Order No. 98-V-05 and the December 1, 1997

Resolution/Recommendation leaves Administrative Case No. 96-04 unresolved. Although the Court

may already decide said case based on the records before us, the better policy is for us to defer to the

prerogative granted under Section 17,[65] Rule 3 of the Rules of Court, to the primary disciplining

authority, the incumbent mayor of Cadiz City,[66] whether or not to pursue said administrative case.

WHEREFORE, the petition is GRANTED. The Court of Appeals Joint Decision dated October 15, 2002

and Resolution dated October 1, 2003 are REVERSED and SET ASIDE only insofar as Benjamin B.

Geronga is concerned; Civil Service Commission Resolution No. 992107 dated September 17, 1999 and

Resolution No. 000715 dated March 21, 2000 are ANNULLED. The December 1, 1997

Resolution/Recommendation of Cadiz City Legal Officer Marcelo R. del Pilar and Memorandum Order

No. 98-V-05 of Cadiz City Mayor Eduardo Varela in Administrative Case No. 96-04 are alsoANNULLED.

Administrative Case No. 96-04 is REMANDED to the incumbent city mayor of Cadiz City for proper

disposition.

No costs.

SO ORDERED.