Javellana v. v. DILGG.R. No. 102549 August 10, 1992Grio-Aquino, J.Facts: Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental. On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No. C-10-90 against Javellana for: (1) violation of Department of Local Government (DLG) Memorandum Circular No. 80-38 dated June 10, 1980 in relation to DLG Memorandum Circular No. 74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, and (2) for oppression, misconduct and abuse of authority.Divinagracias complaint alleged that Javellana, an incumbent member of the City Council or Sanggunian Panglungsod of Bago City, and a lawyer by profession, has continuously engaged in the practice of law without securing authority for that purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same department; that on July 8, 1989, Javellana, as counsel for Antonio Javiero and Rolando Catapang, filed a case against City Engineer Ernesto C. Divinagracia of Bago City for Illegal Dismissal and Reinstatement with Damages putting him in public ridicule; that Javellana also appeared as counsel in several criminal and civil cases in the city, without prior authority of the DLG Regional Director, in violation of DLG Memorandum Circular No. 80-38. On August 13, 1990, a formal hearing of the complaint was held in Iloilo City in which the complainant, Engineer Divinagracia, and the respondent, Councilor Javellana, presented their respective evidence.Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to continue his practice of law for the reasons stated in his letter-request. On September 21, 1991, Secretary Luis T. Santos issued Memorandum Circular No. 90-81 setting forth guidelines for the practice of professions by local elective officials. In an order dated May 2, 1991, Javellanas motion to dismiss was denied by the public respondents. His motion for reconsideration was likewise denied on June 20, 1991.Five months later or on October 10, 1991, the Local Government Code of 1991 (RA 7160) was signed into law, Section 90 of which provides:Sec. 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.Issue: whether or not DLG Memorandum Circulars Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the sole and exclusive authority to regulate the practice of law Held: No. Petitioners contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Courts power and authority to prescribe rules on the practice of law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it.G.R. No. 93661 September 4, 1991

SHARP INTERNATIONAL MARKETING, petitioner, vs.HON. COURT OF APPEALS (14th Division), LAND BANK OF THE PHILIPPINES and DEOGRACIAS VISTAN, respondents.Brillantes, Nachura, Navarro & Arcilla Law Office and Yap, Apostol, Bandon & Gumaro for petitioner.

Miguel M. Gonzales and Norberto L. Martinez for private respondents.

CRUZ, J.:pThis case involves the aborted sale of the Garchitorena estate to the Government in connection with the Comprehensive Agrarian Reform Program. This opinion is not intended as a pre-judgment of the informations that have been filed with the Sandiganbayan for alleged irregularities in the negotiation of the said transaction. We are concerned here only with the demand of the petitioner that the private respondents sign the contract of sale and thus give effect thereto as a perfected agreement. For this purpose, we shall determine only if the challenged decision of the Court of Appeals denying that demand should be affirmed or reversed.

The subject-matter of the proposed sale is a vast estate consisting of eight parcels of land situated in the municipality of Garchitorena in Camarines Norte and with an area of 1,887.819 hectares. The record shows that on April 27, 1988, United Coconut Planters Bank (UCPB) entered into a Contract to Sell the property to Sharp International Marketing, the agreement to be converted into a Deed of Absolute Sale upon payment by the latter of the full purchase price of P3,183,333.33. On May 14, 1988, even before it had acquired the land, the petitioner, through its President Alex Lina, offered to sell it to the Government for P56,000,000.00, (later increased to P65,000,000.00). Although the land was still registered in the name of UCPB, the offer was processed by various government agencies during the months of June to November, 1988, resulting in the recommendation by the Bureau of Land Acquisition and Distribution in the Department of Agrarian Reform for the acquisition of the property at a price of P35,532.70 per hectare, or roughly P67,000,000.00. On December 1, 1988, a Deed of Absolute Sale was executed between UCPB and Sharp by virtue of which the former sold the estate to the latter for the stipulated consideration of P3,183,333.33. The property was registered in the name of the petitioner on December 6, 1988. On December 27, 1988, DAR and the Land Bank of the Philippines created a Compensation Clearing Committee (CCC) to expedite processing of the papers relating to the acquisition of the land and the preparation of the necessary deed of transfer for signature by the DAR Secretary and the LBP President. The following day, the CCC held its first meeting and decided to recommend the acquisition of the property for P62,725,077.29. The next day, December 29, 1988, DAR Secretary Philip Ella Juico issued an order directing the acquisition of the estate for the recommended amount and requiring LBP to pay the same to Sharp, 30% in cash and the balance in government financial instruments negotiable within 30 days from issuance by Sharp of the corresponding muniments of title.

On January 9, 1989, Secretary Juico and petitioner Lina signed the Deed of Absolute Sale. On that same day, the LBP received a copy of the order issued by Secretary Juico on December 29, 1988. On January 17, 1989, LBP Executive Vice President Jesus Diaz signed the CCC evaluation worksheet but with indicated reservations. For his part, LBP President Deogracias Vistan, taking into account these reservations and the discovery that Sharp had acquired the property from UCPB for only P3.1 million, requested Secretary Juico to reconsider his December 29, 1988 order. Secretary Juico then sought the opinion of the Secretary of Justice as to whether the LBP could refuse to pay the seller the compensation fixed by the DAR Secretary. Meantime, on February 3, 1989, Vistan informed Juico that LBP would not pay the stipulated purchase price. The reply of the Justice Department on March 12, 1989, was that the decision of the DAR Secretary fixing the compensation was not final if seasonably questioned in court by any interested party (including the LBP); otherwise, it would become final after 15 days from notice and binding on all parties concerned, including the LBP, which then could not refuse to pay the compensation fixed. Reacting to Sharp's repeated demands for payment, Juico informed Lina on April 7,1989, that DAR and LBP had dispatched a team to inspect the land for reassessment. Sharp then filed on April 18, 1989, a petition for mandamus with this court to compel the DAR and LBP to comply with the contract, prompting Juico to issue the following order:

Since the whole property of 1,887 hectares was acquired by Claimant for a consideration of P3 M, the buying price per hectare then was only about P1,589.83. It is incomprehensible how the value-of land per hectare in this secluded Caramoan Peninsula can go so high after a short period of time. The increase is difficult to understand since the land is neither fully cultivated nor has it been determined to possess special and rich features or potentialities other than agricultural purposes.

We cannot fail to note that the value of land under CARP, particularly in the most highly developed sections of Camarines Sur, ranges from P18,000.00 to P27,000 per hectare.

In view of the above findings of fact, the value of P62,725,077.29 is definitely too high as a price for the property in question.

However, in order to be fair and just to the landowner, a reevaluation of the land in question by an impartial and competent third party shall be undertaken. For this purpose, a well known private licensed appraiser shall he commissioned by DAR.

WHEREFORE, premises considered, Order is hereby issued for the reappraisal and re-evaluation of the subject property. For that purpose, DAR shall avail of the services of Cuervo and Associates to undertake and complete the appraisal of the subject property within 60 days from date of this Order.

On April 26, 1989, this Court referred the petition to the Court of Appeals, which dismissed it on October 31, 1989. In an exhaustive and well-reasoned decision penned by Justice Josue M. Bellosillo, 1 it held that mandamus did not he because the LBP was not a mere rubber stamp of the DAR and its signing of the Deed of Absolute Sale was not a merely ministerial act. It especially noted the failure of the DAR to take into account the prescribed guidelines in ascertaining the just compensation that resulted in the assessment of the land for the unconscionable amount of P62 million notwithstanding its original acquisition cost of only P3 million. The decision also held that the opinion of the Secretary of Justice applied only to compulsory acquisition of lands, not to voluntary agreements as in the case before it. Moreover, the sale was null and void ab initio because it violated Section 6 of RA 6657, which was in force at the time the transaction was entered into.The petitioners are now back with this Court, this time to question the decision of the Court of Appeals on the following grounds:

The Court of Appeals seriously erred in including in its Decision findings of facts which are not borne by competent evidence.

The Court of Appeals erred in holding that the valuation made on the Garchitorena estate has not yet become final.

The Court of Appeals erred in holding that the opinion of the Secretary of Justice is not applicable to the case at bar.

The Court of Appeals erred in holding that herein petitioner is not entitled to a writ of mandamus.

The Court of Appeals erred in holding that the sale of Garchitorena estate from UCPB in favor of the petitioner is void.

The Court of Appeals erred in holding that the P62 million is not a just compensation.

We need not go into each of these grounds as the basic question that need only to be resolved is whether or not the petitioners are entitled to a writ of mandamus to compel the LBP President Deogracias Vistan to sign the Deed of Absolute Sale dated January 9, 1989.

It is settled that mandamus is not available to control discretion. The writ may issue to compel the exercise of discretion but not the discretion itself. mandamus can require action only but not specific action where the act sought to be performed involves the exercise of discretion. 2Section 18 of RA 6657 reads as follows:

Sec. 18. Valuation and mode of compensation. The LBP shall compensate the landowner in such amount as may be agreed upon by the landowner and the DAR and the LBP, in accordance with the criteria provided for in Secs. 16 and 17, and other pertinent provisions hereof, or as may be finally determined by the court, as the just compensation for the land. ... (Emphasis supplied).

We agree with the respondent court that the act required of the LBP President is not merely ministerial but involves a high degree of discretion. The compensation to be approved was not trifling but amounted to as much as P62 million of public funds, to be paid in exchange for property acquired by the seller only one month earlier for only P3 million. The respondent court was quite correct when it observed:

As may be gleaned very clearly from EO 229, the LBP is an essential part of the government sector with regard to the payment of compensation to the landowner. It is, after all, the instrumentality that is charged with the disbursement of public funds for purposes of agrarian reform. It is therefore part, an indispensable cog, in the governmental machinery that fixes and determines the amount compensable to the landowner. Were LBP to be excluded from that intricate, if not sensitive, function of establishing the compensable amount, there would be no amount "to be established by the government" as required in Sec. 6, EO 229. This is precisely why the law requires the DAS, even if already approved and signed by the DAR Secretary, to be transmitted still to the LBP for its review, evaluation and approval.

It needs no exceptional intelligence to understand the implications of this transmittal. It simply means that if LBP agrees on the amount stated in the DAS, after its review and evaluation, it becomes its duty to sign the deed. But not until then. For, it is only in that event that the amount to be compensated shall have been "established' according to law. Inversely, if the LBP, after review and evaluation, refuses to sign, it is because as a party to the contract it does not give its consent thereto. This necessarily implies the exercise of judgment on the part of LBP, which is not supposed to be a mere rubber stamp in the exercise. Obviously, were it not so, LBP could not have been made a distinct member of PARC, the super body responsible for the successful implementation of the CARP. Neither would it have been given the power to review and evaluate the DAS already signed by the DAR Secretary. If the function of the LBP in this regard is merely to sign the DAS without the concomitant power of review and evaluation, its duty to "review/evaluate' mandated in Adm. Order No. 5 would have been a mere surplusage, meaningless, and a useless ceremony.

Thus, in the exercise of such power of review and evaluation, it results that the amount of P62,725,077.29 being claimed by petitioner is not the "amount to be established by the government." Consequently, it cannot be the amount that LBP is by law bound to compensate petitioner.

Under the facts, SHARP is not entitled to a writ of mandamus. For, it is essential for the writ to issue that the plaintiff has a legal right to the thing demanded and that it is the imperative duty of the defendant to perform the act required. The legal right of the plaintiff to the thing demanded must be well-defined, clear and certain. The corresponding duty of the defendant to perform the required act must also be clear and specific (Enriquez v. Bidin, L-29620, October 12, 1972, 47 SCRA 183; Orencia v. Enrile, L-28997, February 22, 1974, 55 SCRA 580; Dionisio v. Paterno, 103 SCRA 342; Lemi v. Valencia, 26 SCRA 203; Aquino v. Mariano, 129 SCRA 532).

Likewise, respondents cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned. It is established doctrine that mandamus will not issue to control the performance of discretionary, non-ministerial, duties, that is, to compel a body discharging duties involving the exercise of discretion to act in a particular way or to approve or disapprove a specific application (B.P. Homes, Inc. v. National Water Resources Council, L-78529, Sept. 17, 1987; 154 SCRA 88). mandamus win not issue to control or review the exercise of discretion by a public officer where the law imposes upon him the right or duty to exercise judgment in reference to any matter in which he is required to act (Mata v. San Diego, L-30447, March 21, 1975; 63 SCRA 170).

Even more explicit is R.A. 6657 with respect to the indispensable role of LBP in the determination of the amount to be compensated to the landowner. Under Sec. 18 thereof, "the LBP shall compensate the landowner in such amount as may be agreed upon by the landowner and the DAR and LBP, in accordance with the criteria provided in Secs. 16 and 17, and other pertinent provisions hereof, or as may be finally determined by the court, as the just compensation for the land."Without the signature of the LBP President, there was simply no contract between Sharp and the Government. The Deed of Absolute Sale dated January 9, 1989, was incomplete and therefore had no binding effect at all. Consequently, Sharp cannot claim any legal right thereunder that it can validly assert in a petition for mandamus.

In National Marketing Corporation v. Cloribel, 3 this Court held:

... the action for mandamus had no leg to stand on because the writ was sought to enforce alleged contractual obligations under a disputed contract disputed not only on the ground that it had failed of perfection but on the further ground that it was illegal and against public interest and public policy ...

The petitioner argues that the LBP President was under obligation to sign the agreement because he had been required to do so by Secretary Juico, who was acting by authority of the President in the exercise of the latter's constitutional power of control. This argument may be dismissed with only a brief comment. If the law merely intended LBP's automatic acquiescence to the DAR Secretary's decision, it would not have required the separate approval of the sale by that body and the DAR. It must also be noted that the President herself, apparently disturbed by public suspicion of anomalies in the transaction, directed an inquiry into the matter by a committee headed by former Justice Jose Y. Feria of this Court. Whatever presumed authority was given by her to the DAR Secretary in connection with the sale was thereby impliedly withdrawn.

It is no argument either that the Government is bound by the official decisions of Secretary Juico and cannot now renege on his commitment. The Government is never estopped from questioning the acts of its officials, more so if they are erroneous, let alone irregular. 4Given the circumstances attending the transaction which plainly show that it is not merely questionable but downright dishonest, the Court can only wonder at the temerity of the petitioner in insisting on its alleged right to be paid the questioned purchase price. The fact that criminal charges have been flied by the Ombudsman against the principal protagonists of the sale has, inexplicably, not deterred or discomfited it. It does not appear that the petitioner is affected by the revelation that it offered the property to the Government even if it was not yet the owner at the time; acquired it for P3 million after it had been assured that the sale would materialize; and sold it a month later for the bloated sum of P62 million, to earn a gross profit of P59 million in confabulation with some suspect officials in the DAR. How the property appreciated that much during that brief period has not been explained. What is clear is the public condemnation of the transaction as articulated in the mass media and affirmed in the results of the investigations conducted by the Feria Fact-Finding Committee, the Senate House Joint Committee on Agrarian Matters, and the Office of the Ombudsman.

It would seem to the Court that the decent tiling for the petitioner to do, if only in deference to a revolted public opinion, was to voluntarily withdraw from the agreement. Instead, it is unabashedly demanding the exorbitant profit it would derive from an illegal and unenforceable transaction that ranks as one of the most cynical attempts to plunder the public treasury.

The above rulings render unnecessary discussion of the other points raised by the petitioner. The Court has given this petition more attention than it deserves. We shall waste no more time in listening to the petitioner's impertinent demands. LBP President Deogracias Vistan cannot be faulted for refusing to be a party to the shameful scheme to defraud the Government and undermine the Comprehensive Agrarian Reform Program for the petitioner's private profit. We see no reason at all to disturb his discretion. It merits in fact the nation's commendation.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.

Narvasa (Chairman), Grio-Aquino and Medialdea, JJ., concur.G.R. No. 187858 August 9, 2011THE CIVIL SERVICE COMMISSION, Petitioner, vs.RICHARD G. CRUZ, Respondent.

D E C I S I O N

BRION, J.:This petition for review on certiorari assails the decision1 and the resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 105410. These assailed CA rulings reversed and set aside the ruling of the Civil Service Commission (CSC) in Resolution No. 0803053 that denied respondent Richard G. Cruzs prayer for the award of back salaries as a result of his reinstatement to his former position.

THE FACTSThe respondent, Storekeeper A of the City of Malolos Water District (CMWD), was charged with grave misconduct and dishonesty by CMWD General Manager (GM) Nicasio Reyes. He allegedly uttered a false, malicious and damaging statement (Masasamang tao ang mga BOD at General Manager) against GM Reyes and the rest of the CMWD Board of Directors (Board); four of the respondents subordinates allegedly witnessed the utterance. The dishonesty charge, in turn, stemmed from the respondents act of claiming overtime pay despite his failure to log in and out in the computerized daily time record for three working days.

The respondent denied the charges against him. On the charge of grave misconduct, he stressed that three of the four witnesses already retracted their statements against him. On the charge of dishonesty, he asserted that he never failed to log in and log out. He reasoned that the lack of record was caused by technical computer problems. The respondent submitted documents showing that he rendered overtime work on the three days that the CMWD questioned.

GM Reyes preventively suspended the respondent for 15 days. Before the expiration of his preventive suspension, however, GM Reyes, with the approval of the CMWD Board, found the respondent guilty of grave misconduct and dishonesty, and dismissed him from the service.4CSC RULING The respondent elevated the findings of the CMWD and his dismissal to the CSC, which absolved him of the two charges and ordered his reinstatement. In CSC Resolution No. 080305, the CSC found no factual basis to support the charges of grave misconduct and dishonesty.

In ruling that the respondent was not liable for grave misconduct, the CSC held:

Cruz was adjudged guilty of grave misconduct for his alleged utterance of such maligning statements, "MASASAMANG TAO ANG MGA BOD AT GENERAL MANAGER". However, such utterance, even if it were true, does not constitute a flagrant disregard of rule or was actuated by corrupt motive. To the mind of the Commission, it was a mere expression of disgust over the management style of the GM and the Board of Directors, especially when due notice is taken of the fact that the latter officials were charged with the Ombudsman for various anomalous transactions.5In ruling that the charge of dishonesty had no factual basis, the CSC declared:

Based on the records of the case, the Commission is not swayed that the failure of Cruz to record his attendance on April 21 and 22, 2007 and May 5, 2007, while claiming overtime pay therefor, amounts to dishonesty. Cruz duly submitted evidence showing his actual rendition of work on those days. The residents of the place where he worked attested to his presence thereat on the days in question.6The CSC, however, found the respondent liable for violation of reasonable office rules for his failure to log in and log out. It imposed on him the penalty of reprimand but did not order the payment of back salaries.

The CMWD and the respondent separately filed motions for reconsideration against the CSC ruling. CMWD questioned the CSCs findings and the respondents reinstatement. The respondent, for his part, claimed that he is entitled to back salaries in light of his exoneration from the charges of grave misconduct and dishonesty. The CSC denied both motions.

Both the CMWD and the respondent elevated the CSC ruling to the CA via separate petitions for review under Rule 43 of the Rules of Court. The CA dismissed the CMWDs petition and this ruling has lapsed to finality.7 Hence, the issue of reinstatement is now a settled matter. As outlined below, the CA ruled in the respondents favor on the issue of back salaries. This ruling is the subject of the present petition with us.

CA RULINGApplying the ruling in Bangalisan v. Hon. CA,8 the CA found merit in the respondents appeal and awarded him back salaries from the time he was dismissed up to his actual reinstatement. The CA reasoned out that CSC Resolution No. 080305 totally exonerated the respondent from the charges laid against him. The CA considered the charge of dishonesty successfully refuted as the respondent showed that he performed overtime service. The CA thereby rejected the CSCs contention that the charge of dishonesty had been merely downgraded to a lesser offense; the CA saw the finding in CSC Resolution No. 080305 to be for an offense (failing to properly record his attendance) entirely different from the dishonesty charge because their factual bases are different. Thus, to the CA, CSC Resolution No. 080305 did not wholly restore the respondents rights as an exonerated employee as it failed to order the payment of his back salaries. The CA denied the CSCs motion for reconsideration.

ISSUE WHETHER OR NOT [THE] RESPONDENT IS ENTITLED TO BACK SALARIES AFTER THE CSC ORDERED HIS REINSTATEMENT TO HIS FORMER POSITION, CONSONANT WITH THE CSC RULING THAT HE WAS GUILTY ONLY OF VIOLATION OF REASONABLE OFFICE RULES AND REGULATIONS.9CSCs position

The CSC submits that the CA erred in applying the ruling in Bangalisan, requiring as a condition for entitlement to back salaries that the government employee be found innocent of the charge and that the suspension be unjustified. CSC Resolution No. 080305 did not fully exculpate the respondent but found him liable for a lesser offense. Likewise, the respondents preventive suspension pending appeal was justified because he was not exonerated.

The CSC also submits that the factual considerations in Bangalisan are entirely different from the circumstances of the present case. In Bangalisan, the employee, Rodolfo Mariano, a public school teacher, was charged with grave misconduct for allegedly participating, together with his fellow teachers, in an illegal mass action. He was ordered exonerated from the misconduct charge because of proof that he did not actually participate in the mass action, but was absent from work for another reason. Although the employee was found liable for violation of office rules and regulations, he was considered totally exonerated because his infraction stemmed from an act entirely different (his failure to file a leave of absence) from the act that was the basis of the grave misconduct charge (the unjustified abandonment of classes to the prejudice of the students).

The CSC argues that in the present case, the charge of dishonesty and the infraction committed by the respondent stemmed from a single act his failure to properly record his attendance. Thus, the respondent cannot be considered totally exonerated; the charge of dishonesty was merely downgraded to a violation of reasonable office rules and regulations.

Accordingly, the CSC posits that the case should have been decided according to our rulings in Jacinto v. CA10 and De la Cruz v. CA11 where we held the award of back salaries to be inappropriate because the teachers involved were not fully exonerated from the charges laid against them.

The respondents position

The respondent maintains that he is entitled to reinstatement and back salaries because CSC Resolution No. 080305 exonerated him from the charges laid against him; for the purpose of entitlement to back salaries, what should control is his exoneration from the charges leveled against him by the CMWD. That the respondent was found liable for a violation different from that originally charged is immaterial for purposes of the back salary issue.

The respondent also asserts that the Bangalisan ruling squarely applies since the CSC formally admitted in its Comment to CMWDs petition for review before the CA that the penalty of reprimand is not a reduced penalty for the penalty of dismissal imposable for grave misconduct and dishonesty.12THE COURTS RULING We deny the petition for lack of merit.

The issue of entitlement to back salaries, for the period of suspension pending appeal,13 of a government employee who had been dismissed but was subsequently exonerated is settled in our jurisdiction. The Courts starting point for this outcome is the "no work-no pay" principle public officials are only entitled to compensation if they render service. We have excepted from this general principle and awarded back salaries even for unworked days to illegally dismissed or unjustly suspended employees based on the constitutional provision that "no officer or employee in the civil service shall be removed or suspended except for cause provided by law";14 to deny these employees their back salaries amounts to unwarranted punishment after they have been exonerated from the charge that led to their dismissal or suspension.15The present legal basis for an award of back salaries is Section 47, Book V of the Administrative Code of 1987.

Section 47. Disciplinary Jurisdiction. x x x.

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. (italics ours)

This provision, however, on its face, does not support a claim for back salaries since it does not expressly provide for back salaries during this period; our established rulings hold that back salaries may not be awarded for the period of preventive suspension16 as the law itself authorizes its imposition so that its legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an employee may be entitled to back salaries: a) the employee must be found innocent of the charges and b) his suspension must be unjustified.17 The reasoning behind these conditions runs this way: although an employee is considered under preventive suspension during the pendency of a successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence, his suspension beyond this fixed period is unjustified and must be compensated.

The CSCs rigid and mechanical application of these two conditions may have resulted from a misreading of our rulings on the matter; hence, a look at our jurisprudence appears in order.

Basis for award of back salaries

The Court had the occasion to rule on the issue of entitlement to back salaries as early as 1941,18 when Section 260 of the Revised Administrative Code of 1917 (RAC)19 was the governing law. The Court held that a government employee, who was suspended from work pending final action on his administrative case, is not entitled to back salaries where he was ultimately removed due to the valid appointment of his successor. No exoneration or reinstatement, of course, was directly involved in this case; thus, the question of back salaries after exoneration and reinstatement did not directly arise. The Court, however, made the general statement that:

As a general proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence, the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended person or exoneration if death should render reinstatement impossible.20 (emphasis and underscoring ours)

In Austria v. Auditor General,21 a high school principal, who was penalized with demotion, claimed payment of back salaries from the time of his suspension until his appointment to the lower position to which he was demoted. He argued that his later appointment even if only to a lower position of classroom teacher amounted to a reinstatement under Section 260 of the RAC. The Court denied his claim, explaining that the reinstatement under Section 260 of the RAC refers to the same position from which the subordinate officer or employee was suspended and, therefore, does not include demotional appointments. The word "reinstatement" was apparently equated to exoneration.

In the 1961 case of Gonzales v. Hon. Hernandez, etc. and Fojas22 interpreting the same provision, the Court first laid down the requisites for entitlement to back salaries. Said the Court:

A perusal of the decisions of this Court23 x x x show[s] that back salaries are ordered paid to an officer or an employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In the case at bar, [the employee] was not completely exonerated, because although the decision of the Commissioner of Civil Service [ordering separation from service] was modified and [the employee] was allowed to be reinstated, the decision [imposed upon the employee the penalty of two months suspension without pay]. [emphasis and underscoring ours]

Obviously, no exoneration actually resulted and no back salary was due; the liability for the offense charged remained, but a lesser penalty was imposed.

In Villamor, et al. v. Hon. Lacson, et al.,24 the City Mayor ordered the dismissal from the service of city employees after finding them guilty as charged. On appeal, however, the decision was modified by considering "the suspension of over one year x x x, already suffered x x x [to be] sufficient punishment"25 and by ordering their immediate reinstatement to the service. The employees thereupon claimed that under Section 695 of the RAC, the punishment of suspension without pay cannot exceed two (2) months. Since the period they were not allowed to work until their reinstatement exceeded two months, they should be entitled to back salaries corresponding to the period in excess of two months. In denying the employees claim for back salaries, the Court held:

The fallacy of [the employees] argument springs from their assumption that the modified decision had converted the penalty to that of suspension. The modified decision connotes that although dismissal or resignation would be the proper penalty, the separation from work for the period until their reinstatement, would be deemed sufficient. Said decision did not, in the least, insinuate that suspension should have been the penalty.

x x x [T]he modified decision did not exonerate the petitioners. x x x And even if we consider the punishment as suspension, before a public official or employee is entitled to payment of salaries withheld, it should be shown that the suspension was unjustified or that the employee was innocent of the charges proffered against him.26On the whole, these rulings left the application of the conditions for the award of back salaries far from clear. Jurisprudence did not strictly observe the requirements earlier enunciated in Gonzales as under subsequent rulings, the innocence of the employee alone served as basis for the award of back salaries.

The innocence of the employee as sole basis for an award of back salaries

In Tan v. Gimenez, etc., and Aguilar, etc.,27 we ruled that the payment of back salary to a government employee, who was illegally removed from office because of his eventual exoneration on appeal, is merely incidental to the ordered reinstatement.

Tan was subsequently reiterated in Taala v. Legaspi, et al.,28 a case involving an employee who was administratively dismissed from the service following his conviction in the criminal case arising from the same facts as in the administrative case. On appeal, however, he was acquitted of the criminal charge and was ultimately ordered reinstated by the Office of the President. Failing to secure his actual reinstatement, he filed a mandamus petition to compel his superiors to reinstate him and to pay his back salaries from the date of his suspension to the date of his actual reinstatement. We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President had reversed the decision x x x in the administrative case which ordered his separation from the service, and the President had ordered his reinstatement to his position, it results that the suspension and the separation from the service of the [employee] were thereby considered illegal. x x x.

x x x [In this case,] by virtue of [the Presidents order of reinstatement], [the employees] suspension and separation from the service x x x was thereby declared illegal, so that for all intents and purposes he must be considered as not having been separated from his office. The lower court has correctly held that the [employee] is entitled to back salaries.29The Taala ruling was reiterated in Cristobal v. Melchor,30 Tan, Jr. v. Office of the President,31 De Guzman v. CSC32 and Del Castillo v. CSC33 - cases involving government employees who were dismissed after being found administratively liable, but who were subsequently exonerated on appeal.

In Garcia v. Chairman Commission on Audit,34 the Court held that where the employee, who was dismissed after being found administratively liable for dishonesty, was acquitted on a finding of innocence in the criminal case (for qualified theft) based on the same acts for which he was dismissed the executive pardon granted him in the administrative case (in light of his prior acquittal) entitled him to back salaries from the time of his illegal dismissal up to his actual reinstatement.

The above situation should be distinguished from the case of an employee who was dismissed from the service after conviction of a crime and who was ordered reinstated after being granted pardon. We held that he was not entitled to back salaries since he was not illegally dismissed nor acquitted of the charge against him.35Incidentally, under the Anti-Graft and Corrupt Practices Act,36 if the public official or employee is acquitted of the criminal charge/s specified in the law, he is entitled to reinstatement and the back salaries withheld during his suspension, unless in the meantime administrative proceedings have been filed against him.

In Tan, Jr. v. Office of the President,37 the Court clarified that the silence of Section 42 (Lifting of Preventive Suspension Pending Administrative Investigation) of the Civil Service Decree38 on the payment of back salaries, unlike its predecessor,39 is no reason to deny back salaries to a dismissed civil servant who was ultimately exonerated.

Section 42 of P.D. No. 807, however, is really not in point x x x [as] it does not cover dismissed civil servants who are ultimately exonerated and ordered reinstated to their former or equivalent positions. The rule in the latter instance, just as we have said starting with the case of Cristobal vs. Melchor is that when "a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held."40These cited cases illustrate that a black and white observance of the requisites in Gonzales is not required at all times. The common thread in these cases is either the employees complete exoneration of the administrative charge against him (i.e., the employee is not found guilty of any other offense), or the employees acquittal of the criminal charge based on his innocence. If the case presented falls on either of these instances, the conditions laid down in Gonzales become the two sides of the same coin; the requirement that the suspension must be unjustified is automatically subsumed in the other requirement of exoneration.

Illegal suspension as sole basis for an award of back salaries

By requiring the concurrence of the two conditions, Gonzales apparently made a distinction between exoneration and unjustified suspension/dismissal. This distinction runs counter to the notion that if an employee is exonerated, the exoneration automatically makes an employees suspension unjustified. However, in Abellera v. City of Baguio, et al.,41 the Court had the occasion to illustrate the independent character of these two conditions so that the mere illegality of an employees suspension could serve as basis for an award of back salaries.

Abellera, a cashier in the Baguio City Treasurers Office, was ordered dismissed from the service after being found guilty of dishonesty and gross negligence. Even before the period to appeal expired, the City of Baguio dismissed him from the service. On appeal, however, the penalty imposed on him was reduced "to two months suspension, without pay" although the appealed decision was affirmed "in all other respects."

When the issue of Abelleras entitlement to back salaries reached the Court, we considered the illegality of Abelleras suspension - i.e., from the time he was dismissed up to the time of his actual reinstatement to be a sufficient ground to award him back salaries.

The rule on payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries corresponding to the period when an employee is not allowed to work may be decreed not only if he is found innocent of the charges which caused his suspension (Sec. 35, RA 2260), but also when the suspension is unjustified.

In the present case, upon receipt of the [Civil Service Commissioners] decision x x x finding [Abellera] guilty, but even before the period to appeal had expired, [the Baguio City officials] dismissed [Abellera] from the service and another one was appointed to replace him. [Abelleras] separation x x x before the decision of the Civil Service Commissioner had become final was evidently premature. [The Baguio City officials] should have realized that [Abellera] still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a specified period, and the possibility of that decision being reversed or modified.42 As it did happen on such appeal x x x the penalty imposed by the Commissioner was reduced x x x to only 2 months suspension. And yet, by [the Baguio City officials] action, [Abellera] was deprived of work for more than 2 years. Clearly, Abelleras second suspension from office [i.e., from the time he was dismissed up to his actual reinstatement] was unjustified, and the payment of the salaries corresponding to said period is, consequently, proper.43 (emphases and underscoring ours)

The import of the Abellera ruling was explained by the Court in the subsequent case of Yarcia v. City of Baguio44 that involved substantially similar facts. The Court clarified that the award of back salaries in Abellera was based on the premature execution of the decision (ordering the employees dismissal from the service), resulting in the employees unjustified "second suspension." Under the then Civil Service Rules, the Commissioner of Civil Service had the discretion to order the immediate execution of his decision in administrative cases "in the interest of public service." Unlike in Abellera, this discretion was exercised in Yarcia; consequently, the employees separation from the service pending his appeal "remained valid and effective until it was set aside and modified with the imposition of the lesser penalty."45The unjustified "second suspension" mentioned in Abellera actually refers to the period when the employee was dismissed from the service up to the time of his actual reinstatement. Under our present legal landscape, this period refers to "suspension pending appeal."46In Miranda v. Commission on Audit,47 the Court again had the occasion to consider the illegality of the suspension of the employee as a separate ground to award back salaries. Following the filing of several administrative charges against him, Engr. Lamberto Miranda was "preventively" suspended from June 2, 1978 to May 7, 1986. He was reinstated on May 22, 1986. On October 7, 1986, the administrative case against him was finally dismissed "for lack of evidence." When his claim for back salaries (from the time he was "preventively" suspended up to his actual reinstatement) was denied by the Commission on Audit, he brought a certiorari petition with this Court.

In granting the petition, the Court ruled that since the law48 limits the duration of preventive suspension to a fixed period, Engr. Mirandas suspension for almost eight (8) years is "unreasonable and unjustified." Additionally, the Court observed that the dropping of the administrative case against Engr. Miranda for lack of evidence "is even an eloquent manifestation that the suspension is unjustified."49 The Court held:

This being so, Engineer Miranda is entitled to backwages during the period of his suspension as it is already settled in this jurisdiction that a government official or employee is entitled to backwages not only if he is exonerated in the administrative case but also when the suspension is unjustified.50 (emphases and underscoring ours)

Jurisprudential definition of exoneration

The mere reduction of the penalty on appeal does not entitle a government employee to back salaries if he was not exonerated of the charge against him. This is the Courts teaching in City Mayor of Zamboanga v. CA.51 In this case, the employee was initially found guilty of disgraceful and immoral conduct and was given the penalty of dismissal by the City Mayor of Zamboanga. On appeal, however, the CA limited the employees guilt to improper conduct and correspondingly reduced the penalty to "six-months suspension without pay with a stern warning that repetition of the same or similar offense will be dealt with more severely."52 The CA also awarded him "full backwages."53We held that the CA erred in awarding back salaries by reiterating the principle that back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal.54The Court had the occasion to explain what constitutes "exoneration" in Bangalisan v. Hon. CA,55 the respondents cited case. In this case, the Secretary of Education found the public school teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the CSC affirmed the Secretarys ruling but reduced the penalty imposed to suspension without pay. However, the CSC found one of the teachers (Mariano) guilty only of violation of reasonable office rules and regulations, and only penalized her with reprimand. None of the petitioning public school teachers were awarded back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We explained that since the factual premise of the administrative charges against him - i.e., his alleged participation in the illegal mass actions, and his suspension - was amply rebutted, then Mariano was in effect exonerated of the charges against him and was, thus, entitled to back salaries for the period of his suspension pending appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in order. A reading of the resolution of the [CSC] will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct x x x [and] conduct prejudicial to the best interest of the service x x x for his participation in the mass actions x x x. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that Mariano was not involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school or his intended absence and neither did he file an application for leave covering such absences.

x x x x

However, with regard to the other petitioners, the payment of their back wages must be denied. Although the penalty imposed on them was only suspension, they were not completely exonerated of the charges against them. The CSC made specific findings that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be noted that it was their participation in the mass actions that was the very basis of the charges against them and their subsequent suspension.56Bangalisan clearly laid down the principle that if the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when the offense actually committed does not carry the penalty of more than one month suspension or dismissal.57Bangalisan reiterated that the payment of back salaries, during the period of suspension of a member of the civil service who is subsequently ordered reinstated, may be decreed only if the employee is found innocent of the charges which caused the suspension and when the suspension is unjustified. This pronouncement was re-echoed in Jacinto v. CA,58 De la Cruz v. CA,59 and Hon. Gloria v. CA.60 Taking off from Bangalisan, the Court in De la Cruz categorically stated:

The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders x x x were commuted by the CSC to six (6) months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases.61In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the public school teachers back salaries - for the period beyond the allowable period of preventive suspension - since they were ultimately exonerated. In affirming the CA, the Court distinguished preventive suspension from suspension pending appeal for the purpose of determining the extent of an employees entitlement to back salaries. The Court ruled that under Executive Order (E.O.) No. 292, there are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (i) preventive suspension pending investigation62 and (ii) preventive suspension pending appeal;63 compensation is due only for the period of preventive suspension pending appeal should the employee be ultimately exonerated.64 Citing Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers,65 Hon. Gloria ruled:

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified."66 (emphases and underscoring ours)

A careful reading of these cases would reveal that a strict observance of the second condition for an award of back salaries becomes important only if the employee is not totally innocent of any administrative infraction. As previously discussed, where the employee is completely exonerated of the administrative charge or acquitted in the criminal case arising from the same facts based on a finding of innocence, the second requirement becomes subsumed in the first. Otherwise, a determination of the act/s and offense/s actually committed and of the corresponding penalty imposed has to be made.

Unjustified suspension

On the suspension/dismissal aspect, this second condition is met upon a showing that the separation from office is not warranted under the circumstances because the government employee gave no cause for suspension or dismissal. This squarely applies in cases where the government employee did not commit the offense charged, punishable by suspension or dismissal (total exoneration); or the government employee is found guilty of another offense for an act different from that for which he was charged.

Bangalisan, Jacinto and De la Cruz illustrate

the application of the two conditions

Both the CA and the respondent applied Bangalisan to justify the award of back salaries. The CSC argues against this position with the claim that the rulings in Jacinto and De la Cruz, not Bangalisan, should apply. After due consideration, we see no reason why the cited rulings and their application should be pitted against one another; they essentially espouse the same conclusions after applying the two conditions for the payment of back salaries.

Bangalisan, Jacinto and De la Cruz all stemmed from the illegal mass actions of public school teachers in Metro Manila in 1990. The teachers were charged with grave misconduct, gross neglect of duty, and gross violation of civil service law, rules and regulations, among others. The then Secretary of Education found them guilty and dismissed them from the service. The CSC, on appeal, ordered the teachers reinstated, but withheld the grant of their back salaries. The CSC found the teachers liable for conduct prejudicial to the best interest of the service and imposed on them the penalty of suspension. The CSC reasoned that since the teachers were not totally exculpated from the charge (but were found guilty of a lesser offense), they could not be awarded back salaries.

When these cases reached the Court, the issue of the teachers entitlement to back salaries was raised. The teachers claimed that they were entitled to back salaries from the time of their dismissal or suspension until their reinstatement, arguing that they were totally exonerated from the charges since they were found guilty only of conduct prejudicial to the best interest of the service.

Under this factual backdrop, we applied the two conditions and distinguished between the teachers who were absent from their respective classes because they participated in the illegal mass action, on one hand, and the teachers who were absent for some other reason, on the other hand.

With respect to the teachers who participated in the illegal mass actions, we ruled that they were not entitled to back salaries since they were not exonerated. We explained that liability for a lesser offense, carrying a penalty less than dismissal, is not equivalent to exoneration. On the second condition, we ruled that their suspension is not unjustified since they have given a ground for their suspension i.e., the unjustified abandonment of their classes to the prejudice of their students, the very factual premise of the administrative charges against them for which they were suspended.

With respect to the teachers who were away from their classes but did not participate in the illegal strike, the Court awarded them back salaries, considering that: first, they did not commit the act for which they were dismissed and suspended; and second, they were found guilty of another offense, i.e., violation of reasonable office rules and regulations which is not penalized with suspension or dismissal. The Court ruled that these teachers were totally exonerated of the charge, and found their dismissal and suspension likewise unjustified since the offense they were found to have committed only merited the imposition of the penalty of reprimand.1avvphi1These cases show the Courts consistent stand in determining the propriety of the award of back salaries. The government employees must not only be found innocent of the charges; their suspension must likewise be shown to be unjustified.

The Present Case

We find that the CA was correct in awarding the respondent his back salaries during the period he was suspended from work, following his dismissal until his reinstatement to his former position. The records show that the charges of grave misconduct and dishonesty against him were not substantiated. As the CSC found, there was no corrupt motive showing malice on the part of the respondent in making the complained utterance. Likewise, the CSC found that the charge of dishonesty was well refuted by the respondents evidence showing that he rendered overtime work on the days in question.

We fully respect the factual findings of the CSC especially since the CA affirmed these factual findings. However, on the legal issue of the respondents entitlement to back salaries, we are fully in accord with the CAs conclusion that the two conditions to justify the award of back salaries exist in the present case.

The first condition was met since the offense which the respondent was found guilty of (violation of reasonable rules and regulations) stemmed from an act (failure to log in and log out) different from the act of dishonesty (claiming overtime pay despite his failure to render overtime work) that he was charged with.

The second condition was met as the respondents committed offense merits neither dismissal from the service nor suspension (for more than one month), but only reprimand.

In sum, the respondent is entitled to back salaries from the time he was dismissed by the CMWD until his reinstatement to his former position - i.e., for the period of his preventive suspension pending appeal. For the period of his preventive suspension pending investigation, the respondent is not entitled to any back salaries per our ruling in Hon. Gloria.67WHEREFORE, the petition is hereby DENIED. Costs against the petitioner.

SO ORDERED.

G.R. NO. 183337 April 23, 2010CIVIL SERVICE COMMISSION, Petitioner, vs.GREGORIO MAGNAYE, JR., Respondent.

D E C I S I O N

MENDOZA, J.:The Civil Service Commission (CSC) assails in this petition for review on certiorari,1 the February 20, 2008 Decision2 and the June 11, 2008 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 85508. The CA reversed the July 20, 2004 Decision of the Civil Service Commission Regional Office No. IV (CSCRO-IV) and ordered the reinstatement of respondent Gregorio Magnaye, Jr. (Magnaye) with payment of backwages and other monetary benefits.

THE FACTS

In March 2001, Mayor Roman H. Rosales of Lemery, Batangas, appointed Magnaye as Utility Worker I at the Office of Economic Enterprise [Operation of Market] (OEE). After a few days, Mayor Rosales detailed him to the Municipal Planning and Development Office.

In the May elections of that year, Mayor Rosales was defeated by Raul L. Bendaa, who assumed office on June 30, 2001. Thereafter, Magnaye was returned to his original assignment at the OEE. On July 11, 2001, Bendaa also placed him on detail at the Municipal Planning and Development Office to assist in the implementation of a Survey on the Integrated Rural Accessibility Planning Project.

On August 13, 2001, the new mayor served him a notice of termination from employment effective the following day for unsatisfactory conduct and want of capacity.

Magnaye questioned his termination before the CSC head office on the ground that Mayor Bendaa was not in a position to effectively evaluate his performance because it was made less than one and one-half months after his (Mayor Bendaas) assumption to office. He added that his termination was without basis and was politically motivated.

The CSC head office dismissed, without prejudice, Magnayes complaint because he failed to attach a certificate of non-forum shopping. Thereafter, Magnaye filed a complaint with the regional office of the Civil Service (CSCRO-IV).

The CSCRO-IV dismissed Magnayes complaint for lack of merit. It upheld his dismissal from the service on the ground that Mayor Bendaas own assessment, together with the evaluation made by his supervisors, constituted sufficient and reasonable grounds for his termination.

Magnaye sought recourse through a petition for review with the Court of Appeals, citing CSCRO-IVs alleged errors of fact and of law, non-observance of due process, and grave abuse of discretion amounting to lack or excess of jurisdiction. Adopting the stance of the Office of the Solicitor General, the CA ruled in Magnayes favor, mainly on the ground that he was denied due process since he was not informed of what constituted the alleged unsatisfactory conduct and want of capacity that led to his termination. It summarized the positions of the OSG as follows:

On January 18, 2005, the Office of the Solicitor General (OSG) filed its manifestation and motion, in lieu of comment, praying that the assailed decision be set aside. The OSG argued that Petitioners termination was illegal. The notice of termination did not cite the specific instances indicating Petitioners alleged unsatisfactory conduct or want of capacity. It was only on July 29, 2003, or almost two years after Petitioners dismissal on August 13, 2001 that his former Department Heads, Engr. Magsino and Engr. Masongsong, submitted an assessment and evaluation report to Mayor Bendaa, which the latter belatedly solicited when the Petitioner appealed to the CSC Regional Office. Hence, the circumstances behind Petitioners dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level that Petitioner was informed of his alleged poor performance. There was no evidence that Petitioner was furnished copies of 1) Mayor Bendaas letter, dated July 29, 2003, addressed to CSC Regional Office praying that Petitioners termination be sustained; and 2) the performance evaluation report, dated July 29, 2003, prepared by Engr. Magsino and Engr. Masongsong. The OSG claimed that Petitioner was denied due process because his dismissal took effect a day after he received the notice of termination. No hearing was conducted to give Petitioner the opportunity to refute the alleged causes of his dismissal. The OSG agreed with Petitioners claim that there was insufficient time for Mayor Bendaa to determine his fitness or unfitness for the position.3 [Emphasis supplied]

Thus, the fallo of the CA Decision4 reads:

"WHEREFORE, the petition is Granted. The Civil Service Commission Regional Office No. 4s Decision, dated July 20, 2004 is hereby Set Aside. Accordingly, Petitioner is ORDERED REINSTATED with full payment of backwages and other monetary benefits. This case is hereby REMANDED to the Civil Service Commission for reception of such evidence necessary for purposes of determining the amount of backwages and other monetary benefits to which Petitioner is entitled.

SO ORDERED."

THE ISSUESIn this petition, the Civil Service Commission submits the following for our consideration:

"I. The dropping of respondent from the rolls of the local government unit of Lemery, Batangas was in accord with Civil Service Law, rules and jurisprudence.

II. The respondent resorted to a wrong mode of appeal and violated the rule on exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction."

The principal issue, therefore, is whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

THE COURTS RULINGThe Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnayes termination was in accord with the Civil Service law, cited Section 4(a), Rule II of the 1998 CSC Omnibus Rules on Appointments and Other Personnel Actions which provides that:

Sec. 4. Nature of appointment. The nature of appointment shall be as follows:

a. Original refers to the initial entry into the career service of persons who meet all the requirements of the position. xxx

It is understood that the first six months of the service following an original appointment will be probationary in nature and the appointee shall undergo a thorough character investigation. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period. Provided that such action is appealable to the Commission.

However, if no notice of termination for unsatisfactory conduct is given by the appointing authority to the employee before the expiration of the six-month probationary period, the appointment automatically becomes permanent.

Under Civil Service rules, the first six months of service following a permanent appointment shall be probationary in nature, and the probationer may be dropped from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period. 5

The CSC is of the position that a civil service employee does not enjoy security of tenure during his 6-month probationary period. It submits that an employees security of tenure starts only after the probationary period. Specifically, it argued that "an appointee under an original appointment cannot lawfully invoke right to security of tenure until after the expiration of such period and provided that the appointee has not been notified of the termination of service or found unsatisfactory conduct before the expiration of the same."6

The CSC position is contrary to the Constitution and the Civil Service Law itself. Section 3 (2) Article 13 of the Constitution guarantees the rights of all workers not just in terms of self-organization, collective bargaining, peaceful concerted activities, the right to strike with qualifications, humane conditions of work and a living wage but also to security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no officer or employee of the civil service shall be removed or suspended except for cause as provided by law."

Consistently, Section 46 (a) of the Civil Service Law provides that "no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law after due process."

Our Constitution, in using the expressions "all workers" and "no officer or employee," puts no distinction between a probationary and a permanent or regular employee which means that both probationary and permanent employees enjoy security of tenure. Probationary employees enjoy security of tenure in the sense that during their probationary employment, they cannot be dismissed except for cause or for failure to qualify as regular employees. This was clearly stressed in the case of Land Bank of the Philippines v. Rowena Paden,7 where it was written:

To put the case in its proper perspective, we begin with a discussion on the respondent's right to security of tenure. Article IX (B), Section 2(3) of the 1987 Constitution expressly provides that

"[n]o officer or employee of the civil service shall be removed or suspended except for cause provided by law." At the outset, we emphasize that the aforementioned constitutional provision does not distinguish between a regular employee and a probationary employee. In the recent case of Daza v. Lugo8 we ruled that:

The Constitution provides that "[N]o officer or employee of the civil service shall be removed or suspended except for cause provided by law." Sec. 26, par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states:

All such persons (appointees who meet all the requirements of the position) must serve a probationary period of six months following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period; Provided, That such action is appealable to the Commission.

Thus, the services of respondent as a probationary employee may only be terminated for a just cause, that is, unsatisfactory conduct or want of capacity. [Emphasis supplied]

x x x.

X x x the only difference between regular and probationary employees from the perspective of due process is that the latter's termination can be based on the wider ground of failure to comply with standards made known to them when they became probationary employees."

The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of the officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended. 9 Further, well-entrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.10

While the CSC contends that a probationary employee does not enjoy security of tenure, its Omnibus Rules recognizes that such an employee cannot be terminated except for cause. Note that in the Omnibus Rules it cited,11 a decision or order dropping a probationer from the service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period "is appealable to the Commission." This can only mean that a probationary employee cannot be fired at will.

Notably, jurisprudence has it that the right to security of tenure is unavailing in certain instances. In Orcullo Jr. v. Civil Service Commission,12 it was ruled that the right is not available to those employees whose appointments are contractual and co-terminous in nature. Such employment is characterized by "a tenure which is limited to a period specified by law, or that which is coterminous with the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made."13 In Amores M.D. v. Civil Service Commission,14 it was held that a civil executive service appointee who meets all the requirements for the position, except only the appropriate civil service eligibility, holds the office in a temporary capacity and is, thus, not entitled to a security of tenure enjoyed by permanent appointees.1avvphi1Clearly, Magnayes appointment is entirely different from those situations. From the records, his appointment was never classified as co-terminous or contractual. Neither was his eligibility as a Utility Worker I challenged by anyone.

In support of its position that an appointee cannot lawfully invoke the right to a security of tenure during the probationary period, petitioner CSC banked on the case of Lucero v. Court of Appeals and Philippine National Bank.15 This case is, however, not applicable because it refers to a private entity where the rules of employment are not exactly similar to those in the government service.

Mayor Bendaa dismissed Magnaye for lack of capacity and unsatisfactory conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987 states:

(1) Appointment through certification.An appointment through certification to a position in the civil service, except as herein otherwise provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropriate register of eligibles, and who meets all the other requirements of the position.

All such persons must serve a probationary period of six months following their original appointment and shall undergo a thorough character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfactory conduct or want of capacity any time before the expiration of the probationary period: Provided, That such action is appealable to the Commission.

While unsatisfactory conduct and want of capacity are valid causes that may be invoked for dismissal from the service,16 the CA observed that the Memorandum issued by Mayor Bendaa terminating Magnayes employment did not specify the acts constituting his want of capacity and unsatisfactory conduct. It merely stated that the character investigation conducted during his probationary period showed that his employment "need not be necessary to be permanent in status."17 Specifically, the notice of termination partly reads:

You are hereby notified that your service as Utility Worker I, this municipality under six (6) month probationary period, is considered terminated for unsatisfactory conduct or want of capacity, effective August 14, 2001.

You are further notified that after a thorough character investigation made during your such probationary period under my administration, your appointment for employment need not be necessary to be automatically permanent in status.18This notice indisputably lacks the details of Magnayes unsatisfactory conduct or want of capacity. Section VI, 2.2(b) of the Omnibus Guidelines on Appointments and other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by CSC Memorandum Circular No. 12, Series of 1994), provides:

2.2. Unsatisfactory or Poor Performance

x x x

b. An official who, for one evaluation period, is rated poor in performance, may be dropped from the rolls after due notice. Due notice shall mean that the officer or employee is informed in writing of the status of his performance not later than the fourth month of that rating period with sufficient warning that failure to improve his performance within the remaining period of the semester shall warrant his separation from the service. Such notice shall also contain sufficient information which shall enable the employee to prepare an explanation. [Emphasis and underscoring supplied]

Magnaye asserts that no performance evaluation was made between March 2001 when he was hired by Mayor Rosales until August 14, 2001 when his services were terminated by Mayor Bendaa.19 It was only on July 29, 2003, at Mayor Bendaas behest, that his two supervisors prepared and submitted the evaluation report after the CSCRO-IV directed him to file an answer to Magnayes appeal.20This has not been rebutted. It being not disputed, it was an error on the part of the CSCRO-IV to rely on such belated performance appraisal. Common sense dictates that the evaluation report, submitted only in 2003, could not have been the basis for Magnayes termination.

Besides, Mayor Bendaas own assessment of Magnayes performance could not have served as a sufficient basis to dismiss him because said mayor was not his immediate superior and did not have daily contacts with him. Additionally, Mayor Bendaa terminated his employment less than one and one-half months after his assumption to office. This is clearly a short period within which to assess his performance. In the case of Miranda v. Carreon,21 it was stated:

The 1987 Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law." Under the Revised Administrative Code of 1987, a government officer or employee may be removed from the service

on two (2) grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not define and delineate the concepts of these two grounds, however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds for dismissing a government officer or employee from the service. Among these grounds are inefficiency and incompetence in the performance of official duties. In the case at bar, respondents were dismissed on the ground of poor performance. Poor performance falls within the concept of inefficiency and incompetence in the performance of official duties which, as earlier mentioned, are grounds for dismissing a government official or employee from the service.

But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary period of six (6) months for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires enough time on the part of his immediate superior within which to observe his performance. This condition, however, was not observed in this case. x x x. [Emphasis and underscoring supplied]

The CSC is the central personnel agency of the government exercising quasi-judicial functions.22 "In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion."23 The standard of substantial evidence is satisfied when, on the basis of the evidence on record, there is reasonable ground to believe that the person terminated was evidently wanting in capacity and had unsatisfactory conduct. In this case, the evidence against Magnaye was woefully inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman Patricia Sto. Tomas24 that the prohibition in Article IX (B) (2) (3) of the Constitution against dismissal of a civil service officer or employee "except for cause provided by law" is a guaranty of both procedural and substantive due process. Procedural due process requires that the dismissal comes only after notice and hearing,25 while substantive due process requires that the dismissal be "for cause."26

Magnaye was denied procedural due process when he received his notice of termination only a day before he was dismissed from the service. Evidently, he was effectively deprived of the opportunity to defend himself from the charge that he lacked the capacity to do his work and that his conduct was unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not furnished with the submissions of Mayor Bendaa that he could have opposed. He was also denied substantive due process because he was dismissed from the service without a valid cause for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct.

Thus, we reject petitioners argument that the CA erred when it acted upon the erroneous remedy availed of by respondent when he filed a petition for review considering that the assailed decision is not in the nature of "awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions" as prescribed under Rule 43 of the Rules of Court. While Sections 71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil

Service 27 provide for the remedy of an appeal from decisions of its regional offices to the Commission proper, Magnayes petition to the CA comes under the exceptions to the doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v. Lacap,28 where a violation of due process is listed to be among the noted exceptions to the rule. As discussed above, Magnayes dismissal was tainted with irregularity because the notice given to him comes short of the notice contemplated by law and jurisprudence. The CA correctly exercised jurisdiction over this case where standards of due process had been patently breached.

Having been illegally dismissed, Magnaye should be reinstated to his former position without loss of seniority and paid backwages and other monetary benefits from the time of his dismissal up to the time of his reinstatement. In our decision in Civil Service Commission v. Gentallan,29 we ruled that for reasons of justice and fairness, an illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of his illegal dismissal until his reinstatement because he is considered as not having left his office.

WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the Court of Appeals and its June 11, 2008 Resolution denying the motion for reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.

SO ORDERED.[G.R. No. 130872. March 25, 1999]

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

BELLOSILLO, J.:

Facts:

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son and co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Santa Cruz, and currently a member of its SanguniangBayan (SB) representing the Federation of Kabataang Barangays. In the 1985 election of the Kabataang Barangay Jowil Red won the KB Chairman of Barangay Matalaba, Santa Cruz. Red was appointed by then President Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. However, Mayor Lecaroz informed Red that he could not yet sit as member of the municipal council until the Governor of Marinduque had cleared his appointment. When Red finally received his appointment papers, President Aquino was already in power. But still Red was not allowed to sit as sectoral representative in the Sanggunian. Meanwhile with the approval of the Mayor, Lenlie continued to receive his salary for more than a year. Finally Red was able to secure appointment papers from the Aquino administration after three years and nine months from the date he received his appointment paper from President Marcos. Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against the Mayor and Lenlie arising from the refusal of the two officials to let him assume the position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13) informations for estafa through falsification of public documents against petitioners, and one (1) information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against the Mayor alone. The Sandiganbayan rendered a decision finding the two accused guilty on all counts of estafa. However, with respect to the charge of violation of RA No. 3019, The Sandiganbayan acquitted Mayor Lecaroz. The Sandiganbayan, having denied their motion for reconsideration, the accused, elevated their case to the Supreme Court.

Issue:Whether or not an officer is entitled to stay in office until his successor is appointed or chosen or has qualified.

Held: YES.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide -

Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980.

In the case of the members of the sanggunian representing the association of barangay councils and the president of the federation of kabataang barangay, their terms of office shall be coterminous with their tenure is president of their respective association and federation .

x x x x

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November 1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an authenticated copy of his appointment papers; neither did he take a valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already expired. The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB.

The Supreme Court disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law.

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified.The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices,and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdov