THE OMBUDSMAN, FACT-FINDING AND INTELLIGENCE BUREAU, Office of the Ombudsman, and PRELIMINARY INVESTIGATION AND ADMINISTRATIVE ADJUDICATION BUREAU, Office of the Ombudsman, petitioners, vs. NESTOR S. VALEROSO,

FACTS:

Nestor Valeroso, the respondent, then occupying the position of Director II at the Bureau of Internal Revenue was charged with Perjury and Dishonesty, Flasification of Official Documents and Conduct prejudicial to the Best interest of the Service by the Fact finding and intelligence bureau of the office of the ombudsman. Such accusations were due to the petitioner’s failure to disclose his ownership of several properties and unexplained increase in net worth. This placed the petitioner under preventive suspension for six months without pay.

The respondent filed with the Court of Appeals a petition for certiorari in order to nullify the preventive suspension against him. The petition is instituted on the ground that the element of strong evidence of guilt was lacking, and that due process was denied when he was not informed about the nature of the charges against him.

Issue:

Whether or not the preventive suspension imposed by the Ombudsman is valid?

Held:

1. No. There is no dispute as to the power of the Ombudsman to place a public officer charged with an administrative offense under preventive suspension. That power is clearly confined under Section 24 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, which reads:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. Clear it is from the above that the law sets forth two conditions that must be satisfied to justify the issuance of an order of preventive suspension pending an investigation, to wit:1. The evidence of guilt is strong; and2. Either of the following circumstances co-exist with the first requirement:

a. The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;

b. The charge would warrant removal from the service; orc. The respondent's continued stay in office may prejudice the case filed

against him.Here, respondent was charged with dishonesty, among other administrative and

criminal charges, and the Ombudsman particularly found strong evidence to support said charge on the specified ground of "non-disclosure of assets and business interests." Questions on the strength of the evidence to support the preventive suspension order are squarely within the jurisdiction of the Ombudsman.

The rule is that whether the evidence of guilt is strong, as required in Section 24 of R.A. No. 6770, is left to the determination of the Ombudsman by taking into account the evidence before him. In the very words of Section 24, the Ombudsman may preventively suspend a public official pending investigation if "in his judgment" the evidence presented before him tends to show that the official's guilt is strong and if the further requisites enumerated in Section 24 are present. The Court cannot substitute its own judgment for that of the Ombudsman on this matter, absent clear showing of grave abuse of discretion on the part of respondent Ombudsman. Moreover, the charge of dishonesty is a grave offense which, if duly proven, merits the penalty of dismissal from the service on commission of the first infraction.

CIVIL SERVICE COMMISSION, vs. PEDRO O. DACOYCOY,

PARDO, J.:

FACTS: On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism.

The Civil Service Regional Office No. 8, Tacloban City, filed charges against him. Accordingly, the Civil Service Commission promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct. However, the Civil Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.

respondent Dacoycoy filed a motion for reconsideration; however, the Civil Service Commission denied the motion.

respondent Dacoycoy filed with the Court of Appeals a special civil action for certiorari with preliminary injunctioni[6] to set aside the Civil Service Commission’s resolutions.the Court of Appeals promulgated its decision reversing and setting aside the decision of the Civil Service Commission, Hence, this appeal.

ISSUE: W/N there is nepotism.

YES.

The law defines nepotism as follows:

“Sec. 59. Nepotism. – (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

“As used in this Section, the word “relative” and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.”

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office, and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT, who recommended the appointment of Rito. However, it was respondent Dacoycoy who certified that “funds are available for the proposed appointment of Rito Dacoycoy” and even rated his performance as “very satisfactory”. On the other hand, his son Ped stated in his position description form that his father was “his next higher supervisor”. The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent’s two sons and placed them under respondent’s immediate supervision serving as driver and utility worker of the school. Both positions are career positions.

To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism

GLORIA VS CA

FACTS:

Private respondents are public school teachers. On various dates in September and October 1990, during the teachers' strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations. (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered dismissed from the service while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months The MSPB denied their appeal. The appellate court ruled that private respondents were entitled to the payment of their salaries, allowances and other benefits during the period of their suspension beyond the 90-day period of preventive suspension although they were found guilty of violation of reasonable office rules and regulations for having been absent without leave during the teachers’ strike and were reprimanded.

Petitioner contended that the continued suspension of private respondents was due to their appeal, hence, the government should not be held answerable for payment of their salaries. Moreover, petitioner claimed that private respondents are considered under preventive suspension during the period of their appeal, thus, they are not entitled to the payment of their salaries during their suspension.

ISSUE: W/N he is entitled to salaries during the period of suspension

HELD: The Court ruled that the preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct or neglect of duty is authorized by the Civil Service Law. It cannot be considered unjustified even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the employee shall be automatically reinstated. However, although employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, the Court did not agree with the petitioner that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exornerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. To sustain the government’s theory would be to make the administrative decision not only executory but final and executory. Consequently, the Supreme Court affirmed the decision of the Court of Appeals with modification as to the computation of the salaries awarded to private respondents.

TERMINATION OF OFFICIAL FUNCTIONS

G.R. No. L-89 February 1, 1946

JOSE TOPACIO NUENO, MANUEL DE LA FUENTE, EUSTAQUIO C. BALAGTAS, and DELIA C. DIÑO,petitioners, vs.GERARDO ANGELES, AGATON EVANGELISTA, ANDRES SANTA MARIA, VICENTE G. CRUZ, AMADO V. HERNANDEZ and FELICIDAD MANUEL, respondents.

Facts: Petitioners were elected as members of the Municipal Board of the City of Manila in the general elections held on December 10, 1940. They were slated to assume office for a term of three years. However the elections of 1943 did not push through as the city was then under Japanese occupation. In 1945 due to physical impossibility of conducting a special election the President of the Commonwealth appointed the 6 respondents as members of the Board. Petitioners then instituted this action against respondents on the ground that the petitioners having been elected as members of the Municipal Board of Manila in the general election held in December 1940 for three years, their term of office has not yet expired because they have not served for said period due to the Japanese occupation. They also contended that in view of the foregoing, they are entitled to hold-over or continue in office until their successors are elected and qualified, and therefore respondents’ appointments are null and void.

Issue: Whether or not petitioners are entitled to hold over their positions until such time when their successors shall have qualified and elected?Held: No. The contention that petitioners are entitled to continue in office because they have not completely served for three years due to the war, is untenable, even assuming that they had not discharged the duties of their office during the Japanese occupation of Manila. For the simple reason that the term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold the office as of light, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. There is no principle, law or doctrine by which the term of an office may be extended by reason of war.Regarding the hold-over principle, our lawmakers have followed the policy and practice of those States that provide expressly in their statutes for holding over of provincial, city and municipal officers as provided in the Revised Administrative Code. However, the provisions relating to said principle have

been deemed repealed by the passage of Commonwealth Act No. 357 of the Election Code. Section 16 of the said law states that whenever (1) the election fails to take place on the date fixed by law (as in the case at bar), or (2) results in a failure to elect, or (3) the officer-elect dies before assumption of office, or (4) his election is not confirmed for disloyalty, or (5) he fails to qualify for reason of non-eligibility of other reasons, the successor, to fill the vacancy shall be elected in a special election, if the President does not exercise his discretion to fill the vacancy in the last three cases (3), (4) and (5) by appointment. In the case at bar, since there was a physical impossibility of holding a special election, the same section 16 empowers the President to appoint a person to fill such temporary vacancy or interregnum, and the person so appointed shall hold the office until the permanent successor has been elected or appointed to fill the office for the unexpired term. Thus, the legislature expressly intended that there shall be no hold-over of the previous occupant of the elective seat prior to assumption of office of his successor. From the foregoing it clearly appears that petitioners are not entitled to hold-over, and after the expiration of their term of office on December 31, 1943, the offices of members of the Municipal Board of Manila became vacant from January 1, 1944, because of failure to hold the regular election on the second Tuesday of December 1943 and the special election, and consequently to elect the would-be incumbents. And during the interregnum or temporary vacancy from January 1, 1944, until the said special election is held and new members elected or, in case of failure to elect, appointed by the President (under section 16 [c] and [d] of Commonwealth Act No. 357) the President had, under section 16 (a) of the same Act, the power to appoint the respondents or any other, at his discretion, to fill said temporary vacancy or vacancies. As the petitioners are not entitled to hold-over or continue, after the expiration of their term, in the offices claimed by them and held now by the respondents, they have no right to bring the present action and impugn the validity of the latter's appointments.

G.R. No 94070 April 10, 1992

ROSALINDA DE PERIO SANTOS, petitioner, vs.EXECUTIVE SECRETARY CATALINO MACARAIG and SECRETARY RAUL MANGLAPUS, respondents.

EN BANC, GRIÑO-AQUINO, J.:

FACTS:

This is a petition for certiorari* seeking to set aside Administrative Order No. 122 of the Office of the President, finding the petitioner guilty of dishonesty and meting upon her, after appreciating certain mitigating circumstances in her favor, the penalty of reprimand with a warning that a repetition of the same or similar offense will be dealt with more severely. The President affirmed Assignment Order No. 58/88 dated April 27, 1988 of the Secretary of Foreign Affairs recalling the petitioner to the home office from her post as permanent representative to the Philippine Mission to the United Nations and other International Organizations (MISUNPHIL, for short) in Geneva, Switzerland.

Petitioner Rosalinda de Perio-Santos, a career service officer with the rank of Chief of Mission II and Ambassador Extraordinary and Plenipotentiary, was appointed on July 24, 1986, by her Excellency, President Corazon C. Aguino, to the position of Permanent Representative of the Philippines to the Philippine Mission to the United Nations and other International Organizations with station in Geneva, Switzerland. On April 6, 1987, petitioner sought a leave of absence from the Department of Foreign Affairs (DFA) to spend the Easter Holidays in New York, U.S.A. Before they could leave Geneva, petitioner received instructions from the home office directing her to proceed to Havana as a member of the Philippine delegation to the UNCTAD G-77 Preparatory Conference from April 20-26, 1987. Instead of buying an economy roundtrip ticket, she used for the Geneva-New York-Geneva portion of her trip the two (2) discounted tickets costing only SFr. 1,597 for herself and her daughter Pia. They left Geneva for New York en route to Havana on April 15, 1987. On the same day, the DFA approved her application for a

leave of absence with pay from April 27 to May 1, 1987. Instead of claiming reimbursement for SFr. 2,996, she requested, and received, reimbursement of only SFr. 1,597 which she spent for the Geneva to New York, and New York to Geneva portion of her trip, thereby effecting savings of SFr.1,399 for the Government. On September 21, 1987, the DFA required her to refund the amount representing her daughter's round-trip ticket since DFA received a copy of the "facture" from the travel agency showing that the amount of SFr.1,597 was in payment of (a) 1 billet adulte-Geneva/New York/Geneva SFr. 950, and (b) 1 billet enfant-Geneva/New York/Geneva SFr. 673; and that the sum of SFr. 673 represented the cost of her daughter's portion of the ticket.

ISSUES:

1. whether or not petitioner was guilty of dishonesty.2. whether or not the order of recall was invalid.

HELD:

1. No. Her failure to disclose the fact that her discounted tickets included the fare for her child, was harmless and inconsequential as the two (2) discounted Geneva-New York-Geneva tickets for herself and her daughter were in fact inseparable, intransferable, non-cancellable and non-refundable, in effect one whole fare only, for purposes of the discount. The Court believes however that she did not intend to falsify or conceal the truth when she filed a claim for the refund of the total cost of her discounted tickets (SFr.1,597). Her claim for the whole discounted fare was based on the fact that her daughter's ticket was inseparable from her own fare. They had to go together to be entitled to the special discount. Their fare was indivisible, hence, the Government's offer to shoulder only the petitioner's portion of the discounted fare (SFr. 950), excluding her daughter's portion (SFr. 647) was neither fair nor reasonable.

2. No. the Court is not disposed to disturb the order of the DFA and the Office of the President recalling the petitioner to the home office. There is no merit in the petitioner's contention that her tour of duty in Geneva was for four (4) years, as provided in Section 260 of P.D. No. 1578 ("Instituting the Administrative Code of 1978'), thus:

(b) Tour of duty — (1) The tour of duty of a foreign service officer at any post shall be four (4) years commencing on the date of his arrival at the post, after which he shall be transferred to another post.

As pointed out by the Solicitor General, P.D. 1578 was one of those unpublished "secret" decrees which this Court in Tañada, et al. vs. Tuvera, et al., 146 SCRA 446, declared to be inoperative or without legal force and effect. P.D. 1578 was expressly repealed on May 5, 1987, by Executive Order No. 168, entitled "REPEALING PRESIDENTIAL DECREE NO. 1578 ENTITLED 'INSTITUTING THE ADMINISTRATIVE CODE OF 1978.'"

The applicable law therefore is Section 6, Part B, Title III, of R.A. 708, "The Foreign Service Act of the Philippines," enacted on June 5, 1952, providing that:

Sec. 6. Assignments and Transfers — A Foreign Service Officer may be assigned by the Secretary to serve in the Department or in a diplomatic or consular post abroad: Provided, however, that the minimum period during which he may serve in

any foreign post shall be one year and the maximum period four years, except in case of emergency or extraordinary circumstances, in which event he may be tranferred from one foreign post to another or to the Department by the order of the Secretary without regard to his length of service in his former post.

Since the petitioner had been appointed to her post on July 24, 1986, she had already served the minimum one-year period of service when her recall on April 22, 1988 came. Her reassignment to Manila did not have to be explained and justified by the Secretary of Foreign Affairs nor the President of the Philippines

MARIO D. ORTIZ vs.COMMISSION ON ELECTIONS and COMMISSION ON AUDITG.R. No. 78957. June 28, 1988

Facts:Petitioner was appointed Commissioner of the Commission on Elections (COMELEC) by then

President Ferdinand E. Marcos "for a term expiring May 17, 1992." On March 5, 1986, petitioner sent President Corazon C. Aquino a letter which reads that he hereby places his position at President Aquino’s disposal. On March 25, 1986, the Freedom Constitution was promulgated, Article III thereof provides: xxx SEC. 3. Any public officer or employee separated from the service as a result of the reorganization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.

On July 21, 1986, the Deputy Executive Secretary conveyed the information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their respective resignations, effective immediately." After the presidential acceptance of said "resignations," new Commissioners composed the COMELEC, to which Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications for retirement.

To justify their petitions for retirement and their requests for payment of retirement benefits, former COMELEC Commissioners invoked Section 1 of Republic Act No. l568 which provides that: when the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office xxx Provided, That in case of resignation, he has rendered not less than twenty years of service in the government, he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation.

The COMELEC denied the applications for retirement of the Commissioners on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as amended.” Petitioner Ortiz moved for the reconsideration of said resolution; but the same was denied by the COMELEC. Petitioner appealed to the Chairman of the COA, who referred the same to COMELEC. The same, however, was not acted upon. Hence, this petition. The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office, and, therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement benefits.Issue:

Whether or not a constitutional official whose "courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom Constitution may be entitled to retirement benefits under Republic Act No. 1568, as amended.Held:

Petitioner's separation from government service as a result of the reorganization ordained by the then nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment. Resignation implies an expression of the incumbent in some form, express

or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority.

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in public administration.

Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power. A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional officials like the petitioner whose removal from office entails an impeachment proceeding.

The curtailment of his term, not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no removal but an expiration of his term. As he is deemed to have completed his term of office, petitioner should be considered retired from the service.

G.R. No. 149356 March 14, 2008REPUBLIC OF THE PHILIPPINES represented by the Department of Trade and Industry, Petitioner, vs.WINSTON T. SINGUNFACTS:Singun, the respondent, a former Chief Trade and Idustry Development Specialist in Cagayan, wrote a resignation letter to the Hipolito, regional director of DTI. However, prior to the acceptance of the said resignation, undersecretary Ordonez, issued an order detailing the respondent to the Office of the Undersecretary. However, Ordonez proclaimed that such detail order is without effect since, the resignation of the respondent was already accepted as evidenced by a memorandum the latter had issued. The respondent contended that his resignation is without effect because Ordonez failed to issue a notice accepting his resignation and such was still revocable.ISSUEWhether respondent validly resigned from DTI-RO2 effective 14 January 2000?Whether the detail order issued by Undersecretary Ordoñez effectively withdrew respondent’s resignation.HELD1. NO. There was no indication that respondent received a copy of his 12 November 1999 application for leave of absence and resignation as accepted by Director Hipolito. Neither was there any indication that respondent received Director Hipolito’s 12 November 1999 Memorandum informing him of the acceptance of his resignation. Therefore, we affirm the ruling of the Court of Appeals that respondent’s resignation was incomplete and inoperative because respondent was not notified of the acceptance of his resignation.Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority.28 To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority.In our jurisdiction, acceptance is necessary for resignation of a public officer to be operative and effective. Without acceptance, resignation is nothing and the officer remains in office.30 Resignation to be effective must be accepted by competent authority, either in terms or by something tantamount to an acceptance, such as the appointment of the successor.31 A public officer cannot abandon his office before his resignation is accepted, otherwise the officer is subject to the penal provisions of Article

23832 of the Revised Penal Code. The final or conclusive act of a resignation’s acceptance is the notice of acceptance. The incumbent official would not be in a position to determine the acceptance of his resignation unless he had been duly notified therefor.2. YES. Until the resignation is accepted, the tender or offer to resign is revocable.36 And the resignation is not effective where it was withdrawn before it was accepted.37In this case, since respondent’s resignation was not finally and conclusively accepted as he was not duly notified of its acceptance, respondent could validly withdraw his resignation. There was no need for Director Hipolito to accept the withdrawal of resignation since there was no valid acceptance of the application of resignation in the first place. Undersecretary Ordoñez also validly issued the detail order as respondent had not effectively resigned from DTI-RO2.

ESTRADA VS DESIERTOFacts: In the May 11, 1998 elections, petitioner Joseph Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. From the beginning of his term, however, petitioner was plagued by problems that slowly eroded his popularity. On October 4, 2000, Ilocos Sur Governor Chavit Singson, a longtime friend of the petitioner, accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. The expose’ immediately ignited reactions of rage. On November 13, 2000, House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives or more than 1/3 of all the members of the House of Representatives to the Senate. On November 20, 2000, the Senate formally opened the impeachment trial of the petitioner. On January 16, 2001, by a vote of 11-10, the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name “Jose Velarde.” The ruling was met by a spontaneous outburst of anger that hit the streets of the metropolis. Thereafter, the Armed Forces and the PNP withdrew their support to the Estrada government. Some Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs resigned from their posts. On January 20, 2001, at about 12 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. On the same day, petitioner issued a press statement that he was leaving Malacanang Palace for the sake of peace and in order to begin the healing process of the nation. It also appeared that on the same day, he signed a letter stating that he was transmitting a declaration that he was unable to exercise the powers and duties of his office and that by operation of law and the Constitution, the Vice-President shall be the Acting President. A copy of the letter was sent to Speaker Fuentebella and Senate President Pimentel on the same day.

After his fall from the power, the petitioner’s legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion.

Issues: (1) Whether or not the petitioner resigned as President(2) Whether or not the petitioner is only temporarily unable to act as President

Held: Petitioner denies he resigned as President or that he suffers from a permanent disability.

Resignation is a factual question. In order to have a valid resignation, there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before leaving Malacanang Palace. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after Jan. 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. The Court had an authoritative window on the state of mind of the petitioner provided by the diary of Executive Sec. Angara serialized in the Phil. Daily Inquirer. During the first stage of negotiation between Estrada and the opposition, the topic was already

about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. During the second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. The Court held that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic, but with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of the nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to reassume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of the country; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.The Court also tackled the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. The inability claim is contained in the Jan. 20, 2001 letter of petitioner sent to Senate Pres. Pimentel and Speaker Fuentebella. Despite said letter, the House of Representatives passed a resolution supporting the assumption into office by Arroyo as President. The Senate also passed a resolution confirming the nomination of Guingona as Vice-President. Both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability. The Court cannot pass upon petitioner’s claim of inability to discharge the powers and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue which cannot be decided by the Court without transgressing the principle of separation of powers.

ELISA O. GAMBOA, et al. vs. HONORABLE COURT OF APPEALS, et al.G.R. No. L-38068 September 30, 1981GUERRERO, J.:

Facts:

Petitioners are the defendants in a civil case filed by herein private respondents with the CFI of Rizal, for damages. Judgment was rendered by the trial court (then presided over by Judge Vivencio Ruiz) in favor of the private respondents. The judgment having become final, a writ of execution was issued and accordingly, a public auction sale was conducted by the Sheriff who issued a Sheriff's Certificate of Sale of a Toyota Corolla taxi, model '69, and of a certificate of Public Convenience to operate 60 units of taxicabs, in favor of private respondents, represented by Atty. Jesus Suntay, their counsel of record. Thereafter, herein petitioners filed an "Urgent Motion to Set Aside Sale on Execution" on the grounds that the execution sale was attended by fraud, mistake and/or irregularity "so serious as to have worked a grave injustice to defendants herein." The then presiding Judge Ruiz denied said motion. Herein petitioners filed a Motion for Reconsideration which Judge Ruiz granted, setting aside the execution sale on the grounds that it is defective and irregular.

Later, Judge Vivencio Ruiz tendered his resignation pursuant to and in compliance with Letter of Instruction No. 11 issued by the President of the Philippines. The aforesaid order of Judge Ruiz was then, setting aside the execution sale, promulgated and filed with the Clerk of Court. Subsequent thereto, Judge Ruiz received the letter of acceptance by the President. Respondent Judge Arsenio Alcantara was appointed in his stead.

Private respondents filed their "Motion to Annul and/or Set Aside Order, dated September 18, 1972". Respondent Judge Alcantara granted private respondents' motion, and declared as null and void the order of the former Judge Ruiz, thereby restoring the validity and efficacy of the execution sale in favor

of private respondents. The reasons stated in the questioned order were: (1) that Judge Ruiz ceased to be a member of the Judiciary on the date of his resignation that was October 4, 1972, or, on the date of acceptance thereof by the President in his letter of October 6, 1972; (2) that the order of September 18, 1972 was filed with the Clerk of Court only on October 18, 1972 — to be valid and binding, a judgment or order must be duly signed and promulgated during the incumbency of the Judge whose signature appears thereon; (3) that Judge Ruiz cannot even be considered a de facto officer after October 4 or 6, 1972 because — (a) the filing of the resignation of a public officer in the proper office, without any objection constitutes a sufficient acceptance and notice of acceptance is not necessary; (b) good faith on the part of Judge Ruiz did not exist when the order of September 18, 1972 was filed and promulgated with the Clerk of Court on October 18, 1972, "on account of the fact that all orders except litigated order of September 18, 1972 filed with the Clerk of Court on October 18, 1972 bore October dates as attested by the certification of the Clerk of Court, and if it were true that the contested order was made on September 18, 1972, why was it not released earlier than October 18, 1972 when several orders or decisions bearing all October dates were released ahead of the order in question".

Petitioners filed their Motion for Reconsideration; however, respondent Judge denied petitioner's motion. Petitioners likewise filed a "Motion for Reconsideration and Motion to Adduce Evidence in Support of Motion" but it was denied for lack of sufficient merits.

Issue:

Whether or not Judge Vivencio M. Ruiz ceased to be judge de jure or de facto upon acceptance of his resignation by the President of the Philippines.

Ruling:

No. One of the ways of terminating official relations is by resignation. To constitute a complete and operative resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment 6 and a resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. 7 In Our jurisprudence, acceptance is necessary for resignation of a public officer to be operative and effective, otherwise the officer is subject to the penal provisions of Article 238 of the Revised Penal Code on Abandonment of office or position. Clearly, a public officer cannot abandon his office or position before his resignation is accepted but the incumbent official would not be in a position to determine the acceptance of his resignation unless he has been duly notified therefor.

It must be noted that respondent Court of Appeals underscored the undeniable fact that while the President's letter of acceptance was dated October 6, 1972, it was completely processed only on October 20, 1972 and officially received by Judge Ruiz on October 21, 1972. Thus, respondent Court's holding that even if there were a strict interpretation as to when Judge Ruiz ceased to be a member of the Judiciary although petitioners maintain that the date of his cessation from office is October 6, 1972, still, his acts before the official notification of the acceptance of his resignation are those of a de facto officer, and therefore, valid, is correct. Respondent Court of Appeals has also pointed out correctly that the underlying principle of de facto acts is the protection of third parties and the public. It is for this reason of public interest that the Secretary (now Minister) of Justice issued Circular No. 70 dated October 13, 1972, directing all categories of judges and fiscals to stay in their official stations and not to depart therefrom without previous permission from the Office (referring to Ministry of Justice) and to continue discharging their functions until notified of the action taken on their letters of resignation.

SB of San Andres Catanduanes v. CAG.R. No. 118883January 16, 1998Pnaganiban, J:

FACTS:

Augusto T. Antonio was elected bgy captain of Sapang Palay, San Andres. In that capacity, he was appointed by the President as member of the Sangguniang Bayan of the Municipality of San Andres and was later elected president of the Association of Barangay Councils (ABC).Meanwhile, the election for the president of Federation of the Association of Barangay Councils (FABC) was declared void by theDILG for lack of quorum and there organization in the provincial council became necessary. Being president of ABC, the DILG Sec. appointed Antonio as temporary member of the Sangguniang Panlalawigan of the Province of Catanduanes. As such, Antonio tendered his resignation as member of SB.The VP of ABC, Nenito Aquino was appointed as member of SB in replacementof Antonio.Later SC, invalidate the decision of the DILG with regard to the election of the FABC president and also the appointmentof Antonio as member of SP. Antonio wrote a letter to SB to reassume his position but it was denied on the ground that he has already resigned.

ISSUE:WON there is an effective resignation of abandonment of office.

HELD:Antonio cannot assume his previous position because although there was no effective resignation, there was an abandonment of office. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and(c) an acceptance by the proper authority .In this case, there is no effective resignation because there is no evidence that the resignation was accepted by any government functionary or office. However, Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post. This is clear when he did not simultaneously discharge the duties and obligations of both positions. Neither did he, at that time, express an intention to resume his office as member of the SB. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the contested office. Antonio’s failure to promptly assert hisalleged right implies his loss of interest in the position. His overt acts plainly show that he really meant his resignation and understood its effects

FRANCISCO A. TAN vs. PEDRO M. GIMENEZG.R. No. L-12525 February 19, 1960PADILLA, J.:

Facts:This is a petition for review of the decision of the Auditor General denying the petitioner's claim for back salaries.

The petitioner was head teacher in Habuhab barrio school, Caibiran, Leyte, with P140 monthly salary or P1680 annually. Petitioner was charged with gross misconduct for an immoral act committed in the evening of 4 June 1948. On 14 June 1949 the Commissioner of Civil Service found him guilty and required him "to resign from the service, with prejudice to reinstatement in the teaching service, effective on his last day of duty with pay." He appealed to the Civil Service Board of Appeals. On 26 June 1954 the Civil Service Board of Appeals reversed the decision of the Commissioner of Civil Service and acquitted him of the charge. On 4 June 1955 the petitioner wrote to the Division Superintendent of Schools of Leyte "accepting the reinstatement offered to take effect on June 13, 1955”. However, in view of ill health he applied "for an indefinite sick leave of absence." The petitioner was suffering from "Hypertension (labile)" and the doctor advised him to take a rest.

On 14 July 1955 he wrote to the Division Superintendent of Schools of Leyte requesting payment of back salaries from 6 August 1949 to 12 June 1955, inclusive, at the rate of P1680 per annum, or total of P9,598.58. On 16 February 1956 the Undersecretary of Education disregarded the Director's

recommendation and denied the petitioner's claim on the ground that he was out of the service from 6 August 1949 to 1 March 1951, inclusive, he having been dismissed by the Commissioner of Civil Service for grave misconduct; that although the decision of the Commissioner was reversed on appeal by the Civil Service Board of Appeals, payment of back salaries to him during the period of removal from office was a matter of discretion; and that funds were not available.

Issue:Whether or not the decision of dismissal from service becomes final and executory that prohibits petitioner from receiving back salary

Held:

No. The decision did not become final and executory. The appeal taken by the petitioner to the Civil Service Board of Appeals from the decision of the Commissioner of Civil Service finding him guilty of grave misconduct and requiring him to resign from the service precluded the execution of the decision of the Commissioner of Civil Service. The decision of the Civil Service Board of Appeals reversing that of the Commissioner of Civil Service and absolving the petitioner from the charge was not reversed or modified by the President. It, therefore, became the final decision on the petitioner's case. The petitioner's removal from office was not in accordance with law; his reinstatement became a ministerial duty of the proper authority; and the payment of back salary was merely incidental to reinstatement.

The fact that during the pendency of the petitioner's appeal in the Civil Service Board of Appeals, he worked as clerk in the Office of the Provincial Treasurer of Leyte, does not constitute abandonment of his former position. He was ordered to resign from the service with prejudice to reinstatement and by virtue thereof was prevented from exercising the functions of his position and receiving the corresponding compensation. Finding employment in another branch of the government does not constitute abandonment of his former position. To deny him the right to collect his back salaries during such period would be tantamount to punishing him after his exoneration from the charge which caused his dismissal from the service.

Judgment is hereby rendered declaring the petitioner entitled to receive and the Government bound to pay him the sum of P3,784.57

[G.R. No. 133132. February 15, 2001.]ALEXIS C. CANONIZADO vs. HON. ALEXANDER P. AGUIRREGONZAGA-REYES, J.:

FACTS:

This is a motion for reconsideration to the Court's decision declaring Section 8 of Republic Act No. 8551 void for being violative of petitioners' constitutional guaranteed right to security of tenure.

Petitioners, Commissioners of the National Police Commission, with the effectivity of the law, were removed from office and in their stead appointed respondents Aguirre, Adiong and two other generals. Petitioners seasonably assailed the constitutionality of the said law. Meanwhile, pending appeal, petitioner Canonizado was appointed and assumed the Office of Inspector General of the Internal Affairs Service (IAS) of the Philippine National Police (PNP). The respondents alleged that petitioner's appointment constituted abandonment of his claim for reinstatement since the offices of NAPOLCOM and Inspector General of the IAS are incompatible.

ISSUE:

Whether or not petitioner's appointment constituted abandonment of his claim for reinstatement since the offices of NAPOLCOM and Inspector General of the IAS are incompatible.

HELD:

NO. It is held that there is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. However, the rule does not apply where there was no discharge of functions of the two offices simultaneously; and that acceptance of a second position pending appeal does not constitute abandonment. He had the right to live during the pendency of his appeal and naturally the right to accept any form of employment. Prohibiting petitioner from accepting a second position during the pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional act which under no circumstances can be attributed to him.

Generally speaking, a person holding a public office may abandon such office by nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office.

By accepting the position of Inspector General during the pendency of the present case — brought precisely to assail the constitutionality of his removal from the NAPOLCOM — Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was compelled to do soon the strength of Section 8 of RA 8551. In our decision of 25 January 2000, we struck down the above quoted provision for being violative of petitioners' constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners Edgar Dula Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect on 6 March 1998, petitioners instituted the current action on 15 April 1998, assailing the constitutionality of certain provisions of said law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment.

It is a well settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one person's performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment, but that which proceeds from the nature and relations of the two positions to each other as to give rise to contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of one toward the incumbent of the other.

NOTES: ABANDONMENT, DEFINITION. — Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. In order to constitute abandonment of office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first,

an intention to abandon and second an overt or "external" act by which the intention is carried into effect.

De Los Santos vs. MallareG.R. No. L-3881, August 31, 1950Tuason, J.

FACTS: Eduardo de los Santos, the petitioner was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings.

ISSUE: Whether or not the President may remove a city engineer, a position that is neither confidential, policy determining nor highly technical at pleasure.

HELD: No. Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability. Nevertheless, the President may not remove the city engineer at pleasure as Section 2545 of the Revised Administrative Code which authorized the same was repealed when the Constitution took effect.

G.R. No. 78053 June 4, 1990FRANCISCO L. MENDOZA vs. HON. LOURDES R. QUISUMBING as Secretary of Education, Culture and SportsGUTIERREZ, JR., J.:

(The issues raised in these consolidated cases refer to the validity of various reorganization programs in different agencies and/or departments of the government implementing the orders issued pursuant to the President's Proclamation No. 1 declaring as policy the reorganization of the government and Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." In addition to the pleadings filed, the parties discussed the basic issues raised in these petitions during the hearings held on January 24 and 31, 1989.)

FACTS:

In G.R. No. 78053, the petitioner questions the validity of the March 19, 1987 letter-order of the then Secretary of Education, Culture and Sports (DECS) Lourdes R. Quisumbing which terminated his employment as Schools Division Superintendent of Surigao City.

Petitioner Mendoza was the Schools Division Superintendent of Surigao City who was reappointed by respondent Quisumbing as such with a "PERMANENT" status. He has served the Department of Education for forty-two (42) years, moving up the ranks in the public schools system. Executive Order No. 117 was issued by the President reorganizing the DECS. The petitioner received the letter-order informing him that pursuant to Executive Order No. 117 which provides for a reorganization of the DECS and the implementing guidelines thereof he would be considered separated from the service effective without prejudice to availment of benefits. The letter particularly stated that consistent with the mandate of reorganization to achieve greater efficiency and effectiveness, all incumbent officials/personnel are on 'holdover' status unless advised otherwise. In his place, Secretary Quisumbing appointed Dr. Socorro L. Sering, on a permanent status on March 2, 1988. In the meantime, the petitioner wrote Secretary Quisumbing requesting reconsideration of the letter-order. The letter was forwarded to the Reorganization Appeals Board (RAB). The motion for reconsideration remained unacted upon, hence on June 24, 1987, the petitioner filed the instant petition for certiorari, prohibition and mandamus with preliminary injunction. In a resolution dated September 19, 1988, the RAB recommended that action on the petitioner's letter- reconsideration be deferred pending resolution of the instant petition.

The petitioner in G.R. No. 78053 argues against the "holdover" feature of the challenged order in this manner:

xxx xxx xxx

... To reduce four hundred thousand officers and employees most of them permanent, to holdover status preparatory to their eventual separation from the service many of them beyond middle age and too late to start a new career, is not only tyranny but cruelty of the first magnitude. Reorganizations can be accomplished without disruption of family life, so well respected and protected by the. 1986 (sic) Constitution when it says with honor and oxide, 'The State recognizes sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.' Moreover, this step is not in keeping with the mandate of the Freedom Constitution which tasks the President to make effective the guarantees of human rights against violations thereof. (Rollo, G.R. No. 78053, p. 5)

ISSUE:

Whether or not the separation of the petitioner from office allegedly resulting from the reorganization is valid.

HELD:

NO. The ritual invocation of the abolition of office is not sufficient to justify the termination of the services of an officer or employee in such abolished office. It is a paramount principle in Public Officers' Law that the power to abolish public offices vested in the legislature is not absolute. It is subject to the limitations that it be exercised in good faith, should never be for personal or political reasons, and cannot, be implemented in a manner contrary to law. If an executive department is bloated with unnecessary employees, there can be no objection to a law abolishing the useless or non-essential items.

Speaking through Mr. Justice J.B.L. Reyes, the Court was very emphatic in Cruz v. Primicias, Jr., supra that an abolition which is not bona-fide but is merely a device to circumvent the constitutional security of tenure of civil service employees is null and void.

These principles were reiterated in De la Llana v. Alba (112 SCRA 294 [1982]) where we sustained a bona-fide reorganization, to wit:

...It is a well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. And of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office....' As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. (at pp. 321-322).

It is apparent that the petitioner's termination as Schools Division Superintendent of Surigao City was pursuant to the public respondent's view that under Section 24 of Executive Order No. 117 all incumbent officials/personnel of DECS were on hold-over status unless advised otherwise.

The dismissal of all employees and their being placed on holdover status is particularly objectionable in the DECS. There could have been no intention to get rid of hundreds of thousands of school teachers. The use of "reorganization" even under the concept advocated by the Solicitor General appears trivial if not unnecessary. To use reorganization of the biggest Department in the government in order to avoid the hassles of bringing administrative charges against Mendoza and perhaps a few other alleged persona-non-gratas like him is precisely what this Court rejects when we apply the bona-fide rule. One does not burn down a house if his purpose is to roast alleged pests. There was grave abuse of discretion when the petitioner's services were terminated by a mere letter-order on the justification that the petitioner, together with the entire personnel of the DECS, was only in a hold-over capacity. If the petitioner is guilty of wrongdoing, it is an easy matter to the charges against him instead of placing the entire DECS on hold-over status in order to run after him.

The petition is GRANTED. The LETTER-ORDER dated MARCH 19, 1987 issued by the public respondent which terminated the services of the petitioner is SET ASIDE. The successor of the public respondent, the former Lourdes R. Quisumbing as Secretary of Education, Culture and Sports, is ordered to restore the petitioner to his position as Schools Division Superintendent of Surigao City without loss; of seniority rights and with back salaries reckoned from the date of his termination.

Dario vs. Mison

G.R. No. 81954 August 8, 1989

SARMIENTO, J.:

FACTS:

The President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE” which provides for the reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor. Thereafter, on February 2, 1987, the Filipino people adopted the new Constitution. On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement whereby it provides that by February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the Bureau of Customs by the President of the Philippines on reorganization shall be: a) informed of their re-appointment, or b) offered

another position in the same department or agency or c) informed of their termination. Commissioner Mison also constituted a Reorganization Appeals Board charged with adjudicating appeals from removals under the above Memorandum which notices of termination were sent to 394 Customs officials. Some sought reinstatement from the CSC which the latter granted to 279 of them while the others went directly to the Supreme Court.

Mison also filed a petition questioning the decision of the CSC. Also, RA 6656 was then passed also known as ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION, providing that all officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or agency concerned.

ISSUES: 1.) Whether or not CSC erred in its decision; 2.) Whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the Government to remove career public officials it could have validly done under an "automatic"-vacancy-authority and to remove them without rhyme or reason.

HELD:On the first issue:

NO. All the parties agree on the validity of reorganization per se, leaving the question only on its nature and extent. Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the Government is obliged to prove good faith. In case of removals undertaken to comply with clear and explicit constitutional mandates, the Government is not obliged to prove anything because the Constitution allows it.

Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation directed by Commissioner Mison. And like Dario he claims that under the 1987 Constitution, he has acquired security of tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 — during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the Commissioner of Customs has the power "[t]o appoint all Bureau personnel, except those appointed by the President," and that his position, which is that of a Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization.

The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines, say, on the other hand, that the purpose of reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they are guilty of corruption, they cannot be validly dismissed from the service.

On the second issue:

NO, the provision benefits career civil service employees separated from the service. And the separation contemplated must be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:

1. The separation must not be for cause, and2. The separation must be due to any of the three situations mentioned above.By its terms, the authority to remove public officials under the Provisional Constitution

ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. It can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it cannot be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution - the first stage. We are on the second stage - that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document. What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless, magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm and ruthless propensity that accompanies reorganizations -notwithstanding the fact that removals arising therefrom were "not for cause," and in spite of the fact that such removals would have been valid and unquestionable. Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of inefficiency, graft, and unfitness to render public service. Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in any event, to order dismissals at the Customs Bureau left and right. Lastly, reorganizations must be carried out in good faith. In this case, Mison failed to prove that the reorganization was indeed made in good faith because he hired more people to replace those that he fired and no legitimate structural changes have been made. To sum up, the President could have validly removed officials before the effectivity of the 1987 Constitution even without cause because it was a revolutionary government. However, from the effectivity of the 1987 Constitution, the State did not lose its right to reorganize resulting to removals but such reorganization must be made in good faith.

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