RODELA D. TORREGOZA, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

211 SCRA 230 , July 03, 1992

PARAS, J.:

The petition filed under Rule 65 of the Revised Rules of Court, seeks to review the decision of the respondent Civil Service Commission, dated July 4, 1991, denying the petitioner the privilege granted under Republic Act No. 6850, entitled “An Act to Grant Civil Service Eligibility Under Certain Conditions to Government Employees Appointed Under Provisional or Temporary Status Who Have Rendered a Total of Seven (7) Years of Efficient Service, and for other Purposes”. The petition prays for a Writ of Mandamus to compel the respondent Commission to grant the petitioner the appropriate civil service eligibility pursuant to the aforestated law, for having worked in the Legal Office, Office of the President, Malacañang, Manila, since January 18, 1978, to the present.

The original appointment of the petitioner on January 18, 1978, was one of the six (6) Staff Aide positions, in the aforementioned office, specifically Item No. 198-6, (P.D. No. 1050), issued by then Presidential Assistant Juan C. Tuvera for a period of six (6) months. On June 5, 1978, less than five months after the first appointment, petitioner was given another appointment to the same position effective “as of June 18, 1978” and with a notation that “This appointment is declared confidential.” (Rollo, p. 39)

Obviously, since 1978 to February 8, 1990 when Republic Act No. 6850 became a law, petitioner never left the same position. Then on March 5, 1990, respondent Commission issued the “Rules Implementing Republic Act No. 6850, enabling the petitioner to file her application for the appropriate eligibility to the position she has been occupying for the last thirteen (13) years and having accordingly rendered efficient service. (The Solicitor General’s Comment, pp. 3 & 13)

Petitioner’s request was returned unacted upon by respondent’s field office in Malacañang, Manila for the reason that based on the service record submitted by the Personnel Office of the Office of the President, petitioner’s position had allegedly been declared confidential. (Ibid., p. 4)

In the course of time, after the Salary Standardization Law (Republic Act No. 6758) was passed, the same position was reclassified as Clerk II in July 1989. (Rollo, p. 5)

Subsequently, Deputy Executive Secretary Mariano Sarmiento sent a letter to the respondent dated November 7, 1990, (Petition, Annex “G”) requesting that based on the present certified function and actual duties of the petitioner, the position be restored to the career service and that said petitioner be granted the civil service eligibility under R.A. No. 6850. (Rollo, p. 33).

Respondent Commission denied petitioner’s request on January 28, 1991, after determining that petitioner’s appointment in 1978 was declared by the Office of the President as “confidential in nature”, nevertheless, respondent stated that “an analysis of the duties and responsibilities of the subject position reveals that they are the same with the other positions in the career service x x x” and specifically held, that:

“In view of the foregoing, the request for restoration of the position of Clerk II to career service is hereby granted effective January 1, 1991. However, the incumbent shall continue to occupy the position in a confidential status. Any subsequent appointment to subject position shall be covered by career service policies.” (Petition, Annex “A”)

On February 27, 1991, petitioner moved for reconsideration of the foregoing Decision, but the respondent stood firm in its resolution dated July 4, 1991, by issuing the following ruling:

“After due consideration of the instant request for reconsideration of Torregoza, this Commission finds no ample reason to disturb its Opinion of January 28, 1991. The Office of the President declared her previous appointments as primarily confidential and they were all attested as such by this Commission. These twin actions, i.e., declaration by the Office of the President and confirmation by this Commission made the appointments in question to be primarily confidential. Moreover, granting en arguendo that the position in question may not have been properly and validly declared as primarily confidential, all concerned were of the belief that the appointments issued to Torregoza as Clerk II were indeed primarily confidential. Further, it cannot also be denied that from the time her first appointment was issued up to the time that she requested for the change of the status of her appointment, Torregoza enjoyed the benefits of the primarily confidential nature of her position. She is, therefore, estopped from questioning and impugning the validity of her previous appointments specially now, that she stands to benefit from the provisions of R.A. 6850, with a declaration of her appointment as temporary.

“WHEREFORE, foregoing premises considered, this Commission resolves to deny the instant request of Rodela Torregoza, Clerk II, Office of the President that she be issued a temporary appointment as Clerk II effective July 1, 1989, the effectivity date of RA 6758 for lack of merit. Hence, CSC Opinion of January 28, 1991 is hereby affirmed.” (Petition, Annex “H”)

From the above facts, there are two (2) issues to be resolved, however, one is subordinate to the other. The principal issue is whether or not the writ of mandamus may be issued by this Court to compel the respondent Commission to grant the petitioner the privilege of securing an appropriate civil service eligibility under Republic Act No. 6850. The answer to this is NO. The simple reason being that under the law granting the privilege to government employees, there is a wide latitude of discretion given to the Commission which determines in Section 1 thereof, “who are qualified to avail themselves of the privilege granted under this Act.” With such a discretion, Section 2 of the same law requires the Civil Service Commission to promulgate the rules and regulations to implement this Act using certain standards. Following are the pertinent provisions of Republic Act No. 6850:

“Section1. All government employees as of the approval of this Act who are holding career civil service positions appointed under provisional or temporary status who have rendered at least a total of seven (7) years of efficient service may be granted the civil service eligibility that will qualify them for permanent appointment to their present positions.

“The Civil Service Commission shall formulate performance evaluation standards in order to determine those temporary employees who are qualified to avail themselves of the privilege granted under this Act.

“The civil service eligibility herein granted may apply to such other positions as the Civil Service Commission may deem appropriate.

“Sec.2. The Civil Service Commission shall promulgate the rules and regulations to implement this Act consistent with the merit and fitness principle within ninety (90) days after its effectivity.”

From the above, it is crystal-clear that the Writ of Mandamus will not lie as the responsibility of the respondent Commission in implementing the law is not ministerial, besides, what the law granted is a mere privilege and not a right to those who are qualified according to the standards to be set by the Commission.

In Marcelo vs. Tantuico, Jr., (142 SCRA 439), citing other cases, this Court held that the “Remedy of mandamus is available only to compel the performance of a ministerial duty, but not where the reinstatement involves the exercise of sound judgment and discretion by the appointing power, absent a showing of a clear and certain right by petitioner.”

The other question that this Court deems appropriate for resolution is the categorization of the position in the Legal Office, Office of the President, Malacañang, Manila. This categorization attaches to the entire Office of the President under Republic Act No. 6040, which provides:

“Sec.5. The Non-Competitive Service.—The non-competitive service shall be composed of positions expressly declared by law to be in the non-competitive service and those which are policy-determining, primarily confidential or highly technical in nature.

“The following specific officers and employees shall be embraced in the non-competitive service:

x x x

“(b) The secretarial and office staff of the President, of the Vice-President, of the President of the Senate, of the Speaker of the House of Representatives and of each Member of the Congress of the Philippines including the personnel of all offices of the Chairmen of committees of both Houses of the Congress;”

This particular law has never been repealed and therefore, it is still controlling with respect to the classification of the secretarial and office staff positions in the Office of the President as belonging to the non-competitive service. Thus, any subsequent classification of the same positions has to be made with the specific sanction of the legislative branch. The mere fact that the functions of the position in question are parallel or the same as those in the career civil service positions, do not make the said position eligible for conferment of the civil service eligibility specially given to other government employees in the competitive service.

Furthermore, the classification under the Salary Standardization Act, also known as the “Compensation and Position Classification Act of 1989”, Republic Act No. 6758, did not in effect amend the specific above-quoted provision of R.A. 6040. For the statement of policy of the former is distinctly clear as it states the following:

“SEC.2. Statement of Policy.___It is hereby declared the policy of the State to provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. In determining rates of pay, due regard shall be given to, among others, prevailing rates in the private sector for comparable work. For this purpose, the Department of Budget and Management (DBM) is hereby directed to establish and administer a unified Compensation Position Classification System, hereinafter referred to as the System, as provided for in Presidential Decree No. 985, as amended, that shall be applied for all government entities, as mandated by the Constitution.”

Moreover, this Court noted with alarm the attempt of the respondent Commission in subjecting the position in question to the coverage of the “career service policies” after the incumbent shall have ceased to occupy the position in a confidential status, without the necessary enabling act after the legislative branch of the Government has placed the secretarial and office staff of the Office of the President under the non-competitive category. To do so is a glaring violation of Republic Act No. 6040, the specific provision of which is quoted above.

WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit.

SO ORDERED.

     Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

     Narvasa (C.J., Chairman), and Gutierrez, Jr., J., In the result.

Petition dismissed. [Torregoza vs. Civil Service Commission, 211 SCRA 230(1992)]

THIRD DIVISION

[G. R. No. 140917.  October 10, 2003]

MENELIETO A. OLANDA, petitioner, vs. LEONARDO G. BUGAYONG, PHILIPPINE MERCHANT MARINE ACADEMY, MICHAEL DUMANGENG, PMMA BOARD OF INVESTIGATION, ALFREDO JOSON, LAURO DEL ROSARIO, AURORA BORROMEO, EMMANUEL SANTOS, MARLOWE REYES, TOMAS AQUINO, NORMELITA YANEZA and PEDRO DULAY, respondents.

D E C I S I O N

CARPIO-MORALES, J.:

The present petition for review under Rule 45 of the Rules of Court assails the June 8, 1999 [1] and November 12, 1999[2] orders of the Regional Trial Court (RTC) of Iba, Zambales, Branch 70, in Sp. Civil Action No. RTC-28-I, a petition [3] for quo warranto, mandamus, and prohibition with a prayer for the issuance of a writ of preliminary injunction and damages.

The antecedents of the case are as follows:

On March 17, 1998, twelve officers and employees of the Philippine Merchant Marine Academy (PMMA) including petitioner, then Dean of the College of Marine Engineering and former PMMA Complex Project Officer, filed a verified complaint with the Office of the Ombudsman against respondent Leonardo G. Bugayong (Bugayong), President of the PMMA, charging him with violation of Section 3 (g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, for entering into a grossly disadvantageous contract with the Philippine National Construction Corporation (PNCC) on behalf of PMMA.

On March 22, 1998, petitioner was interviewed live on DZRH by radio anchorman Fernan Enverga regarding the above-said complaint, prompting respondent Bugayong to require petitioner, by Memorandum[4] of March 25, 1998, to explain under oath within 72 hours why no disciplinary action should be taken against him for misusing classified information.

In the meantime, respondent Pedro S. Dulay, Jr. (Dulay), chief security officer of the PMMA, by a March 26, 1998 letter[5] addressed to respondent Bugayong, stated that he heard the radio interview of petitioner and that in discussing publicly without any clearance from respondent Bugayong the Memorandum of Agreement between PMMA and PNCC, petitioner violated the PMMA Faculty Handbook and other civil service rules. Respondent Dulay accordingly requested that a board of investigators be created to look into the matter.

By special order[6] of March 27, 1998, respondent Bugayong relieved petitioner as Dean of the College of Marine Engineering and designated him as acting executive assistant in the Graduate School Program at Pamantasan ng Makati. The order at the same time directed petitioner to turn over all documents, properties and records related to his duties as Dean to respondent Engr. Michael Dumangeng who was appointed by respondent Bugayong as Acting Dean. On even date, petitioner returned respondent Bugayong’s March 25, 1998 Memorandum, arguing that it was not properly addressed to him, his middle initial being incorrect.[7]

Respondent Bugayong thus sent a Memorandum[8] of March 27, 1998 to petitioner similar to that of March 25, 1998, this time putting the correct middle initial of petitioner.

Responding to respondent Bugayong’s March 27, 1998 Memorandum, petitioner argued that his radio interview did not warrant disciplinary action as the complaint with the Office of the Ombudsman was a public document and involved public interest and he was merely exercising his constitutionally guaranteed freedom of expression.[9]

By an April 1, 1998 Memorandum, respondent Bugayong found petitioner’s explanation unsatisfactory and not under oath as required by his Memorandum of March 27, 1998.[10] He thus created a board,[11] by Special Order[12] of April 6, 1998, to investigate the allegations of respondent Dulay in his March 26, 1998 letter.

Sustaining the findings of the board, respondent Bugayong, by decision [13] of August 21, 1998, suspended petitioner for three months for violation of the PMMA Faculty Handbook and the civil service rules.

Petitioner thereupon filed before the RTC of Iba, Zambales on October 27, 1998 a petition against herein respondents for quo warranto,mandamus, and prohibition with prayer for the issuance of a writ of preliminary injunction and damages, claiming that there was no valid cause to deprive him of his position as Dean and that respondent Dumangeng was usurping his position.

Branch 70 of the RTC of Iba, Zambales, by Order of June 8, 1999, dismissed petitioner’s petition, on motion of respondents, in this wise, quoted verbatim:[14]

After considering both motions, the Court finds the grounds relied upon by the respondents, especially that the plaintiff has not exhausted all administrative remedies, the complaint not having alleged the fact of such exhaustion, the same may be dismissed for lack of cause of action. (Underscoring supplied)

Petitioner’s motion for reconsideration[15] of the June 8, 1999 order of the trial court having been denied, the present petition was filed, petitioner assigning to the trial court the following errors:[16]

I.   THE HONORABLE TRIAL COURT COMMITTED GRAVE AND MANIFEST ERROR IN DISMISSING THE PETITION ON THE GROUND OF PETITIONER’S ALLEGED FAILURE TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES.

II.  THE HONORABLE TRIAL COURT COMMITTED A PATENT AND GRIEVOUS ERROR WHEN IT DISMISSED THE PETITION DESPITE THE FILING BY OTHER RESPONDENTS OF THEIR RESPECTIVE ANSWERS.

As a rule, this Court reviews only the specific issues or errors raised by the parties. However, even if not raised, an error in jurisdiction may be taken up.[17]

The PMMA was created pursuant to Republic Act No. 3680, “AN ACT CONVERTING THE PRESENT PHILIPPINE NAUTICAL SCHOOL INTO THE PHILIPPINE MERCHANT MARINE ACADEMY, CONFERRING THE DEGREES OF BACHELOR OF SCIENCE IN MARINE TRANSPORTATION, MAJOR IN NAVIGATION AND SEAMANSHIP, AND BACHELOR OF SCIENCE IN MARINE TRANSPORTATION, MAJOR IN STEAM ENGINE AND ELECTRICAL

ENGINEERING, PROVIDING FOR A MERCHANT MARINE ACADEMY BOARD, DEFINTNG THE BOARD’S RESPONSIBILITIES AND DUTIES, AND FOR OTHER PURPOSES” as amended. It is a government institution, [18] hence, falling under the jurisdiction of the Civil Service Commission:[19]

The test to determine whether a corporation is government-owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a public function, or by incorporation under the general corporation law?  Those with special charters are government corporations subject to its provisions,and its employees are under the jurisdiction of the Civil Service Commission, and are compulsory members of the Government Service Insurance System. (Emphasis and underscoring supplied)

Disciplinary cases and cases involving “personnel actions” affecting employees in the civil service including “appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation” are within the exclusivejurisdiction of Civil Service Commission [20]  which is the sole arbiter of controversies relating to the civil service.

In Corsiga v. Defensor,[21] this Court held:

The Civil Service Commission has jurisdiction over all employees of Government branches, subdivisions, instrumentalities, and agencies, including government-owned or controlled corporations with original charters.  As such, it is the sole arbiter of controversies relating to the civil service.  The National Irrigation Administration, created under Presidential Decree No. 1702, is a government-owned and controlled corporation with original charter. Thus, being an employee of the NIA, private respondent is covered by the Civil Service Commission.

Section 13 Rule VII of the Rules Implementing Book V of Executive Order No. 292 (the Adm. Code of 1987) provides how appeal can be taken from a decision of a department or agency head.  It states that such decision shall be brought to the Merit System Protection Board (now the CSC En Banc per CSC Resolution No. 93-2387 dated June 29, 1993).  It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule XII, Section 6 of the same rules, that decisions of lower level officials be appealed to the agency head, then to the Civil Service Commission.  Decisions of the Civil Service Commission, in turn, may be elevated to the Court of Appeals. Under this set up, the trial court does not have jurisdiction over personnelactions and, thus, committed an error in taking jurisdiction over Civil Case No. 22462. The trial court should have dismissed the case on motion of petitioner and let private respondent question RMO No. 52 before the NIA Administrator, and then the Civil Service Commission. As held in Mantala vs. Salvador, cases involving personnel actions, reassignment included, affecting civil service employees, are within the exclusive jurisdiction of the Civil Service Commission.

(Emphasis supplied and citations omitted)

It was thus error for the trial court, which does not have jurisdiction, to, in the first, place take cognizance of the petition of petitioner assailing his relief as Dean and his designation to another position.  This leaves it unnecessary to dwell on the issues herein raised by petitioner.

WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED.

SO ORDERED.

Puno, J., (Chairman), Panganiban, and Sandoval-Gutierrez, JJ., concur.Corona, J., on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC 

G.R. No. 88167 May 3, 1993

UNIVERSITY OF THE PHILIPPINES and UP SCHOOL OF ECONOMICS, petitioners, vs.THE HON. TEODORO P. REGINO, Presiding Judge, RTC, Br. 84 NATIONAL CAPITAL REGION, Q.C., ANGEL PAMPLINA, and The CIVIL SERVICE COMMISSION, respondents.

The Solicitor General for petitioner.

Araullo, Zambrano, Gruba, Chua Law Firm for private respondent. 

CRUZ, J.:

Private respondent Angel Pamplina, a mimeograph operator at the University of the Philippines School of Economics, was dismissed on June 22, 1982, after he was found guilty of dishonesty and grave misconduct for causing the leakage of final examination questions in Economics 106 under Prof. Solita Monsod. 1

His appeal was denied by the UP Board of Regents, prompting him to seek relief from the Merit Systems Board (MSB), created under Presidential Decree No. 1409. Under Section 5(l) thereof, the MSB has the power to "hear and decide administrative cases involving officers and employees of the civil service."

The University of the Philippines filed a motion to dismiss for lack of jurisdiction on the part of the MSB. UP relied heavily on the case of University of the Philippines vs. Court of Appeals, 2 where it was held that administrative matters involving the discipline of UP employees properly fall under the Jurisdiction of the state university and the UP Board of Regents.

The motion was denied. Thereafter, in its decision dated July 5, 1985, the MSB exonerated Pamplina and ordered his reinstatement with back wages. 3 UP, represented by its Office of Legal Services, moved for reconsideration, but this was denied on January l0, 1986.

UP then appealed to the Civil Service Commission, which on November 4, 1987, issued Resolution No. 87-428, sustaining the MSB. 4 The motion for reconsideration was denied on April 13, 1988.

On June 10, 1988, the petitioners, through their new counsel of record, the Office of the Solicitor General (OSG), filed a second motion for reconsideration. This was also denied on August 31, 1988, on the basis of Section 39(b) of PD 807, providing in part that "only one petition for reconsideration shall be entertained" by the Civil Service Commission.

Pamplina filed a "Manifestation and Motion for Execution of Judgment" of the Commission, copy of which was received by the Office of the Solicitor General on October 4, 1988. 5 This was opposed by the petitioners, but in an order dated November 7, 1988, the Commission granted the motion. Nevertheless, Pamplina was still not reinstated. UP claimed that the resolutions of the Commission had not yet become final and executory.

Pamplina's reaction was to file a petition for a writ of mandamus on November 11, 1988. Judge Teodoro P. Regino of the Regional Trial Court of Quezon City granted the petition on April 27, 1989. The respondents (herein petitioners) were ordered to immediately reinstate Pamplina "to his former position as mimeograph operator without change of status as permanent employee with back wages from June 22, 1982, up to his reinstatement, plus salaries for the period of his preventive suspension covering December 15, 1981 to March 15, 1982." 6

On June 19, 1989, the present petition for certiorari was filed with this Court to seek the annulment of the decision of the trial court and the orders of the Commission directing the reinstatement of Pamplina. The petitioners also pray that the decision of the UP President and Board of Regents ordering Pamplina's dismissal be upheld.

UP contends that under its charter, to wit, Act 1870, enacted on June 18, 1906, it enjoys not only academic freedom but also institutional autonomy. Section 6(e) of the said Act grants the UP Board of Regents the power "to appoint, on recommendation of the president of the university, professors, instructors, lecturers, and other employees of the university, to fix their compensation and to remove them for cause after an investigation and hearing shall have been had." Pamplina was dismissed by virtue of this provision.

The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a), provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the

imposititon of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied)

Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. 7 Under the 1967 Constitution only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(l), which states:

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters.

As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 607 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission.

Coming now to the petition itself, we note that the petitioners received a copy of the resolution denying their motion for reconsideration on April 22, 1968.

In Article IX-A, Section 7, of the 1987 Constitution, which was already in effect at that time, it is provided that:

. . . Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

This provision was reproduced almost verbatim in Section 28 of the Administrative Code of 1987.

The petitioners therefore had thirty days from April 22, 1988, or until May 22, 1988, within which to elevate their case to this Court. They did not do so and instead filed a second motion for reconsideration, which was not allowed under Article IX, Section 39(b) of PD 807. On top of this, the second motion for reconsideration was filed only on June 10, 1988, or 19 days beyond the 30-day reglementary period. 8

In this connection, it is stressed that where a motion for reconsideration of a decision, order or ruling of any Constitutional Commission is denied, the 30-day reglementary period does not begin anew. The petitioner has only the balance of that period (after deducting the time elapsed before the motion was filed) to come to this Court on certiorari.

The assailed orders having become final and executory, Pamplina had every right to seek mandamus to compel their execution. Respondent Judge Regino was quite correct when he issued the questioned writ.

The case cited repeatedly by the petitioners, viz., University of the Philippines vs. Court of Appeals, 9 cannot apply to the present controversy. The reason is that at the time it was promulgated on January 28, 1971, PD 807 had not yet been enacted. PD 807 took affect only in 1975.

In ruling in that case "that the President and Board of Regents of the University of the Philippines possess full and final authority in the disciplining, suspension and removal of the civil service employees of the University, including those of the Philippine General Hospital, independently of the Commissioner of Civil Service and the Civil Service Board of Appeals," Justice J.B.L. Reyes relied on the Civil Service Law of 1959, which then empowered the Civil Service Commission:

Except as otherwise provided by law, to have final authority to pass upon the removal, separation and suspension of all permanent officers and employees in the competitive or classified service and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and to prebcribe standards, guidelines and regulations governing the administration of discipline; (Emphasis supplied)

Article V, Section 9(j), of PD 807 simply gives the Commission the power to "har and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal," without the qualifiying phrase appearing in the above-quoted provision. The petitioners cannot invoke that phrase to justify the special power they claim under Act 1870.

WHEREFORE, the instant petition for certiorari is DISMISSED and the assailed decision of respondent Judge Teodoro P. Regino dated April 27, 1989, and the challenged orders of the Civil Service Commission, are AFIRMED, with costs against the petitioners. It is so ordered.

Narvasa, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Romero, J., took no part.

 

[G.R. No. 131954.  June 28, 2001]ASELA B. MONTECILLO, MARILOU JOAN V. ORTEGA and CHARRISHE DOSDOS, petitioners, vs. CIVIL SERVICE COMMISSION, respondent.

R E S O L U T I O N

QUISUMBING, J.:

Seeking to nullify Resolution No. 972512 for having been issued by respondent Civil Service Commission allegedly with grave abuse of discretion, petitioners assail the validity of CSC Memorandum Circular No. 22, Series of 1991, on the ground that its issuance amounted to an abuse of respondent’s power to promulgate rules and regulations pursuant to the Civil Service Law.

Following our decision in Davao City Water District vs. Civil Service Commission,[1] employee positions in the Metropolitan Cebu Water District (MCWD) were re-classified during the latter part of 1995 to conform with position descriptions and corresponding salary grades in the civil service.   Accordingly, while the personnel structure of the MCWD was being modified, three of its employees -- petitioners Asela B. Montecillo, Marilou Joan V. Ortega and Charrishe Dosdos -- applied for promotional appointment to the position of “Secretary to the Assistant General Manager” or “Private Secretary C”, as the position later came to be known.  At the time of their application, petitioners had been occupying the position of “Department Secretary” and were employed in the MCWD for six to seven years.

When their appointments were forwarded to the Civil Service Commission Field Office (CSC FO) by MCWD General Manager Dulce Abanilla, the CSC FO refused to approve petitioners’ appointments as “permanent” on the ground that the position applied for was a “primarily confidential” and “co-terminous” position. This ruling was upheld by the CSC Regional Office[2] and affirmed on appeal by respondent.[3]

In its Resolution No. 972512, respondent based its conclusions on CSC Memorandum Circular No. 22, Series of 1991, which reads:

To: ALL HEADS OF DEPARTMENTS, BUREAUS AND AGENCIES OF THE NATIONAL/LOCAL GOVERNMENTS, INCLUDING GOVERNMENT-OWNED AND/OR CONTROLLED CORPORATIONS

Subject: Classification of Private Secretary Position

The Civil Service Commission issued Memorandum Circular No. 14, s. 1987 which identified the personal and confidential positions located in the offices of elective officials, Department heads and other officials of cabinet rank whose tenure is at the pleasure of the President as well as Chairman and Members of Commissions and Boards with fixed terms of offices per approved Position Allocation List (PAL) as primarily confidential in nature.  This includes the position of Private Secretary.

However, it is noted that there are also Private Secretary positions found in the Offices of officials not mentioned in Section 9, Chapter 2, Book V of Executive Order No. 292 but, whose duties likewise required utmost confidentiality.

For consistency and uniformity, it is hereby declared, pursuant to Resolution No. 91-676, that all Private Secretary positions irrespective of their locations are primarily confidential in nature.  The term of office of the appointees to said positions shall be coterminous with the official they serve.

Incumbents of positions of Private Secretary prior to this declaration whose appointments are permanent shall retain their permanent status until the positions are vacated.

Heads of agencies who may want to retain the position of Private Secretary in the career service should request the Department of Budget and Management for a change of their position titles to Secretary.

Please be guided accordingly.

Upon denial of their motion for reconsideration[4] by the CSC, petitioners brought this special civil action under Rule 65 of the Revised Rules of Court.

Before us, petitioners argue that Memorandum Circular No. 22, s. of 1991, unduly amended and expanded the scope of the non-career service under Section 6, Article IV of the Civil Service Decree,[5] P.D. 807, which appears almost identical to Section 9, Chapter 2, Book V of the 1987 Administrative Code.   They contend that respondent abused its power to promulgate rules and regulations by issuing the challenged circular, because the grant of rule-making power to respondent did not authorize it to amend the law by adding to the statutory enumeration.  Petitioners conclude that since said memorandum circular was issued in excess of the powers granted to respondent, it is null and void and consequently, the assailed CSC resolution has no leg to stand on.

After carefully considering petitioners’ contentions as well as the manifestation of the Office of the Solicitor General, however, we find no merit in the present petition.

First of all, it must be stressed that in this special civil action for certiorari, the Court is limited to the determination of whether or not respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Memorandum Circular No. 22, s. of 1991.   In this regard, it should also be emphasized that the burden of proving such grave abuse of discretion lies with petitioners. [6] By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; mere abuse of discretion is not enough -- it must be grave.[7]

The special writ of certiorari is not a remedy for errors of judgment, which are correctible by appeal. [8] For as long as a court, agency or tribunal acts within its jurisdiction, any alleged errors committed in the exercise thereof will amount to nothing more than errors of judgment, which may be corrected by timely appeal but not by a special civil action of certiorari.[9]

In the present case, there is no clear and persuasive showing that respondent grossly abused its discretion or exceeded its powers when it issued the assailed circular.  On the contrary, respondent was expressly empowered to declare positions in the Civil Service as may properly be classified as primarily confidential under Section 12, Chapter 3, Book V of the Administrative Code of 1987.[10] To our mind, this signifies that the enumeration found in Section 6, Article IV of the Civil Service Decree, which defines the non-career service, is not an exclusive list.   Respondent could supplement the enumeration, as it did when it issued Memorandum Circular No. 22, s. of 1991, by specifying positions in the civil service, which are considered primarily confidential and therefore their occupants are co-terminous with the official they serve.

In our view, the assailed memorandum circular can not be deemed as an unauthorized amendment of the law.   On the contrary, it was issued pursuant to a power expressly vested by law upon respondent.  As such, it must be respected by this Court as a valid issuance of a constitutionally independent body.   Moreover, absent any showing by petitioners that respondent acted on their case in an arbitrary or whimsical manner, it could not be successfully contended that the respondent acted with grave abuse of discretion.  The cited circular amply provides valid reason and justification for the Commission’s resolution, which affirmed on appeal the ruling of the CSC Regional Office that earlier upheld the action taken by its field office.   This three-tiered process in the CSC ensured that petitioners’ plea had undergone a thorough consideration and found devoid of substantial merit.  Given these circumstances, we see no sufficient ground to disturb respondent’s resolution.

WHEREFORE, the instant petition is DISMISSED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 167472             January 31, 2007

CIVIL SERVICE COMMISSION, Petitioner, vs.ENGR. ALI P. DARANGINA, Respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated October 7, 20041 and March 18, 20052 in CA-G.R. SP No. 71353.

The undisputed facts are:

Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment as director III, Plans and Policy Services, in the same office. On October 11, 2000, the Civil Service Commission (CSC), petitioner, approved this temporary appointment effective for one (1) year from the date of its issuance unless sooner terminated.

On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the temporary appointment of respondent on the ground that he is not a career executive service eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC disapproved his appointment, stating that respondent could only be replaced by an eligible.

On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18, 2001 sustaining the termination of his temporary appointment but ordering the payment of his salaries from the time he was appointed on September 25, 2000 until his separation on October 31, 2000.

Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No. 02-439 granting the same with modification in the sense that respondent should be paid his backwages from the time his employment was terminated on October 11, 2000 until September 24, 2001, the expiration of his one year temporary appointment.

On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement as director III and payment of backwages up to the time he shall be reinstated.

On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondent’s motion for partial reconsideration being a second motion for reconsideration which is prohibited.

Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure to implead the OMA Executive Director and the incumbent of the disputed position.

Respondent filed a motion for reconsideration.

In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February 27, 2004, thus:

ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the assailed CSC resolutions are hereby MODIFIED in that the petitioner is reinstated to his post to finish his 12-month term with backwages from the date of his removal until reinstatement.

SO ORDERED.

The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution dated March 28, 2005.

Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying the appointment status of public officers and employees in the career service, reads:

SEC. 27. Employment Status. – Appointment in the career service shall be permanent or temporary.

(1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.

(2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility:Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the position to which he is being appointed, including the appropriate eligibility.3 Differently stated, as a rule, no person may be appointed to a public office unless he or she possesses the requisite qualifications. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee.4 In Cuadra v. Cordova,5 this Court defined a temporary appointment as "one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power." Thus, the temporary appointee accepts the position with the condition that he shall surrender the office when called upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same Code, the term of a temporary appointment shall be 12 months, unless sooner terminated by the appointing authority. Such pre-termination of a temporary appointment may be with or without cause as the appointee serves merely at the pleasure of the appointing power.6

Under the Revised Qualifications Standards prescribed by the CSC, career executive service eligibility is a necessary qualification for the position of director III in Plans and Policy Services, OMA. It is not disputed that on September 25, 2000, when respondent was extended an appointment, he was not eligible to the position, not being a holder of such eligibility. Hence, his appointment was properly designated as "temporary." Then on October 31, 2000, newly-appointed OMA Executive Director Tomawis recalled respondent’s temporary appointment and replaced him by appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A game of musical chairs then followed. Sani was subsequently replaced by Tapa Umal, who in turn, was succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees were also disqualified for lack of the required eligibility.

The Court of Appeals ruled that such replacements are not valid as the persons who replaced respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to serve the remaining term of his 12-month term with salaries.

This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited.7

Moreover, in Achacoso8 cited earlier, this Court held that when a temporary appointee is required to relinquish his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no longer any remaining term to be served. Consequently, he can no longer be reinstated.

As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary during the entire twelve-month period in spite of the fact that he served only from September 25, 2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the Court of Appeals. Considering that respondent’s employment was validly terminated on October 31, 2000, he is ordered to refund the salaries he received from that date up to September 24, 2001.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

EN BANC[G.R. No. 158737. August 31, 2004]

CIVIL SERVICE COMMISSION, petitioner, vs. SATURNINO DE LA CRUZ, respondent.

D E C I S I O N

CORONA, J.:

Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court, seeking to review and set aside the May 14, 2003 decision[1] and June 17, 2003 resolution[2] of the Court of Appeals in CA-G.R. SP No. 54088, entitled Saturnino de la Cruz vs. Civil Service Commission. In that decision, the appellate court set aside CSC Resolution Nos. 98-2970 and 99-1451, consequently approving Saturnino de la Cruz’ appointment as Chief of the Aviation Safety Regulation Office.

The pertinent facts,[3] as narrated by the Office of the Solicitor General, follow.

Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC, presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division.

Respondent was promotionally appointed to the said position on November 28, 1994, duly attested by the Civil Service Commission (CSC).  But prior thereto, he was a Check Pilot II in the Air Transportation Office (ATO).

In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the Department of Transportation and Communication (DOTC) her protest against the promotional appointment of respondent as Chief Aviation Safety Regulation Officer, claiming among others that respondent did not meet the four-year supervisory requirement for said position.

On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the protest without merit.

Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to the CSC-NCR.

Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested ATO Executive Director Manuel Gilo to comment on the appeal and to submit to the CSC-NCR the documents pertinent thereto.

Since the CSC-NCR received no action on said request for comment, the CSC-NCR again wrote Director Gilo regarding the matter on May 5, 1997.  But to no avail.

On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its request for comment.

On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of Calamba and recalling the approval of respondent’s appointment as Chief Aviation Safety Regulation Officer.  Said the CSC-NCR:

“After an initial evaluation of the protest, we find that the only issue to be resolved is whether or not the protestee meets the minimum experience requirements as of the date of the protestee’s appointment to the contested position.  The contested position requires four years of work experience in position/s involving management per Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools per ATO Qualification Standards xxx.

xxx         xxx       xxx

Taking into account his previous positions, Mr. dela Cruz could not have exercised managerial or supervisory functions for the required number of years. x x x. Moreover, vis-à-vis the experience requirements of the approved ATO Qualification Standards, Mr. dela Cruz’ work experience prior to his appointment to the contested position did not concur therewith.

We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the requirements of the contested position as of the date of his appointment thereto.

xxx    xxx       xxx.”

Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the suspension of the order recalling respondent’s appointment, citing several reasons in support thereof.

Subsequently, a Manifestation with Motion to Admit Addendum dated December 22, 1997 was filed by Director Gilo with the CSC-NCR.  Director Gilo argued that Calamba had no legal personality to file a protest because she is not a qualified next-in-rank and that the protest was filed out of time.  He likewise asserted that respondent had fully met the qualifications required of the position.

On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings on the matter.  He also denied ATO Director Gilo’s request, for lack of merit.

Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilo’s request and affirmed the approval of respondent’s appointment as Chief Aviation Safety Regulation Officer.  He said:

“xxx        xxx      xxx.

We reviewed again the documents including the Office Orders designating protestant dela Cruz to supervisory position which were obviously issued during the latter part of 1993.  A liberal consideration thereof would come up with a little over one year of supervisory and managerial experience.  Certainly, he was short of the required number of years of work experience for the contested position as of the date of the issue of his appointment. Nevertheless, considering that Mr. dela Cruz has already in his favor at least four years of continuous supervisory/managerial experience from his designation as Acting Chief of the Aviation Safety Regulation Division, supervened by his permanent appointment thereto as Chief thereof in November 28, 1994, up to present, he has substantially satisfied the four years experience required for appointment to the contested position.

xxx    xxx       xxx.”

In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling of the CSC-NCR.

When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that the January 5, 1998 ruling is unofficial and inexistent.

The CSC treated Calamba’s request as an appeal. On November 13, 1998, the CSC rendered its Resolution No. 98-2970, the decretal portion of which reads:

“WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The appointment of Saturnino De la Cruz as Chief Aviation Regulation Officer is disapproved. De la Cruz is hereby reverted to his former position.

xxx    xxx       xxx.”

Acting on the request for reconsideration filed by respondent, the CSC rendered its Resolution No. 99-1451 on July 6, 1999, the dispositive portion of which reads:

“WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby denied.  Accordingly, CSC Resolution No. 98-2970 dated November 13, 1998 stands.”

On August 11, 1999, respondent filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 54088, seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.

In a decision[4] dated March 14, 2003, the Court of Appeals granted the petition by setting aside CSC Resolution Nos. 98-2970 and 99-1451 and approving respondent’s appointment as Chief of the Aviation Safety Regulation Office.

Petitioner’s motion for reconsideration was subsequently denied in a resolution issued on June 17, 2003.

Hence, the instant petition for review.

Petitioner contends that the appellate court erred in approving respondent’s appointment as Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and supervisory qualification for the position. It further contends that respondent’s completion of the required experience during the pendency of the present case cannot be counted in his favor because compliance with the prescribed mandatory requirements should be as of the date of issuance of the appointment and not the date of approval by the CSC or the resolution of the protest against the appointment.

The petition lacks merit.

Contrary to petitioner’s contention, respondent has sufficiently complied with the required experience standards.

First, upon the issuance of respondent’s appointment on November 28, 1994, the qualification standards of the DOTC for the position of Chief Aviation Safety Regulation Officer were as follows:

EDUCATION: Bachelor’s Degree related to AviationEXPERIENCE: 4 years of experience in planning, organizing, directing, coordinating, and

supervising the enforcement of air safety laws, rules, and regulations pertaining to licensing, rating and checking of all airmen and mechanics and the regulation of the activities of flying schools.

License required: Airline Transport Rating / Flight Operations Officer / Aircraft Maintenance Engineer (A&P) License / Flight Engineer License

 

TRAINING: In-service training in management; specialized course in aircraft maintenance / air carrier operations/ flight dispatching/ aircraft accident investigation/ equipment qualification course / flight training (local & abroad)

ELIGIBILITY: Relevant RA 1080 Career Service Prof. 1st Grade

Relevant Eligibility for Second Level Position[5]

 

As noted by the CSC-NCR,[6] the contested position required four years of work experience in managerial position(s) per the Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and

checking of all airmen and mechanics and regulation of the activities of flying schools per the above-stated ATO-DOTC Qualification Standards.

Petitioner’s insistence that respondent failed to meet the four-year managerial and supervisory experience requirement is misplaced.  It is a well-settled rule in statutory construction that the use of the term “and/or” means that the word “and” and the word “or” are to be used interchangeably.[7] The word “or” is a disjunctive term signifying dissociation and independence of one thing from another.[8] Thus, the use of the disjunctive term “or” in this controversy connotes that either the standard in the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position under question may qualify.

Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial standards in the first clause above were to be strictly followed. At the time of his permanent appointment on November 28, 1994 as Chief Aviation Safety Regulation Officer, respondent had a little over one year of managerial experience from his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993.  However, the work already rendered by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause. Planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools were part of the work performed by respondent for more than 13 years prior to his appointment.

Before respondent was appointed to the contested position, he had held several other positions in the ATO, namely:

March 6, 1981 to July 15, 1981

July 16, 1981 to February 5, 1983

Supply Checker

Junior Aeronautical Engineer

February 6, 1983 to February 29, 1984 Air Carrier Safety InspectorMarch 1, 1984 to February 28, 1987

March 1, 1987 to November 27, 1994

November 28, 1994 to date

Check Pilot I

Check Pilot II

Chief Aviation Safety Regulation Officer[9]

These positions, spanning more than 13 years, in four of the five sections of the Aviation Safety Division of the ATO definitely met the minimum supervisory experience required of respondent for the position.

In Rapisora vs. Civil Service Commission,[10] this Court held that the rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agency’s discretionary power to appoint, as long as the appointee possesses other qualifications required by law.  The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering the respondent’s total work experience as sufficient to meet the supervisory standards under the second clause, thereby finding respondent qualified for appointment to the contested position.

Second, respondent’s promotional appointment was issued in accordance with petitioner’s selection process. Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board.

DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:

1.  Capt. dela Cruz has been with the Air Transportation Office for more than 13 years already and during such period, he faithfully and efficiently (served in) four of the five sections of the Aviation Safety Division of which the position under consideration is the head, thereby gaining more varied experience and working knowledge of the most important and sensitive functions of the Division over other applicants;

2.  The recommendee always performs his assigned tasks promptly with dedication, integrity, high sense of responsibility and professionalism which he had demonstrated when he established and developed the Airport Crash Rescue Organization (ACRO) procedure to various national airports of the country, and when he organized the Air Transportation Office (ATO) Operations Center which is now on a 24-hour operation and serving as the nerve center of this Office;

3.  He is a dedicated public servant and is always willing to respond to call of duty even beyond office hours like when he is flying the ATO’s aircraft for navigation aide check during holidays and weekends, aside from conducting checkride to airmen prior to issuance of the pilot license;

4.  Capt. dela Cruz is an outstanding team worker as well as a leader and promotes enthusiasm among co-workers. He handles all areas of job with minimal supervision and accomplishes objectives efficiently. He accepts stress situations and performs extremely well.[11]

Because of respondent’s excellent credentials, DOTC Assistant Secretary for Administrative and Legal Affairs Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly recommended his promotional appointment to the contested position.

Third, respondent’s multifarious experiences and trainings[12] in air transportation were taken into account when he was chosen for the subject position. Respondent not only showed a continuing interest to improve his expertise in the field of air transportation, he also acquired an Airline Transport Pilot’s License in 1998.[13] As a privileged holder of such license, respondent exercised administrative supervision and control over pilots, cabin and crew members to ensure compliance with air safety laws, rules and regulations.

In addition, respondent’s dedication to the service was demonstrated by his conceptualization and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both airport personnel and passengers. Respondent also organized the Air Transportation Office Operations Center which now provides air service assistance on a 24-hour basis.

Because of respondent’s commendable performance, he was designated Chief of the Air Transportation Office Operations Center in 1993 per Office Order No. 178-93,[14] in addition to his duties as Check Pilot II. He was also designated Acting Chief, Aviation Safety Division, of the ATO per Office Order No. 211-93.[15] 

In Teologo vs. Civil Service Commission,[16] the Supreme Court ruled:

“Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants.”

As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo, “a proven excellent performance of a person is better than just experience by occupying a position but lacks dedication to duty, strong leadership and technical know-how.”[17]

It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part of the proper authority.  In Salles vs. Francisco, et al.,[18] we had occasion to rule that, in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings and seminars attended, agency examinations and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority.

In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the department. Sufficient if not plenary discretion should be granted to those entrusted with the responsibility of administering the offices concerned. They are in a position to determine who can best fulfill the functions of the office vacated. [19] Not only is the appointing authority the officer primarily responsible for the administration of the office, he is also in the best position to determine who among the prospective appointees can efficiently discharge the functions of the position.[20]

Respondent was the uncontested choice of the appointing authority. Then DOTC Secretary Jesus B. Garcia dismissed the protest against respondent’s appointment. ATO Executive Director Gilo also noted respondent’s full compliance with the qualifications for the position. CSC-NCR Director Acebedo, who previously recalled respondent’s appointment, later affirmed it after a re-evaluation of the case and declared his previous ruling unofficial and inexistent.

Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority. Between the Commission and the appointing authority, we sustain the latter.[21] “Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain job, who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied.”[22]

We, however, agree with petitioner that the reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it. We need not rule on petitioner’s assertion that respondent’s subsequent compliance with the experience standards during the pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of his appointment.

But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the contested position, we are still inclined to uphold the appellate court’s approval of respondent’s appointment. Petitioner itself has, on several occasions, allowed the appointment of personnel who were initially lacking in experience but subsequently obtained the same.

In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:

“A careful evaluation of the qualifications of Josue reveals that he meets the education, training and eligibility requirements of the position.  Considering that Josue has already in his favor three (3) years and eight (8) months experience as Senior Inspector up to the present, he has substantially satisfied the four (4) years experience required for the appointment as Chief Inspector.”

Following petitioner’s line of reasoning, respondent is deemed to have satisfactorily complied with the experience requirement for the contested position when he was designated Chief of the ATO Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions from 1993 to the present, respondent may be considered to have acquired the necessary experience for the position.

WHEREFORE, the instant petition is hereby DENIED.  The decision of the Court of Appeals setting aside CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED.  The appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ.,concur.

Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.

EN BANC[G.R. No. 132860.  April 3, 2001]

UNIVERSITY OF THE PHILIPPINES and  ALFREDO DE TORRES, petitioners, vs. CIVIL SERVICE COMMISSION,respondent.

D E C I S I O N

PANGANIBAN, J.:

As part of its academic freedom, the University of the Philippines has the prerogative to determine who may teach its students.  The Civil Service Commission has no authority to force it to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the October 31, 1997 Decision[1] of the Court of Appeals (CA)[2] in CA-GR SP No. 40128.  The CA upheld Resolution Nos. 95-3045[3] and 96-1041[4] issued by the Civil Service Commission (CSC) on May 5, 1995 and February 15, 1996, respectively.  In these Resolutions, the CSC held that Petitioner “Alfredo De Torres is considered to have been dropped from the service as of September 1, 1989.  Hence, his re-employment requires the issuance of an appointment subject to the requirements of the Civil Service Law and Rules.”

De Torres’ Motion for Reconsideration of the CA Decision was denied in the February 25, 1998 Resolution of the Court of Appeals.[5]

The Facts

The undisputed factual antecedents are summarized by the Court of Appeals thus:

“Dr. Alfredo B. De Torres is an Associate Professor of the University of the Philippines in Los Baños (UPLB) who went on a vacation leave of absence without pay from September 1, 1986 to August 30, 1989.  During this period, he served as the Philippine Government’s official representative to the Centre on Integrated Rural Development for Asia and [the] Pacific (CIRDAP).

“When the term of his leave of absence was about to expire, CIRDAP requested the UPLB for an extension of said leave of absence for another year, but was denied by Dr. Eulogio Castillo, the then Director of the Agricultural Credit Corporation, Inc. (ACCI) of UPLB.  In the same letter, Dr. Castillo advised Dr. De Torres to report for duty at UPLB not later than September 15, 1989; while the then UPLB Chancellor Raul P. de Guzman apprised him on the rules of the Civil Service on leaves and warned of the possibility of being considered on Absence Without Official Leave (AWOL) if he failed to return and report for duty as directed.

“On August 27, 198[9], Dr. De Torres wrote UPLB that he had ‘no alternative but x x x to pursue the matter in continuing his commitment to CIRDAP.’ In response thereto, Chancellor de Guzman warned De Torres, in a Letter dated November 20, 1989, that in case of the latter’s failure to report ‘within 30 days from today,’ UPLB would be forced to drop him from the rolls of personnel.  Despite the warning, Dr. De Torres did not report to work.

“On January 3, 1994 or after almost five years of absence without leave, Dr. De Torres wrote the incumbent Chancellor Ruben L. Villareal that he was reporting back to duty at ACCI-UPLB effective January 3, 1994  x x x.  However, Chancellor Villareal notified Dr. De Torres that ‘when an employee reports back for duty, he should have been from an approved leave …’  Likewise, Director Leodegacio M. Ilag, of ACCI-UPLB, in a Letter dated February 10, 1994, informed De Torres that in the absence of any approved application for leave of absence, he [was] considered to be on AWOL.  Thus, he was advised to re-apply with UPLB.

“On June 30, 1994, Dr. De Torres wrote Chancellor Villareal seeking reconsideration [of] the two aforementioned decisions x x x.  On July 4, 1994, Chancellor Villareal reversed his earlier stand and notified De Torres that since records at UPLB do not show that he ha[d] been officially dropped from the rolls he may report for duty effective January 3, 1994  x x x.

“Mesdames Juanita Baskinas and Winifreda Medina, members of Academic Personnel Committee, ACCI-UPLB, requested the Civil Service Commission regarding the employment status of Dr. De Torres x x x.

“On May 5, 1995, the Commission issued CSC Resolution No. 95-3045  x x x,  the dispositive portion of which reads:

‘WHEREFORE, the Commission hereby rules that Dr. De Torres is considered to have been dropped from the service as of September 1, 1989.  Hence, his re-employment requires the issuance of appointment subject to the requirements of Civil Service Law and Rules.’

“On June 9, 1995, Dr. De Torres and the University of the Philippines at Los Baños (UPLB) filed separate requests for reconsideration of aforesaid CSC Resolution No. 95-3045 dated May 5, 1995.  In its CSC Resolution No. 96-1041 x x x, the commission denied the motion for reconsideration, further stating that CSC Resolution No. 95-3045 [stood] and that since separation from the service [was] non-disciplinary in nature, the appointing authority may appoint Dr. De Torres to any vacant position pursuant to existing civil service law and rules.”[6]

The CSC rationalized its ruling in this manner:

“It could be gleaned from the foregoing circumstances that De Torres was already on AWOL beginning September 1, 1989 since his request for extension of leave of absence for one year was denied by then Chancellor De Guzman.  It is a fact that De Torres’ absence from work was not duly authorized by UPLB.  Despite the advice of Chancellor De Guzman to him that he should report

for duty on or before September 5, 1989, De Torres failed to do so.  Thus, his failure to assume duty as ordered caused his automatic separation from the service.”

The Ruling of the CA

From the unfavorable Resolutions of the CSC, petitioners sought recourse before the Court of Appeals.  But, finding “no grave abuse of discretion amounting to lack or  x x x  excess of jurisdiction on the part of the respondent commission in the issuance of the questioned Resolutions,” the appellate court dismissed the Petition for lack of merit.  Petitioners’ Motion for Reconsideration was denied in the CA Resolution dated February 25, 1998.  Thus, this Petition for Review.[7]

IssuesPetitioners submit the following questions of law for the Court’s consideration:[8]

“IWhether or not a new appointment is still necessary for Dr. de Torres to resume his post at the UNIVERSITY despite having

remained continuously with the Civil Service, not having been dropped from the rolls of the University, and after returning to fulfill his service contract as a government scholar.

“IIWhether or not the issuance by the COMMISSION of Resolution Nos. 95-3045 and 961041, was in excess of its authority.

“IIIWhether or not the COMMISSION violated the Subido-Romulo Agreement which is still in force and effect.

“IVWhether or not the express repeal of the old law had the effect of doing away with the policy of automatic dropping from the

government service in favor of notice before dropping.“V

Whether or not Section 33 of Rule XVI is ultra vires as it does not relate or is not in any way connected with any specific provision of R.A. No. 2260.

“VIWhether or not Resolution No. 95-3045 violated Dr. de Torres’ constitutional right to due process.”

In the main, the issue is the validity of Dr. Alfredo de Torres’ automatic separation from the civil service due to his prolonged absence without official leave.

The Court’s RulingThe Petition is meritorious.

Main Issue:Validity of Automatic Separation from the Civil Service

In brief, petitioners argue that (1) the issuance of a new appointment in favor of Petitioner De Torres is not needed, because he was not formally dropped from the rolls of the University of the Philippines; (2) the assailed CSC Resolutions were issued in excess of authority, because the CSC had violated the Subido-Romulo Agreement and disregarded the University’s academic freedom, which includes the right to determine who may teach and who may be dropped from the service; (3) Section 33, Rule XVI of the Revised Civil Service Rules -- based on which respondent justified Petitioner De Torres’  automatic separation from the service -- has been repealed and superseded by PD 807, as well as EO 292 (Administrative Code of 1987) which decrees prior notice before actual dropping; (4) even assuming that the said provision was not repealed, the issuance of the Rule was ultra vires because it was not related to or connected with to any specific provision of the mother law, RA 2260; and (5) the assailed CSC Resolutions violated petitioner’s right to due process, because he had not been given prior notice of his actual separation.

On the other hand, respondent, through the solicitor general, contends that (1) “[i]t is of no legal moment that petitioner De Torres’ name is still listed in the rolls of UPLB faculty members since his mandatory separation from the government service was ipso jure upon his failure to report for duty within the period prescribed by his superiors”; (2) the new Civil Service Rules did not repeal but complement Section 33, Rule XVI of the Revised Civil Service Rules, with the additional provision on notice of actual dropping; (3) Section 33 was a valid exercise by the CSC of its rule-making power to discipline erring employees of the civil service; and (4) sufficiently constituting due notice of his separation from the service were the denial of Petitioner De Torres’ request for an extension of his leave of absence, coupled with the advice for him to report for work and the UPLB Chancellor’s subsequent letter informing him that in case he failed to report within thirty (30) days, he would be dropped from the rolls of its personnel.

We now rule on these arguments.  The Civil Service Commission predicated its ruling on Section 33, Rule XVI of the Revised Civil Service Rules, which was in effect at the time.  The provision states:

“Under no circumstances shall leave without pay be granted for more than one year.  If an employee who is on leave without pay for any reason fails to return to duty at the expiration of one year from the effective date of such leave, he shall be considered automatically separated from the service; Provided, that he shall, within a reasonable time before the expiration of his one year leave of absence without pay, be notified in writing of the expiration thereof with a warning that if he fails to report for duty on said date, he will be dropped from the service.”

According to respondent, this provision speaks of automatic separation from the service, even without prior notice and hearing.  It extensively cites Quezon v. Borromeo,[9] which supposedly held that the absence of notice to or investigation of the erring employee “is not jurisdictional in cases involving Section 33, Rule XVI of the Revised Civil Service Rules.”

The case cited involved the chief nurse of the Iligan City Hospital who had initially been authorized to go on special study detail to take up or complete a degree in nursing for a period of not more than twelve (12) months.   Afterwards, she requested two extensions of her leave, which were both granted, albeit charged to her accumulated leave credits and, after exhaustion thereof, without pay.  Her extended leave totaled nineteen (19) months.  Subsequently, she sought a third extension of leave, which was,

however, not acted upon by the authorities.  Notwithstanding the lack of approval, she remained on leave and further requested a fourth extension. By indorsement of the regional director, this fourth request was disapproved, with the statement that her continuous leave of absence was in violation of Section 33, Rule XVI of the Civil Service Rules.   Subsequently, an appointment was issued to another person as chief nurse.

More than two years after the expiration of her last approved leave, the petitioner reported for duty, but she was informed that she had been dropped from the government service.  The Court held that she had automatically been dropped from the service after failing to return to work at the end of her approved leave.  With respect to the lack of written notice of the impending expiration of her leave, with a warning that she would be dropped from the service if she failed to report for duty upon such expiration, the Court adverted to an earlier case, Isberto v. Raquiza.[10] In that case, the Court held that the employee, who had been absent without official leave, ought to have known that he was deemed automatically separated from the service from the time his approved leave expired.  The High Court pointed out that he was not excused by his ignorance of the rule providing for automatic separation from the service upon failure to return to work after the lapse of the leave of absence without pay.

The Court also referred to Ramo v. Elefaño,[11] which had sustained the dropping of the petitioner from the service for her failure to return to duty after the expiration of her leave of absence.  The letter disapproving her request for extension of leave on the ground of Section 33, Rule XVI was communicated to her “for her information and compliance” only after her leave had already expired.

The core of the holdings in the above-cited cases was whether the absence of prior written notice by the appropriate government agency would prevent the dropping of the employee concerned from the service.  The Court held that under the rules then prevailing, such absence did not.

This issue, however, is not determinative of the present case.  There is no question that the UPLB Chancellor had advised petitioner on the Civil Service Rules regarding leaves.  The former warned the latter of the possibility of being considered on AWOL (absence without leave) and being dropped from the service, if he failed to return and report for duty upon the expiration of his authorized leave.  Consistent with the cases discussed above, this action constituted sufficient notice.

The pivotal issue herein, however, is whether petitioner was indeed dropped from the service by the University.  By respondent’s contention, Section 33 of Rule XVI automatically operates; thus, whether or not to give effect to the provision is not within the discretion of the government agency concerned.

We do not agree, insofar as institutions of higher learning are concerned.  In the three cases mentioned earlier, the concerned employees were actually dropped from the rolls by their respective agencies.  As a matter of fact, in Quezon, the petitioner-employee was replaced by a new appointee.  In Isberto, the petitioner-employee’s position had initially been declared vacant, then filled up by another.  Also, in Ramo the school’s board of trustees passed a resolution dropping the petitioner from the service for her failure to return to duty after the expiration of her leave of absence; it then passed another Resolution appointing her replacement.

In the case at bar, however, Petitioner De Torres was never actually dropped from the service by UP.  He remained in the University’s roll of academic personnel, even after he had been warned of the possibility of being dropped from the service if he failed to return to work within a stated period.  Indeed, as Vice Chancellor for Academic Affairs Emiliana N. Bernardo explained to the CSC in her October 12, 1994 letter:[12] “UPLB records show that no notice or order of dropping Dr. de Torres from the rolls was ever issued by the UPLB Chancellor.  On the contrary, UPLB records show that his salary was increased several times during his absence – on January 1, 1988, March 16, 1988, and July 1, 1989.  His appointment was also reclassified with promotion in rank from Training Specialist II to Assistant Professor IV effective March 16, 1988.  This promotion was approved by the UP Board of Regents during its 1015th meeting held on August 25, 1988.”

Verily, these acts are clearly inconsistent with separation or dropping from the service.   Private petitioner was not only retained in the roll of personnel; his salary was even increased three (3) times.   Moreover, he was promoted in rank with the explicit approval of the Board of Regents, the highest governing body of UP.[13]Since the commencement of the Complaint before the CSC, the University has consistently stood by his side.  When respondent ruled against him in its assailed Resolution No. 95-3045, the University promptly filed a Motion for Reconsideration favoring his cause.  Then, UP joined Dr. De Torres in his appeal before the Court of Appeals, as well as in the Petition now before us.  All these circumstances indubitably demonstrate that the University has chosen not to exercise its prerogative of dismissing petitioner from its employ.

UP’s actuations, in spite of Section 33, Rule XVI of the Revised Civil Service Rules, are consistent with the exercise of its academic freedom.  We have held time and again that “the University has the academic freedom to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”[14] Clearly, this freedom encompasses the autonomy to choose who should teach[15] and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel.  This Court declared in Ateneo de Manila University v. Capulong: “As corporate entities, educational institutions of higher learning are inherently endowed with the right to establish their policies, academic and otherwise, unhampered by external controls or pressure.”[16] Similarly, Vicente G. Sinco, a former UP president and delegate to the 1973 Constitutional Convention, stressed that the Constitution “definitely grants the right of academic freedom to the University as an institution as distinguished from the academic freedom of a university professor."[17]

We are not unaware that academic freedom has been traditionally associated with freedom of thought, speech, expression and the press.[18] But, as explained by Constitutional Commissioner Adolfo S. Azcuna during the deliberations on Section 5 (2), Article XIV[19] of the 1987 Constitution, "[S]ince academic freedom is a dynamic concept, we want to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to develop further the parameters of academic freedom." [20]

Thus, we hold that by opting to retain private petitioner and even promoting him despite his absence without leave, the University was exercising its freedom to choose who may teach or, more precisely, who may continue to teach in its faculty. Even in the light of the provision of the Revised Civil Service Law, the Respondent CSC had no authority to dictate to UP the outright dismissal of its personnel.  The former could not have done so without trampling upon the latter’s constitutionally enshrined academic freedom.  Moreover, in Chang v. Civil Service Commission,[21] the Court stressed that “[t]he CSC is not a co-manager, or surrogate administrator of government offices and agencies.  Its functions and authority are limited to approving or reviewing

appointments to determine their concordance with the requirements of the Civil Service Law.” In short, on its own, the CSC does not have the power to terminate employment or to drop workers from the rolls.

Needless to say, UP definitely recognizes and values petitioner’s academic expertise.   As the vice chancellor for academic affairs explained, “[d]ropping him from the rolls will utterly be a waste of government funds and will not serve the best interest of the country which is suffering from ‘brain-drain’.”[22] Even UP President Emil Q. Javier advised Complainants Baskiñas and Medina to “give Dr. de Torres the opportunity to honor his service obligation to the University,”[23]referring to petitioner’s required return service in view of a fellowship abroad earlier granted him by the institution.

Consequently, there is no need for the issuance of a new appointment in favor of Dr. De Torres.  His service in UP is deemed uninterrupted during his tenure at CIRDAP.

WHEREFORE, the Petition is hereby GRANTED.  The assailed Decision of the Court of Appeals and the Respondent Civil Service Commission’s Resolution Nos. 95-3045 and 96-1041 are SET ASIDE.  No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.

FIRST DIVISION

[G.R. Nos. 142332-43.  January 31, 2005]

YOLANDA BRUGADA, ANGELINA CORPUZ, EVELYN ESCANO, SHIRLEY GARMA, DEDAICA JUSAY, PARSIMA LERIA, SONIA C. MAHINAY, ADELA SOLO, ELSIE SOMERA, VIRGINIA TALICURAN, JOSE S. VALLO, and TEOFILA VILLANUEVA, petitioners, vs. THE SECRETARY OF EDUCATION, CULTURE AND SPORTS,respondent.

D E C I S I O N

CARPIO, J.:

The Case

This petition for review[1] assails the 31 July 1996 Decision[2] and 29 February 2000 Resolution of the Court of Appeals in CA-G.R. SP Nos. 37794-99 and SP Nos. 37800-05.  The Court of Appeals dismissed the petition for certiorari filed by petitioners and affirmed the Resolutions issued by the Civil Service Commission.

The Facts

Petitioners Yolanda Brugada, Angelina Corpuz, Evelyn Escano, Shirley Garma, Dedaica Jusay, Parsima Leria, Sonia C. Mahinay, Adela Solo, Elsie Somera, Virginia Talicuran, Jose S. Vallo and Teofila Villanueva (“petitioners”) are public school teachers from various National Capital Region schools.

In the latter part of September 1990, petitioners incurred unauthorized absences because of the teachers’ strike.   Their mass action called for the payment of their 13th-month differentials and clothing allowances, as well as the recall of DECS Order No. 39, series of 1990 and passage of the debt-cap bill, among others.

Subsequently, then Department of Education, Culture and Sports (“DECS”) Secretary Isidro Cariño (“Secretary Cariño”) issued a memorandum to all striking teachers, as follows:

TO                        :           ALL PUBLIC SCHOOL                                         TEACHERS AND OTHER                                         DECS PERSONNEL

SUBJECT           :           RETURN TO WORK ORDER

Under civil service law and rules, strikes, unauthorized mass leaves and other forms of mass actions by civil servants which disrupt public services are strictly prohibited.

Those of you who are engaged in the above-mentioned prohibited acts are therefore ordered, in the interest of public service, to return to work within 24 hours from your walkout otherwise dismissal proceedings shall be instituted against you.[3]

Secretary Cariño likewise issued a memorandum to the DECS officials, as follows:

TO                :           REGIONAL DIRECTORS

                                  DIVISION SCHOOL SUPERINTENDENT                                  AND OTHER DECS OFFICIALS                                  CONCERNED

SUBJECT     :           TEACHERS AND EMPLOYEES MASSACTION

Please inform immediately all DECS teachers and employees who have started a mass protest action to the prejudice of the public service that they will be dismissed if they do not return to their jobs within twenty-four (24) hours from their walkout.

Regional Directors and division superintendent are hereby directed to accordingly initiate, in the interest of public service, dismissal proceedings against those who continue with their action and hire their replacements.[4]

Petitioners disregarded the directives of Secretary Cariño.  Consequently, Secretary Cariño filed administrative charges against petitioners for grave misconduct, gross neglect of duty, and gross violation of Civil Service laws and rules.   Secretary Cariño also charged petitioners with refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service and absence without leave.  Secretary Cariño gave petitioners five days to answer the charges, to secure the assistance of counsel, and to elect a formal investigation.  However, petitioners failed to answer despite notice.

Thereafter, Secretary Cariño created committees to investigate and hear the cases.   The investigating committees summoned the school principals concerned to confirm reports on petitioners’ absences.  After the investigation, the committees submitted their reports to Secretary Cariño.

Secretary Cariño rendered decisions finding petitioners guilty as charged and dismissed them from the service “effective immediately.” Petitioners appealed to the Merit Systems Protection Board, which dismissed the appeals.

Petitioners appealed the decisions of the Merit Systems Protection Board to the Civil Service Commission (“CSC”).   The CSC issued Resolutions reducing the penalty to six months suspension without pay and ordering the petitioners’ reinstatement without back wages.  The CSC denied petitioners’ motion for reconsideration.

Petitioners filed a petition for certiorari with this Court on 9 February 1995.  The Court referred the petition to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95.

The Court of Appeals rendered a Decision, the dispositive portion of which reads:

WHEREFORE, the instant petition for certiorari cannot be given due course as it is hereby DISMISSED for lack of merit.

SO ORDERED.[5]

Petitioners filed a motion for reconsideration which the Court of Appeals denied in its 29 February 2000 Resolution.

Hence, this petition.

The Ruling of the Court of Appeals

The Court of Appeals ruled that the CSC did not gravely abuse its discretion in finding petitioners guilty of the administrative charges and suspending them for six months without pay.

The Court of Appeals cited the following grounds for its decision:

FIRSTLY, although the constitutional right of the people to form association[s] embraces both public and private sectors, pursuant to Article XIII, Section 3, 1987 Constitution, the right to strike is not extended to government employees under the Civil Service Law (P.D. No. 807).  Under Republic Act 875, workers, including those from the government-owned and controlled-corporations, are allowed to organize but they are prohibited from striking. xxx

SECONDLY, during the deliberation of the 1987 Constitutional Commission, specifically on the Committee on Labor (Alliance of Government Workers, et al. vs. Hon. Minister of Labor etc., 124 SCRA 1), acting Commissioner of Civil Service Eli Rey Pangramuyen stated:

“It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard the right to strike given to unions in private industry as not applying to public employees and civil service employees. xxx

xxx”

THIRDLY, petitioners’ contention that respondent Commission on Civil Service gravely erred when it affirmed the decision of the then DECS Secretary, invoking violations of constitutional due process, is without merit.

xxx In the case at bench, it has been shown that petitioners admitted joining the mass action and despite threats of dismissal, they disobeyed the return to work order within 24 hours from their walk-out.  Petitioners were given an opportunity to present their side. 

They did not only refuse to answer the charges filed against them.  They also opted to shy away from the investigation conducted.  xxx

xxx

FINALLY, the facts of the case clearly demonstrate strong basis for the administrative charge[s] and justifies the subsequent penalty imposed upon herein petitioners.  Indeed, petitioners’ contention that they did not strike but merely joined the mass action exercising their constitutional right to assemble, is a question of semantics.  In the case of MPSTA vs. Hon. Perfecto Laguio, (G.R. No. 95445), and also in ACT vs. Hon. Cari[ñ]o, et al., G.R. No. 95590, the Supreme Court held that “mass actions and peaceful assemblies amounted to a strike in every sense of the term, constituting as they did, concerted and unauthorized stoppage of, or absence from work which it was said teacher’s sworn duty to perform.” xxx[6]

The Issue

Petitioners seek the reversal of the assailed decision on the ground that:

THE COURT OF APPEALS COMMITTED A MOST GRIEVOUS ERROR WHEN IT DID NOT EXPRESSLY RULE ON THE ISSUE OF THE RIGHT OF PETITIONERS TO BACKWAGES AND IN EFFECT AFFIRMED THE TERRIBLY WRONG RULING OF THE CIVIL SERVICE COMMISSION THAT PETITIONERS HAVE NO RIGHT TO BACKWAGES.[7]

The Court’s Ruling

The petition lacks merit.

Petitioners are no longer pleading for exoneration from the administrative charges filed against them. Instead, petitioners are merely asking for the payment of back wages computed from the time they could not teach pursuant to Secretary Cariño’s dismissal orders minus the six months suspension until their actual reinstatement.[8]

Petitioners have no right to back wages because they were neither exonerated nor unjustifiably suspended.  Petitioners admitted participating in the teachers’ strike which disrupted the education of public school students.   For this offense, the CSC reduced Secretary Cariño’s dismissal orders to six months suspension without pay.  The Court has already put to rest the issue of the award of back wages to public school teachers whom the CSC reinstated in the service after commuting Secretary Cariño’s dismissal orders to six months suspension without pay.[9] In Alipat v. Court of Appeals,[10] the Court denied the teachers’ claim for back wages stating thus:

This Court has also resolved the issue of whether back wages may be awarded to the teachers who were ordered reinstated to the service after the dismissal orders of Secretary Cariño were commuted by the Civil Service Commission to six (6) months’ suspension.  The issue was resolved in the negative in Bangalisan vs. Court of Appeals on the ground that the teachers were neither exonerated nor unjustifiably suspended.  The Bangalisan case also ruled that the immediate implementation of the dismissal orders, being clearly sanctioned by law, was not unjustified.  The Court held that as regards the payment of back salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, the payment of back wages may be decreed if “he is found innocent of the charges which caused the suspension and when the suspension is unjustified.”

Citing the Bangalisan ruling, this Court in Jacinto vs. Court of Appeals held that when the teachers have given cause for their suspension – i.e., the unjustified abandonment of classes to the prejudice of their students – they were not fully innocent of the charges against them although they were eventually found guilty only of conduct prejudicial to the best interest of the service and not grave misconduct or other offense warranting their dismissal from the service; “being found liable for a lesser offense is not equivalent to exoneration.”[11]

The facts in this case are substantially the same as those in Bangalisan v. Court of Appeals,[12] De la Cruz v. Court of Appeals,[13]Alipat v. Court of Appeals[14] and Secretary of Education, Culture and Sports v. Court of Appeals. [15] In these cases, the Court categorically declared that the payment of back wages during the period of suspension of a civil servant who is subsequently reinstated is proper if he is foundinnocent of the charges and the suspension is unjustified.  These two circumstances are absent in the present case.  When a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.[16]

WHEREFORE, we DENY the petition.  We AFFIRM the Decision dated 31 July 1996 and Resolution dated 29 February 2000 of the Court of Appeals in CA-G.R. SP Nos. 37794-99 and SP Nos. 37800-05.  Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

EN BANC

[G.R. No. 148208.  December 15, 2004]

CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, INC., petitioner, vs.BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents.

D E C I S I O N

PUNO, J.:

Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that its continued operation would violate the equal protection of the law?  We hold that with the passage of the subsequent laws amending the charter of seven (7) other governmental financial institutions (GFIs), the continued operation of the last  proviso of Section 15(c), Article II of Republic Act (R.A.) No. 7653, constitutes invidious discrimination on the 2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP).

I.The Case

First the facts.

On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect.   It abolished the old Central Bank of the Philippines, and created a new BSP.

On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary of the Office of the President, to restrain respondents from further implementing the last proviso in Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.

Article II, Section 15(c) of R.A. No. 7653 provides:

Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall:

xxx    xxx       xxx

(c) establish a human resource management system which shall govern the selection, hiring, appointment, transfer, promotion, or dismissal of all personnel.  Such system shall aim to establish professionalism and excellence at all levels of the Bangko Sentral in accordance with sound principles of management.

A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be instituted as an integral component of the Bangko Sentral’s human resource development program: Provided, That the Monetary Board shall make its own system conform as closely as possible with the principles provided for under Republic Act No. 6758 [Salary Standardization Act].  Provided, however, That compensation and wage structure of employees whose positions fall under salary grade 19 and below shall be in accordance with the rates prescribed under Republic Act No. 6758. [emphasis supplied]

The thrust of petitioner’s challenge is that the above proviso makes an unconstitutional cut between two classes of employees in the BSP, viz:  (1) the BSP officers or those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2) the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the SSL (non-exempt class).  It is contended that this classification is “a classic case of class legislation,” allegedly not based on substantial distinctions which make real differences, but solely on the SG of the BSP personnel’s position.  Petitioner also claims that it is not germane to the purposes of Section 15(c), Article II of R.A. No. 7653, the most important of which is to establish professionalism and excellence at all levels in the BSP.[1] Petitioner offers the following sub-set of arguments:

a.  the legislative history of R.A. No. 7653 shows that the questioned proviso does not appear in the original and amended versions of House Bill No. 7037, nor in the original version of Senate Bill No. 1235; [2]

b.  subjecting the compensation of the BSP rank-and-file employees to the rate prescribed by the SSL actually defeats the purpose of the law[3]of establishing professionalism and excellence at all levels in the BSP; [4] (emphasis supplied)

c.  the assailed proviso was the product of amendments introduced during the deliberation of Senate Bill No. 1235, without showing its relevance to the objectives of the law, and even admitted by one senator as discriminatory against low-salaried employees of the BSP;[5]

d.  GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; thus within the class of rank-and-file personnel of government financial institutions (GFIs), the BSP rank-and-file are also discriminated upon;[6] and

e.  the assailed proviso has caused the demoralization among the BSP rank-and-file and resulted in the gross disparity between their compensation and that of the BSP officers’.[7]

In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and violates the equal protection clause of the Constitution.[8] Petitioner also stresses: (a) that R.A. No. 7653 has a separability clause, which will allow the declaration of the unconstitutionality of the proviso in question without affecting the other provisions; and (b) the urgency and propriety of the petition, as some 2,994 BSP rank-and-file employees have been prejudiced since 1994 when the proviso was implemented.  Petitioner concludes that: (1) since the inequitableproviso has no force and effect of law, respondents’ implementation of such amounts to lack of jurisdiction; and (2) it has no appeal nor any other plain, speedy and adequate remedy in the ordinary course except through this petition for prohibition, which this Court should take cognizance of, considering the transcendental importance of the legal issue involved.[9]

Respondent BSP, in its comment,[10] contends that the provision does not violate the equal protection clause and can stand the constitutional test, provided it is construed in harmony with other provisions of the same law, such as “fiscal and administrative autonomy of BSP,” and the mandate of the Monetary Board to “establish professionalism and excellence at all levels in accordance with sound principles of management.”

The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the provision. Quite simplistically, he argues that the classification is based on actual and real differentiation, even as it adheres to the enunciated policy of R.A. No. 7653 to establish professionalism and excellence within the BSP subject to prevailing laws and policies of the national government.[11]

II.Issue

Thus, the sole - albeit significant - issue to be resolved in this case is whether the last paragraph of Section 15(c), Article II of R.A. No. 7653, runs afoul of the constitutional mandate that "No person shall be. . . denied the equal protection of the laws."[12]

III.Ruling

A.        UNDER THE PRESENT STANDARDS OF EQUALPROTECTION, SECTION 15(c), ARTICLE II OF R.A. NO. 7653IS VALID.

Jurisprudential standards for equal protection challenges indubitably show that the classification created by the questioned proviso, on its face and in its operation, bears no constitutional infirmities.

It is settled in constitutional law that the "equal protection" clause does not prevent the Legislature from establishing classes of individuals or objects upon which different rules shall operate - so long as the classification is not unreasonable. As held in Victoriano v. Elizalde Rope Workers’ Union,[13] and reiterated in a long line of cases:[14]

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear. (citations omitted)

Congress is allowed a wide leeway in providing for a valid classification. [15] The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class. [16] If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. [17] The classification must also be germane to the purpose of the law and must apply to all those belonging to the same class.[18]

In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and above) from the SSL was intended to address the BSP’s lack of competitiveness in terms of attracting competent officers and executives. It was not intended to discriminate against the rank-and-file. If the end-result did in fact lead to a disparity of treatment between the officers and the rank-and-file in terms of salaries and benefits, the discrimination or distinction has a rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense. [19]

That the provision was a product of amendments introduced during the deliberation of the Senate Bill does not detract from its validity.  As early as 1947 and reiterated in subsequent cases,[20] this Court has subscribed to the conclusiveness of an enrolled bill to

refuse invalidating a provision of law, on the ground that the bill from which it originated contained no such provision and was merely inserted by the bicameral conference committee of both Houses.

Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be resolved in favor of the constitutionality of a statute.[21] An act of the legislature, approved by the executive, is presumed to be within constitutional limitations.[22] To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.[23]

B.        THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEESOF GFIs FROM THE SSL - RENDERS THE CONTINUEDAPPLICATION OF THE CHALLENGED PROVISIONA VIOLATION OF THE EQUAL PROTECTION CLAUSE.

While R.A. No. 7653 started as a valid measure well within the legislature’s power, we hold that the  enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity out of the challenged proviso.

1.         The concept of relative constitutionality.

The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its provisions with applicable provisions of the Constitution, since the statute may be constitutionally valid as applied to one set of facts and invalid in its application to another.[24]

A statute valid at one time may become void at another time because of altered circumstances.[25] Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions.[26]

Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon,[27] where the Court of Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which placed the plaintiff's property in a residential district, although it was located in the center of a business area. Later amendments to the ordinance then prohibited the use of the property except for parking and storage of automobiles, and service station within a parking area. The Court found the ordinance to constitute an invasion of property rights which was contrary to constitutional due process.  It ruled:

While the common council has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare, such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted.  By the same token, an ordinance valid when adopted will nevertheless be stricken down as invalid when, at a later time, its operation under changed conditions proves confiscatory such, for instance, as when the greater part of its value is destroyed, for which the courts will afford relief in an appropriate case.[28] (citations omitted, emphasis supplied)

In the Philippine setting, this Court declared the continued enforcement of a valid law as unconstitutional as a consequence of significant changes in circumstances. Rutter v. Esteban[29] upheld the constitutionality of the moratorium law - its enactment and operation being a valid exercise by the State of its police power [30] - but also ruled that the continued enforcement of the otherwise valid law would be unreasonable and oppressive.  It noted the subsequent changes in the country’s business, industry and agriculture.  Thus, the law was set aside because its continued operation would be grossly discriminatory and lead to the oppression of the creditors.  The landmark ruling states:[31]

The question now to be determined is, is the period of eight (8) years which Republic Act No. 342 grants to debtors of a monetary obligation contracted before the last global war and who is a war sufferer with a claim duly approved by the Philippine War Damage Commission reasonable under the present circumstances?

It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations who suffered from the ravages of the last war and who filed a claim for their losses with the Philippine War Damage Commission. It is therein provided that said obligation shall not be due and demandable for a period of eight (8) years from and after settlement of the claim filed by the debtor with said Commission.  The purpose of the law is to afford to prewar debtors an opportunity to rehabilitate themselves by giving them a reasonable time within which to pay their prewar debts so as to prevent them from being victimized by their creditors.   While it is admitted in said law that since liberation conditions have gradually returned to normal, this is not so with regard to those who have suffered the ravages of war and so it was therein declared as a policy that as to them the debt moratorium should be continued in force (Section 1).

But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could effect a liquidation of their investment dating as far back as 1941.   his period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors.  Their hope to effect collection becomes extremely remote, more so if the credits are unsecured.  And the injustice is more patent when, under the law, the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States.

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In the face of the foregoing observations, and consistent with what we believe to be as the only course dictated by justice, fairness and righteousness, we feel that the only way open to us under the present circumstances is to declare that the continued operation and enforcement of Republic Act No. 342 at the present time is unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect.  (emphasis supplied, citations omitted)

2.         Applicability of the equal protection clause.

In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey[32] is illuminating.  The Supreme Court of Florida ruled against the continued application of statutes authorizing the recovery of double damages plus attorney's fees against railroad companies, for animals killed on unfenced railroad right of way without proof of negligence.   Competitive motor carriers, though creating greater hazards, were not subjected to similar liability because they were  not yet in existence when the statutes were enacted.  The Court ruled that the statutes became invalid as denying “equal protection of the law,” in view of  changed conditions since their enactment.

In another U.S. case, Louisville & N.R. Co. v. Faulkner,[33] the Court of Appeals of Kentucky declared unconstitutional a provision of a statute which imposed a duty upon a railroad company of proving that it was free from negligence in the killing or injury of cattle by its engine or cars.  This, notwithstanding that the constitutionality of the statute, enacted in 1893, had been previously sustained.  Ruled the Court:

The constitutionality of such legislation was sustained because it applied to all similar corporations and had for its object the safety of persons on a train and the protection of property…. Of course, there were no automobiles in those days. The subsequent inauguration and development of transportation by motor vehicles on the public highways by common carriers of freight and passengers created even greater risks to the safety of occupants of the vehicles and of danger of injury and death of domestic animals.  Yet, under the law the operators of that mode of competitive transportation are not subject to the same extraordinary legal responsibility for killing such animals on the public roads as are railroad companies for killing them on their private rights of way.

The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, “A statute valid when enacted may become invalid by change in the conditions to which it is applied.  The police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably.” A number of prior opinions of that court are cited in support of the statement.  The State of Florida for many years had a statute, F.S.A. § 356.01 et seq. imposing extraordinary and special duties upon railroad companies, among which was that a railroad company was liable for double damages and an attorney's fee for killing livestock by a train without the owner having to prove any act of negligence on the part of the carrier in the operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that the changed conditions brought about by motor vehicle transportation rendered the statute unconstitutional since if a common carrier by motor vehicle had killed the same animal, the owner would have been required to prove negligence in the operation of its equipment.  Said the court, “This certainly is not equal protection of the law.”[34] (emphasis supplied)

Echoes of these rulings resonate in our case law, viz:

[C]ourts are not confined to the language of the statute under challenge in determining whether that statute has any discriminatory effect.  A statute nondiscriminatory on its face may be grossly discriminatory in its operation.   Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[35] (emphasis supplied, citations omitted)

[W]e see no difference between a law which denies equal protection and a law which permits of such denial.  A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition….. In other words, statutes may be adjudged unconstitutional because of their effect in operation…. If a law has the effect of denying the equal protection of the law it is unconstitutional. ….[36] (emphasis supplied, citations omitted

3.         Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 + 8763+ 9302 = consequential unconstitutionality of challenged proviso.

According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL.[37] Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon.

Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz:

1.  R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);

2.  R.A. No. 8282 (1997) for Social Security System (SSS);

3.  R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC);

4.  R.A. No. 8291 (1997) for Government Service Insurance System (GSIS);

5.  R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP);

6.  R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);[38] and

7.  R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).

It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or impliedly, as illustrated below:

1.  LBP (R.A. No. 7907)

Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows:

Section 90. Personnel. -

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All positions in the Bank shall be governed by a compensation, position classification system and qualification standards approved by the Bank’s Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities.   The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability.  The Bank shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards.  It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758. (emphasis supplied)

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2.  SSS (R.A. No. 8282)

Section 1. [Amending R.A. No. 1161, Section 3(c)]:

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(c)The Commission, upon the recommendation of the SSS President, shall appoint an actuary and such other personnel as may [be] deemed necessary; fix their reasonable compensation, allowances and other benefits; prescribe their duties and establish such methods and procedures as may be necessary to insure the efficient, honest and economical administration of the provisions and purposes of this Act: Provided, however, That the personnel of the SSS below the rank of Vice President shall be appointed by the SSS President: Provided, further, That the personnel appointed by the SSS President, except those below the rank of assistant manager, shall be subject to the confirmation by the Commission; Provided further, That the personnel of the SSS shall be selected only from civil service eligibles and be subject to civil service rules and regulations:  Provided, finally, That the SSS shall be exempt from the provisions of Republic Act No. 6758 and Republic Act No. 7430. (emphasis supplied)

3.  SBGFC (R.A. No. 8289)

Section 8. [Amending R.A. No. 6977, Section 11]:

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The Small Business Guarantee and Finance Corporation shall:

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(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation Circular No. 10, series of 1989  issued by the Department of Budget and Management, the Board of Directors of SBGFC shall have the authority to extend to the employees and personnel thereof the allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other government financial institutions.  (emphases supplied)

4.  GSIS (R.A. No. 8291)

Section 1. [Amending Section 43(d)].

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Sec. 43. Powers and Functions of the Board of Trustees. - The Board of Trustees shall have the following powers and functions:

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(d) upon the recommendation of the President and General Manager, to approve the GSIS’ organizational and administrative structures and staffing pattern, and to establish, fix, review, revise and adjust the appropriate compensation package for the officers and employees of the GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as may be necessary or proper for the effective management, operation and administration of the GSIS, which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law and Republic Act No. 7430, otherwise known as the Attrition Law. (emphasis supplied)

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5.  DBP (R.A. No. 8523)

Section 6. [Amending E.O. No. 81, Section 13]:

Section 13. Other Officers and Employees. - The Board of Directors shall provide for an organization and staff of officers and employees of the Bank and upon recommendation of the President of the Bank, fix their remunerations and other emoluments. All positions in the Bank shall be governed by the compensation, position classification system and qualification standards approved by the Board of Directors based on a comprehensive job analysis of actual duties and responsibilities.   The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board of Directors once every two (2) years, without prejudice to yearly merit or increases based on the Bank’s productivity and profitability.  The Bank shall, therefore, be exempt from existing laws, rules, and regulations on compensation, position classification and qualification standards.  The Bank shall however, endeavor to make its system conform as closely as possible with the principles under Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended). (emphasis supplied)

6.  HGC (R.A. No. 8763)

Section 9. Powers, Functions and Duties of the Board of Directors. - The Board shall have the following powers, functions and duties:

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(e) To create offices or positions necessary for the efficient management, operation and administration of the Corporation: Provided, That all positions in the Home Guaranty Corporation (HGC) shall be governed by a compensation and position classification system and qualifications standards approved by the Corporation’s Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities: Provided, further, That the compensation plan shall be comparable with the prevailing compensation plans in the private sector and which shall be exempt from Republic Act No. 6758, otherwise known as the Salary Standardization Law, and from other laws, rules and regulations on salaries and compensations;  and to establish a Provident Fund and determine the Corporation’s and the employee’s contributions to the Fund; (emphasis supplied)

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7.  PDIC (R.A. No. 9302)

Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read:

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3.

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A compensation structure, based on job evaluation studies and wage surveys and subject to the Board’s approval, shall be instituted as an integral component of the Corporation’s human resource development program: Provided, That all positions in the Corporation shall be governed by a compensation, position classification system and qualification standards approved by the Board based on a comprehensive job analysis and audit of actual duties and responsibilities.  The compensation plan shall be comparable with the prevailing compensation plans of other government financial institutions and shall be subject to review by the Board no more than once every two (2) years without prejudice to yearly merit reviews or increases based on productivity and profitability.  The Corporation shall therefore be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards.  It shall however endeavor to make its system conform as closely as possible with the principles under Republic Act No. 6758, as amended. (emphases supplied)

Thus, eleven years after the amendment of the BSP charter, the rank-and-file of seven other GFIs were granted the exemption that was specifically denied to the rank-and-file of the BSP.   And as if to add insult to petitioner’s injury, even the Securities and Exchange Commission (SEC) was granted the same blanket exemption from the SSL in 2000![39]

The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its classification between the rank-and-file and the officers of the BSP, found reasonable because there were substantial distinctions that made real differences between the two classes.

The above-mentioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny.  This time, the scrutiny relates to the constitutionality of the classification - albeit made indirectly as a consequence of the passage of eight other laws - between the rank-and-file of the BSP and the seven other GFIs.  The classification must not only be reasonable, but must also apply equally to all members of the class.  The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions between persons who are without differences.[40]

Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees of the other GFIs?   Is Congress’ power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because the inequity

manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate acts of Congress?  Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification made directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the grouping, or the lack thereof, among several similar enactments made over a period of time?

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other GFIs) rests “on a policy determination by the legislature.” All legislative enactments necessarily rest on a policy determination- even those that have been declared to contravene the Constitution.  Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal protection challenges would ever prosper.   There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution.

In fine, the “policy determination” argument may support the inequality of treatment between the rank-and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank-and-file and other GFIs’ who are similarly situated.  It fails to appreciate that what is at issue in the second level of scrutiny is not the declared policy of each law per se, but the oppressive results of Congress’ inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFIs.  At bottom, the second challenge to the constitutionality of Section 15(c), Article II of Republic Act No. 7653 is premised precisely on the irrational discriminatory policy adopted by Congress in its treatment of persons similarly situated. In the field of equal protection, the guarantee that "no person shall be … denied the equal protection of the laws” includes the prohibition against enacting laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the equal protection of the law, or permits such denial, it is unconstitutional.[41]

It is against this standard that the disparate treatment of the BSP rank-and-file from the other GFIs cannot stand judicial scrutiny.  For as regards the exemption from the coverage of the SSL, there exist no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rank-and-file of the seven GFIs.  On the contrary, our legal history shows that GFIs have long been recognized as comprising one distinct class, separate from other governmental entities.

Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to provide equal pay for substantially equal work, and (2) to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. P.D. No. 985 was passed to address disparities in pay among similar or comparable positions which had given rise to dissension among government employees.  But even then, GFIs and government-owned and/or controlled corporations (GOCCs) were already identified as a distinct class among government employees.  Thus, Section 2 also provided, “[t]hat notwithstanding a standardized salary system established for all employees, additional financial incentives may be established by government corporation and financial institutions for their employees to be supported fully from their corporate funds and for such technical positions as may be approved by the President in critical government agencies.”[42]

The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b) provides that one of the principles governing the Compensation and Position Classification System of the Government is that: “[b]asic compensation for all personnel in the government and government-owned or controlled corporations and financial institutions shall generally be comparable with those in the private sector doing comparable work, and must be in accordance with prevailing laws on minimum wages.”

Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position Classification System of the SSL,[43] but rates of pay under the SSL were determined on the basis of, among others, prevailing rates in the private sector for comparable work. Notably, the Compensation and Position Classification System was to be governed by the following principles: (a) just and equitable wages, with the ratio of compensation between pay distinctions maintained at equitable levels; [44] and (b) basic compensation generally comparable with the private sector, in accordance with prevailing laws on minimum wages. [45] Also, the Department of Budget and Management was directed to use, as guide for preparing the Index of Occupational Services,  the Benchmark Position Schedule, and the following factors:[46]

(1)            the education and experience required to perform the duties and responsibilities of the positions;

(2)                        the nature and complexity of the work to be performed;

(3)                        the kind of supervision received;

(4)                        mental and/or physical strain required in the completion of the work;

(5)                        nature and extent of internal and external relationships;

(6)                        kind of supervision exercised;

(7)                        decision-making responsibility;

(8)                        responsibility for accuracy of records and reports;

(9)                        accountability for funds, properties and equipment; and

(10)          hardship, hazard and personal risk involved in the job.

The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to 20.

Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects pertaining to compensation and position classification, in consonance with Section 5, Article IX-B of the 1997 Constitution.[47]

Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary Board from the SSL by giving it express authority to determine and institute its own compensation and wage structure.  However, employees whose positions fall under SG 19 and below were specifically limited to the rates prescribed under the SSL.

Subsequent amendments to the charters of other GFIs followed.  Significantly, each government financial institution (GFI) was not only expressly authorized to determine and institute its own compensation and wage structure, but also explicitly exempted - without distinction as to salary grade or position - all employees of the GFI from the SSL.

It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from the SSL, based on the perceived need “to fulfill the mandate of the institution concerned considering, among others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI is in direct competition with their [sic] counterparts in the private sector, not only in terms of the provisions of goods or services, but also in terms of hiring and retaining competent personnel; and (3) the GOCC or GFI  are or were [sic] experiencing difficulties filling up plantilla positions with competent personnel and/or retaining these personnel.  The need for the scope of exemption necessarily varies with the particular circumstances of each institution, and the corresponding variance in the benefits received by the employees is merely incidental.”

The fragility of this argument is manifest. First, the BSP is the central monetary authority,[48] and the banker of the government and all its political subdivisions.[49] It has the sole power and authority to issue currency;[50] provide policy directions in the areas of money, banking, and credit; and supervise banks and regulate finance companies and non-bank financial institutions performing quasi-banking functions,including the exempted GFIs.[51] Hence, the argument that the rank-and-file employees of the seven GFIs were exempted because of the importance of their institution’s mandate cannot stand any more than an empty sack can stand.

Second, it is certainly misleading to say that “the need for the scope of exemption necessarily varies with the particular circumstances of each institution.” Nowhere in the deliberations is there a cogent basis for the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-and-file of the other GFIs and the SEC.  As point in fact, the BSP and the seven GFIs are similarly situated in so far as Congress deemed it necessary for these institutions to be exempted from the SSL.  True, the SSL-exemption of the BSP and the seven GFIs was granted in the amended charters of each GFI, enacted separately and over a period of time. But it bears emphasis that, while each GFI has a mandate different and distinct from that of another, the deliberations show that the raison d’être of the SSL-exemption was inextricably linkedto and for the most part based on factors common to the eight GFIs, i.e., (1) the pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective personnel to carry out the GFI’s mandate; and (3) the recognition that the compensation package of these GFIs is not competitive, and fall substantially below industry standards.  Considering further that (a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs did not distinguish between the officers and the rank-and-file; it is patent that  the classification made between the BSP rank-and-file and those of the other seven GFIs was inadvertent, and NOT intended, i.e., it was not based on any substantial distinction vis-à-vis the particular circumstances of each GFI. Moreover, the exemption granted to two GFIs makes express reference to allowance and fringe benefits similar to those extended to and currently enjoyed by the employees and personnel of other GFIs,[52] underscoring that GFIs are a particular class within the realm of government entities.

It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP - made manifest and glaring with each and every consequential grant of blanket exemption from the SSL to the other GFIs - that cannot be rationalized or justified. Even more so, when the SEC - which is not a GFI - was given leave to have a compensation plan that “shall be comparable with the prevailing compensation plan in the [BSP] and other [GFIs],”[53] then granted a blanket exemption from the SSL, and its rank-and-file endowed a more preferred treatment than the rank-and-file of the BSP.

The violation to the equal protection clause becomes even more pronounced when we are faced with this undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid of any substantial or material basis.  It bears no moment, therefore, that the unlawful discrimination was not a direct result arising from one law. “Nemo potest facere per alium quod non potest facere per directum.” No one is allowed to do indirectly what he is prohibited to do directly.

It has also been proffered that “similarities alone are not sufficient to support the conclusion that rank-and-file employees of the BSP may be lumped together with similar employees of the other GOCCs for purposes of compensation, position classification and qualification standards.  The fact that certain persons have some attributes in common does not automatically make them members of the same class with respect to a legislative classification.” Cited is the ruling in Johnson v. Robinson:[54] “this finding of similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain the statute’s different treatment of the two groups.”

The reference to Johnson is inapropos.  In Johnson, the US Court sustained the validity of the classification as there were quantitative and qualitative distinctions, expressly recognized by Congress, which formed a rational basis for the classification limiting educational benefits to military service veterans as a means of helping them readjust to civilian life.   The Court listed the peculiar characteristics as follows:

First, the disruption caused by military service is quantitatively greater than that caused by alternative civilian service. A conscientious objectorperforming alternative service is obligated to work for two years. Service in the Armed Forces, on the other hand, involves a six-year commitment…

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Second, the disruptions suffered by military veterans and alternative service performers are qualitatively different. Military veterans suffer a far greater loss of personal freedom during their service careers. Uprooted from civilian life, the military veteran becomes part of the military establishment, subject to its discipline and potentially hazardous duty. Congress was acutely aware of the peculiar disabilities caused by military service, in consequence of which military servicemen have a special need for readjustment benefits…[55] (citations omitted)

In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one).  The distinction made by the law is not only superficial,[56] but also arbitrary. It is not based on substantial distinctions that make real differences between the BSP rank-and-file and the seven other GFIs.

Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales would put it - whether “being an employee of a GOCC or GFI is reasonable and sufficient basis for exemption” from R.A. No. 6758.   It is Congress itself that distinguished the GFIs from other government agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907, 8282, 8289, 8291, 8523, 8763, and 9302.  These laws may have created a “preferred sub-class within government employees,” but the present challenge is not directed at the wisdom of these laws. Rather, it is a legal conundrum involving the exercise of legislative power, the validity of which must be measured not only by looking at the specific exercise in and by itself (R.A. No. 7653), but also as to the legal effects brought about by seven separate exercises - albeit indirectly and without intent.

Thus, even if petitioner had not alleged “a comparable change in the factual milieu as regards the compensation, position classification and qualification standards of the employees of the BSP (whether of the executive level or of the rank-and-file) since the enactment of the new Central Bank Act” is of no moment. In GSIS v. Montesclaros,[57] this Court resolved the issue of constitutionality notwithstanding that claimant had manifested that she was no longer interested in pursuing the case, and even when the constitutionality of the said provision was not squarely raised as an issue, because the issue involved not only the claimant but also others similarly situated and whose claims GSIS would also deny based on the challenged proviso.  The Court held that social justice and public interest demanded the resolution of the constitutionality of theproviso. And so it is with the challenged proviso in the case at bar.

It bears stressing that the exemption from the SSL is a “privilege” fully within the legislative prerogative to give or deny.  However, its subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees breached the latter’s right to equal protection. In other words, while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review.[58] So when the distinction made is superficial, and not based on substantial distinctions that make real differences between those included and excluded, it becomes a matter of arbitrariness that this Court has the duty and the power to correct.[59] As held in the United Kingdom case of Hooper v. Secretary of State for Work and Pensions,[60] once the State has chosen to confer benefits, “discrimination” contrary to law may occur where favorable treatment already afforded to one group is refused to another, even though the State is under no obligation to provide that favorable treatment. [61]

The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL when such was withheld from the BSP.   Alikes are being treated as unalikes without any rational basis.

Again, it must be emphasized that the equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.  Favoritism and undue preference cannot be allowed.  For the principle is that equal protection and security shall be given to every person under circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion; whatever restrictions cast on some in the group is equally binding on the rest.[62]

In light of the lack of real and substantial distinctions that would justify the unequal treatment between the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the seven subsequent charters has rendered the continued application of the challenged provisoanathema to the equal protection of the law, and the same should be declared as an outlaw.

IV.

Equal Protection UnderInternational Lens

In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the “rational basis” test, coupled with a deferential attitude to legislative classifications[63] and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. [64]

A.        Equal Protectionin the United States

In contrast, jurisprudence in the U.S. has gone beyond the static “rational basis” test.   Professor Gunther highlights the development in equal protection jurisprudential analysis, to wit: [65]

Traditionally, equal protection supported only minimal judicial intervention in most contexts.  Ordinarily, the command of equal protection was only that government must not impose differences in treatment “except upon some reasonable differentiation fairly related to the object of regulation.” The old variety of equal protection scrutiny focused solely on the means used by the legislature: it insisted merely that the classification in the statute reasonably relates to the legislative purpose.  Unlike substantive due process, equal protection scrutiny was not typically concerned with identifying “fundamental values” and restraining legislative ends.  And usually the rational classification requirement was readily satisfied: the courts did not demand a tight fit between classification and purpose; perfect congruence between means and ends was not required.

xxx    xxx       xxx

[From marginal intervention to major cutting edge: The Warren Court’s “new equal protection” and the two-tier approach.]

From its traditional modest role, equal protection burgeoned into a major intervention tool during the Warren era, especially in the 1960s.  The Warren Court did not abandon the deferential ingredients of the old equal protection: in most areas of economic and social legislation, the demands imposed by equal protection remained as minimal as ever…But the Court launched an equal protection revolution by finding large new areas for strict rather than deferential scrutiny.  A sharply differentiated two-tier approach evolved by the late 1960s: in addition to the deferential “old” equal protection, a “new” equal protection, connoting  strict scrutiny, arose…. The intensive review associated with the new equal protection imposed two demands -  a demand not only as to

means but also one as to ends.  Legislation qualifying for strict scrutiny required a far closer fit between classification and statutory purpose than the rough and ready flexibility traditionally tolerated by the old equal protection:  means had to be shown “necessary” to achieve statutory ends, not merely “reasonably related” ones.  Moreover, equal protection became a source of ends scrutiny as well: legislation in the areas of the new equal protection had to be justified by “compelling” state interests, not merely the wide spectrum of “legitimate” state ends.

The Warren Court identified the areas appropriate for strict scrutiny by searching for two characteristics:  the presence of a “suspect” classification; or an impact on “fundamental” rights or interests.  In the category of “suspect classifications,” the Warren Court’s major contribution was to intensify the strict scrutiny in the traditionally interventionist area of racial classifications.   But other cases also suggested that there might be more other suspect categories as well: illegitimacy and wealth for example.  But it was the ‘fundamental interests” ingredient of the new equal protection that proved particularly dynamic, open-ended, and amorphous….. [Other fundamental interests included voting, criminal appeals, and the right of interstate travel ….]

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The Burger Court and Equal Protection.

The Burger Court was reluctant to expand the scope of the new equal protection, although its best established ingredient retains vitality. There was also mounting discontent with the rigid two-tier formulations of the Warren Court’s equal protection doctrine.  It was prepared to use the clause as an interventionist tool without resorting to the strict language of the new equal protection….  [Among the fundamental interests identified during this time were voting and access to the ballot, while “suspect” classifications included sex, alienage and illegitimacy.]

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Even while the two-tier scheme has often been adhered to in form, there has also been an increasingly noticeable resistance to the sharp difference between deferential “old” and interventionist “new” equal protection.  A number of justices sought formulations that would blur the sharp distinctions of the two-tiered approach or that would narrow the gap between strict scrutiny and deferential review.  The most elaborate attack came from Justice Marshall, whose frequently stated position was developed most elaborately in his dissent in the Rodriguez case: [66]

The Court apparently seeks to establish [that] equal protection cases fall into one of two neat categories which dictate the appropriate standard of review - strict scrutiny or mere rationality. But this (sic) Court’s [decisions] defy such easy categorization.  A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the equal protection clause.  This spectrum clearly comprehends variations in the degree of care with which Court will scrutinize particular classification, depending, I believe, on the constitutional and societal importance of the interests adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn.

Justice Marshall’s “sliding scale” approach describes many of the modern decisions, although it is a formulation that the majority refused to embrace.  But the Burger Court’s results indicate at least two significant changes in equal protection law:  First, invocation of the “old” equal protection formula no longer signals, as it did with the Warren Court, an extreme deference to legislative classifications and a virtually automatic validation of challenged statutes.  Instead, several cases, even while voicing the minimal “rationality” “hands-off” standards of the old equal protection, proceed to find the statute unconstitutional.  Second, in some areas the modern Court has put forth standards for equal protection review that, while clearly more intensive than the deference of the “old” equal protection, are less demanding than the strictness of the “new” equal protection. Sex discrimination is the best established example of an “intermediate” level of review.  Thus, in one case, the Court said that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” That standard is “intermediate” with respect to both ends and means: where ends must be “compelling” to survive strict scrutiny and merely “legitimate” under the “old” mode, “important” objectives are required here; and where means must be “necessary” under the “new” equal protection, and merely “rationally related” under the “old” equal protection, they must be “substantially related” to survive the “intermediate” level of review. (emphasis supplied, citations omitted)

B.        Equal Protectionin Europe

The United Kingdom and other members of the European Community have also gone forward in discriminatory legislation and jurisprudence.  Within the United Kingdom domestic law, the most extensive list of protected grounds can be found in Article 14 of the European Convention on Human Rights (ECHR).  It prohibits discrimination on grounds such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” This list is illustrative and not exhaustive.  Discrimination on the basis of race, sex and religion is regarded as grounds that require strict scrutiny.  A further indication that certain forms of discrimination are regarded as particularly suspect under the Covenant can be gleaned from Article 4, which, while allowing states to derogate from certain Covenant articles in times of national emergency, prohibits derogation by measures that discriminate solely on the grounds of “race, colour, language, religion or social origin.”[67]

Moreover, the European Court of Human Rights has developed a test of justification which varies with the ground of discrimination.  In theBelgian Linguistics case[68] the European Court set the standard of justification at a low level: discrimination would contravene the Convention only if it had no legitimate aim, or there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised. [69] But over the years, the European Court has developed a hierarchy of grounds covered by Article 14 of the ECHR, a much higher level of justification being required in respect of those regarded as “suspect” (sex, race, nationality, illegitimacy, or sexual orientation) than of others.  Thus, in Abdulaziz, [70] the European Court declared that:

. . . [t]he advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe.   This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.

And in Gaygusuz v. Austria,[71] the European Court held that “very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”[72] The European Court will then permit States a very much narrower margin of appreciation in relation to discrimination on grounds of sex, race, etc., in the application of the Convention rights than it will in relation to distinctions drawn by states between, for example, large and small land-owners. [73]

C.        Equality underInternational Law

The principle of equality has long been recognized under international law. Article 1 of the Universal Declaration of Human Rightsproclaims that all human beings are born free and equal in dignity and rights.  Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes basic principles in the protection of human rights. [74]

Most, if not all, international human rights instruments include some prohibition on discrimination and/or provisions about equality.[75]The general international provisions pertinent to discrimination and/or equality are the International Covenant on Civil and Political Rights (ICCPR);[76] the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all Forms of Racial Discrimination (CERD); [77] the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC).

In the broader international context, equality is also enshrined in regional instruments such as the American Convention on Human Rights;[78] the African Charter on Human and People's Rights;[79] the European Convention on Human Rights;[80] the European Social Charter of 1961 and revised Social Charter of 1996; and the European Union Charter of Rights (of particular importance to European states).  Even the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although it has yet to be ratified by the Member States of the League.[81]

The equality provisions in these instruments do not merely function as traditional "first generation" rights, commonly viewed as concerned only with constraining rather than requiring State action.  Article 26 of the ICCPR requires “guarantee[s]” of “equal and effective protection against discrimination” while Articles 1 and 14 of the American and European Conventions oblige States Parties “to ensure ... the full and free exercise of [the rights guaranteed] ... without any discrimination” and to “secure without discrimination” the enjoyment of the rights guaranteed. [82] These provisions impose a measure of positive obligation on States Parties to take steps to eradicate discrimination.

In the employment field, basic detailed minimum standards ensuring equality and prevention of discrimination, are laid down in the ICESCR[83] and in a very large number of Conventions administered by the International Labour Organisation, a United Nations body. [84]Additionally, many of the other international and regional human rights instruments have specific provisions relating to employment.[85]

The United Nations Human Rights Committee has also gone beyond the earlier tendency to view the prohibition against discrimination (Article 26) as confined to the ICCPR rights.[86] In Broeks[87] and Zwaan-de Vries,[88] the issue before the Committee was whether discriminatory provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26.   The Dutch government submitted that discrimination in social security benefit provision was not within the scope of Article 26, as the right was contained in the ICESCR and not the ICCPR.  They accepted that Article 26 could go beyond the rights contained in the Covenant to other civil and political rights, such as discrimination in the field of taxation, but contended that Article 26 did not extend to the social, economic, and cultural rights contained in ICESCR. The Committee rejected this argument.  In its view, Article 26 applied to rights beyond the Covenant including the rights in other international treaties such as the right to social security found in ICESCR:

Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any state to enact legislation to provide for social security.  However, when such legislation is adopted in the exercise of a State's sovereign power, then  such legislation must comply with Article 26 of the Covenant.[89]

Breaches of the right to equal protection occur directly or indirectly. A classification may be struck down if it has the  purpose or effect of violating the right to equal protection. International law recognizes that discrimination may occur indirectly, as the Human Rights Committee[90] took into account the definitions of discrimination adopted by CERD and CEDAW in declaring that:

. . . “discrimination” as used in the [ICCPR] should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. [91] (emphasis supplied)

Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and in international law.  There should be no hesitation in using the equal protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our society.  Indeed, the social justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, compel this approach.[92]

Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v. Quisumbing: [93]

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils.  The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith."

International law, which springs from general principles of law, likewise proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable.   The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation - all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.

In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible.

The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace - the factory, the office or the field - but include as well the manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment.

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Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensure, in particular:

a.            Remuneration which provides all workers, as a minimum, with:

i.      Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

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The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. (citations omitted)

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution.[94] The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution.  When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties,  and require a stricter and more exacting adherence to constitutional limitations.  Rational basis should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence.  Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction.  At best, they are persuasive and have been used to support many of our decisions. [95] We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments.  We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice.[96] Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws.  And it need not be stressed that our public interest is distinct and different from others.[97]

In the 2003 case of Francisco v. House of Representatives, this Court has stated that: “[A]merican jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs.” [98] Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. [99]

Further, the quest for a better and more “equal” world calls for the use of equal protection as a tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution.  The Preamble proclaims “equality” as an ideal precisely in protest against crushing inequities in Philippine society.  The command to promote social justice in Article II, Section 10, in “all phases of national development,” further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality.… [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.[100]

Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor.[101] Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. [102] And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality.[103] Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.[104]

V.A Final Word

Finally, concerns have been raised as to the propriety of a ruling voiding the challenged provision.  It has been proffered that the remedy of petitioner is not with this Court, but with Congress, which alone has the power to erase any inequity perpetrated by R.A. No. 7653.  Indeed, a bill proposing the exemption of the BSP rank-and-file from the SSL has supposedly been filed.

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power.  Judicial scrutiny would be based on the “rational basis” test, and the legislative discretion would be given deferential treatment. [105]

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict.   A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines.  This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities.  Oppressive acts will be struck down regardless of the character or nature of the actor. [106]

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or non-political, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations - particularly those prescribed or imposed by the Constitution - would be set at naught.  What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence,  We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation - made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution - to settle it.  This explains why, in Miller v. Johnson, it was held that courts have a "duty, rather than a power", to determine whether another branch of the government has "kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if the Constitution provides how it may be amended - as it is in our 1935 Constitution - "then, unless the manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment invalid." In fact, this very Court - speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted the 1935 Constitution - declared, as early as July 15, 1936, that "(i)n times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments" of the government.[107] (citations omitted; emphasis supplied)

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status .  It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades.  Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL.  The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay.   Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial  need for the adjustment  This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all.” [108] Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.

To be sure, the BSP rank-and-file employees merit greater concern from this Court.  They represent the more impotent rank-and-file government employees who, unlike employees in the private sector, have no specific right to organize as a collective bargaining unit and negotiate for better terms and conditions of employment, nor the power to hold a strike to protest unfair labor practices.  Not only are they impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653 effectively isolated them from the other GFI rank-and-file in compensation.  These BSP rank-and-file employees represent the politically powerless and they should not be compelled to seek a political solution to their unequal and iniquitous treatment.  Indeed, they have waited for many years for the legislature to act.  They cannot be asked to wait some more for discrimination cannot be given any waiting time.  Unless the equal protection clause of the Constitution is a mere platitude, it is the Court’s duty to save them from reasonless discrimination.

IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ., concur.

Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting.Corona, and Callejo, Sr., JJ., on leave.

[G.R. No. 139792.  November 22, 2000]ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known

as METROPOLITAN MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents.

D E C I S I O N

DAVIDE, JR., C.J.:

In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals [1] in CA-G.R. SP No. 48301, which held that petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in the Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City for which he has already been given retirement gratuity and pension.

The undisputed facts are as follows:

On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office.   After the military-backed EDSA revolt, petitioner was reappointed to the same position.

On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910,[2] as amended, and received his retirement gratuity under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension.

On 2 December 1993, petitioner re-entered the government service.  He was appointed Director III of the Traffic Operation Center of the MMA.  His appointment was approved by the Civil Service Commission (CSC).

On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Development Authority (MMDA).  Section 11 thereof reads:

Section 11.  Transitory Provisions.  – To prevent disruption in the delivery of basic urban services pending the full implementation of the MMDA’s organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exercise their duties and functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and of being transferred to another office or position.

. . .

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strictly enforced.  The national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of one and one-fourth (1¼) month’s salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws, said employees may opt to receive the benefits thereunder.

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implementing R.A. No. 7924.  Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the payment of separation benefits to the officials and employees of the former MMA who would be separated as a result of the implementation of R.A. No. 7924.

On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him that in view of his “voluntary option to be separated from the service” his services would automatically cease effective at the close of office hours on 15 September 1996, and that he would be entitled to “separation benefits equivalent to one and one-fourth (1¼) monthly salary for every year of service as provided under Section 11 of the MMDA Law.”

In view of some doubt or confusion as to the extent of his separation benefits, petitioner submitted a Position Paper wherein he asserted that since the retirement gratuity he received under R.A. No. 910, as amended, is not an additional or double compensation, all the years of his government service, including those years in the Judiciary, should be credited in the computation of his separation benefits under R.A. No. 7924.  The Assistant Manager for Finance of the MMDA referred the Position Paper to the Regional Office of the CSC-NCR.

On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an opinion that the payment of petitioner’s separation pay must be in accordance with Civil Service Resolution No. 92-063, pertinent portions of which read:

[T]he payment of separation/[retirement] benefits cannot be subject to the prohibition against the [sic] double compensation in cases when officers and employees who were previously granted said benefits are rehired or reemployed in another government Agency or Office.  Thus, there is no need for separated employees to refund the separation/retirement benefits they received when subsequently reemployed in another government agency or office.

…  This being so, while an employee who was paid separation/retirement benefits is not required to refund the same once reemployed in the government service, as aforestated, for reasons of equity however, it would be proper and logical that said separation/retirement benefits should nevertheless be deducted from the retirement/[separation] pay to be received by the employee concerned.  Moreover, in this instance, the employee concerned has the option either to refund his separation/retirement benefits and claim his gross retirement/separation pay without any deduction corresponding to his separation pay received, or not [to] refund his separation/retirement pay but suffer a deduction of his retirement/separation gratuity for the total amount representing his previous separation/retirement pay received.

His motion for reconsideration having been denied, petitioner elevated the opinion of Director Acebedo to the CSC.

On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the opinion of Director Acebedo and dismissing petitioner’s appeal.  Citing Chaves v. Mathay,[3] it held that petitioner cannot be paid retirement benefits twice – one under R.A. No. 910, as amended, and another under R.A. No. 7924 – for the same services he rendered as MeTC Judge.   He can only exercise one of two options in the computation of his separation pay under R.A. 7924.  These options are (1) to refund the gratuity he received under R.A. No. 910, as amended, after he retired from the MeTC and get the full separation pay for his entire years in the government, that is 9 years and 2  months with the MeTC plus two (2) years and eight (8) months for his services as Director III in the defunct MMA, at the rate of one and one-fourth salary for every year of service pursuant to MMDA Memorandum dated 30 August 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge but an equivalent amount shall be deducted from the separation benefits due from the former MMA for his entire government service.

On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner’s motion for reconsideration.  Accordingly, petitioner filed with the Court of Appeals a petition to set aside these Resolutions.

On 19 August 1999, the Court of Appeals promulgated its decision, now challenged in this case.  It held that the CSC was “correct in dismissing petitioner’s appeal from the opinion of Director Acebedo.”  It ratiocinated as follows:

There is no specific rule of law which applies to petitioner’s case.  Nevertheless, the Court finds it equitable to deny his claim for payment of separation pay at the rate of one and one-fourth (1¼) month’s salary for every year of his service in government, that is, inclusive of the number of years he served as Judge of the Metropolitan Trial Court of Manila [sic].

Petitioner already received and is continually receiving gratuity for his years of service as a Metropolitan Trial Court Judge.  Equity dictates that he should no longer be allowed to receive further gratuity for said years of service in the guise of separation pay.

Suffice it to state that upon his retirement from his office as a Judge, petitioner has already closed a chapter of his government service.  The State has already shown its gratitude for his services when he was paid retirement benefits under Republic Act No. 901 [sic].  For that is what retirement benefits are for.  Rewards [are] given to an employee who has given up the best years of his life to the service of his country (Gov’t. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188).

Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Metro Manila Authority (MMA), another chapter of petitioner’s government service which has come to a close by the reorganization of the MMA into the Metropolitan Manila Development Authority.

The Court, in limiting the computation of petitioner’s separation pay to the number of years of his service at the MMA, merely is implementing the ruling in “Chavez, Sr. vs. Mathay” (37 SCRA 776), which ruling, if not actually in point, is nevertheless applicable owing to its “common-sense consideration.”  Said ruling reads:

“The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his years of service under his first retirement in computing his gratuity under his second retirement, it is but just that the retirement gratuity received by him under his first retirement should also be charged to his account, manifestly govern the case at bar.  It is but in accordance with the rule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or pension such as petitioner’s, ‘would run roughshod over the well-settled rule that in the absence of an express legal exception, pension and gratuity laws should be so construed as to preclude any person from receiving double pension.’ (p. 780, underscoring supplied)

The case at bench is not, strictly speaking, about ‘double pension.’  It is, however, about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of the MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same years of service.

We affirm the assailed judgment.  We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computing or determining petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and that his separation pay should be solely confined to his services in the MMA.

In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of “one and one-fourth (1¼) months of salary for every year of service” cannot by any stretch of logic or imagination be interpreted to refer to the total length of service of an MMA employee in the government, i.e., to include such service in the government outside the MMA.  Since it allows the grant of separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MMA.  The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner.  The rule is settled that Congress may abolish public offices.  Such a power is a consequent prerogative of its power to create public offices.[4] However, the power to abolish is subject to the condition that it be exercised in good faith.[5] The separation partook of the nature of a disturbance of compensation; hence, the separation pay must relate only to the employment thus affected.

Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service.  If he were convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previous years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:

Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder.

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years thereafter he has been receiving a monthly pension.

The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he accepts another government position to which another compensation is attached.[6]

Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not constitute double compensation.  He could continue receiving the same even if after his retirement he had been receiving salary from the defunct MMA as Director III thereof.  This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary was his compensation for his services as Director III of the MMA.

However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the fact that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance double compensation for exactly the same services, i.e., his services as MeTC Judge.  Such would run counter to the policy of this Court against double compensation for exactly the same services. [7] More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of the Constitution, which proscribes additional, double, or indirect compensation.   Said provision reads:

No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law… .

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outside of the MMA.

WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and the decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Legaspi vs. CSC G.R. No. L-72119, May 29, 1987

Facts: The respondent CSC had denied petitioner Valentin Legaspi’s request for information on the civil service eligibilities of Julian Sibonghanoy and Mariano Agas who were employed as sanitarians inthe Health Department of Cebu City. Sibonghanoy and Agas had allegedly represented themselves as civil service eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Sibonghanoy and Agas is guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire theinformation, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the respondent CSC to disclose saidinformation.

The respondent CSC takes issue on the personality of the petitioner to bring the suit. It is asserted that the petition is bereft of any allegation of Legaspi’s actual interest in the civil service eligibilities of Sibonghanoy and Agas.

Issue: Whether or not the petitioner has legal standing to bring the suit

Held: The petitioner has firmly anchored his case upon the right of the people to information on matters of public concern, which, by its very nature, is a public right. It has been held in the case of Tanada vs. Tuvera, 136 SCRA 27, that when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest, and the person at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.

It becomes apparent that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right.

The petitioner, being a citizen who as such, is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner, vs.CIVIL SERVICE COMMISSION, respondent.

 

CORTES, J.:

The fundamental right of the people to information on matters of public concern is invoked in this special civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of certain persons employed as sanitarians in the Health Department of Cebu City. These government employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service eligibles who passed the civil service examinations for sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the respondent Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution (Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of the right in said Constitution the statutory right to information provided for in the Land Registration Act (Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding, this time to demand access to the records of the Register of Deeds for the purpose of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.

The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well as to government research data used as basis for policy development." The new provision reads:

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis. for policy development, shall be afforded the citizen, subject to such stations as may be provided by law.

These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to this Petition. He challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear legal right to be informed of the civil service eligibilities of the government employees concerned. He calls attention to the alleged failure of the petitioner to show his actual interest in securing this particular information. He further argues that there is no ministerial duty on the part of the Commission to furnish the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.

In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the right of the people to information on matters of public concern, which, by its very nature, is a public right. It has been held that:

* * * when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).

From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general "public" which possesses the right.

The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even those who have no direct or tangible interest in any real estate transaction are part of the "public" to whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:

* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say that only those who have a present and existing interest of a pecuniary character in the particular information sought are given the right of inspection is to make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p. 387).

The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a corresponding duty on the part of those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a constitutional regime. Only governments operating under fundamental rules defining the limits of their power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly mandate the duty of the State and its agents to afford access to official records, documents, papers and in addition, government research data used as basis for policy development, subject to such limitations as may be provided by law. The guarantee has been further enhanced in the New Constitution with the adoption of a policy of full public disclosure, this time "subject to reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Art. 11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an imperative duty of the government officials concerned to publish all important legislative acts and resolutions of a public nature as well as all executive orders and proclamations of general applicability. We granted mandamus in said case, and in the process, We found occasion to expound briefly on the nature of said duty:

* * * That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be in included or excluded from such publication. (Tanada v. Tuvera,supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the examination of public records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with the motives, reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the information which the records contain is not flaunted before public gaze, or that scandal is not made of it. If it be wrong to publish the contents of the records, it is the legislature and not the officials having custody thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government agencies are without discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of the reasonable regulations which may be imposed by said agencies in custody of public records on the manner in which the right to information may be exercised by the public. In the Subido case, We recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do so, may inspect, examine or copy records relating to registered lands. However, the regulations which the Register of Deeds may promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that damage to or loss of, the records may be avoided, that undue interference with the duties of the custodian of the books and documents and other employees may be prevented, that the right of other persons entitled to make inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate the manner of inspection by the public of criminal docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent judge for his alleged refusal to allow examination of the criminal docket records in his sala. Upon a finding by the Investigating Judge that the respondent had allowed the complainant to open and view the subject records, We absolved the respondent. In effect, We have also held that the rules and conditions imposed by him upon the manner of examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the petitioner is within the ambit of the constitutional guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information of general interest aids the people in democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting the nation.

But the constitutional guarantee to information on matters of public concern is not absolute. It does not open every door to any and all information. Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore exempt certain types of information from public scrutiny, such as those affecting national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of public interest or public concern.

a. This question is first addressed to the government agency having custody of the desired information. However, as already discussed, this does not give the agency concerned any discretion to grant or deny access. In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As aptly observed, ". . . the government is in an advantageous position to marshall and interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every denial of access by the government agency concerned is subject to review by the courts, and in the proper case, access may be compelled by a writ of Mandamus.

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra,the public concern deemed covered by the statutory right was the knowledge of those real estate transactions which some believed to have been registered in violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed. The Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For mandamus to lie in a given case, the information must not be among the species exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and who are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass the civil service examinations, as in bar examinations and licensure examinations for various professions, are released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case, the government employees concerned claim to be civil service eligibles, the public, through any citizen, has a right to verify their professed eligibilities from the Civil Service Commission.

The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations under the law upon access to the register of civil service eligibles for said position, the duty of the respondent Commission to confirm or deny the civil service eligibility of any person occupying the position becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.