RUFINO A. CRUZ, ROMULO G. VIRAY, VIRGILIO Z. BANCOD, EDITHA F. DESAMITO, MYRNA R. SISON, AND VIRGINIA USON, PETITIONERS, VS. HON. CIPRIANO B. PRIMICIAS, JR., IN HIS CAPACITY AS …

Direct petition for
Mandamus, with preliminary injunction filed by certain employees of the
Province of Pangasinan, to declare Resolution No. 5
of the Provincial Board and Executive Order No. 2 of the Provincial Governor
null and void; to have the abolition of petitioners’ positions declared
illegal, and compel their immediate reinstatement; to restrain respondents from
excluding petitioners from the enjoyment of their rights as civil service
employees, and to recover attorney’s fees and costs.

It is not disputed that
upon election and assumption of office in 1967 of the respondents Provincial
Governor and Members of the Provincial Board, the latter adopted on January
1, 1968, Resolution
No. 5 providing as follows:

“Resolution No. 5

“RESOLVED by the Provincial Board of Pangasinan,
that for the purpose of promoting simplicity, economy and efficiency in the
operation of the Provincial Government and for the purpose of providing the
necessary expanded services on agricultural exten­sion, rural health,
provincial public works and legal services, etc., the Provincial Governor is
hereby authorized to effect by executive orders from time to time for a period
not exceeding six (6) months from the date of approval of this resolution, such
reforms and changes in the different offices and branches of the Provincial
Government as may be necessary, with the power to diminish, add to or abolish
those existing and create new ones; consolidate related undertakings; transfer
functions, appropriations, equipments, properties, records and personnel from
one office or branch to another; eliminate duplicated services or authorize new
ones not provided for; classify, combine, split or abolish positions;
standardize salaries and do whatever is necessary and desirable to effect
economy and promote efficiency of the government service and provide necessary
services for the promotion of the general social welfare.

“That any action taken by the Provincial Governor pursuant to
this resolution shall be immediately reported to the Provincial Board and shall
be valid and subsisting until the
Provincial Board shall provide otherwise.”

Acting pursuant to this
Resolution, the Governor issued his Executive Order No. 2 on January
2, 1968,
reorganizing the office of the Governor and that of the Provincial Board.  The order expressly abolished the following
divisions provided for in the
Annual Budget for the fiscal year ending on June 30, 1968 -?

1.  Executive Division

2.  Socio-Economic Program
Implementation Division

3.  Political Affairs and
Placement Division

4.  Public Information
Division

5.  Legal Division

as well as
“all the positions listed in the current plantilla
of personnel of said offices,” with certain exceptions.  At the same time, the Executive Order (pars.
d-f) provided:

“(d)  That there is hereby created, effective
January 1, 1968, a private and confidential staff of the Governor under his
immediate control and supervision with such duties and functions as may be
assigned and prescribed by him from time to time in the interest of the
service, composed of the following:

“One Senior Special Assistant
. . . . . . . . .  P8,400.00

“One Private Secretary . . . . . . . . . . . . . . .    6,000.00

“One Asst. Private Secretary . . . . . . . . . .     4,800.00

“Four Special Assistants . . . . . . . . . . . . .     4,800.00

“One Technical Assistant . . . . . . . . . . . . .    4,800.00

“Four Confidential Assistants . . . . . . . . . .    3,600.00

“Six Confidential Assistants . . . . . . . . . . .     3,000.00

“Two Security-Drivers . . . . . . . . . . . . . . . .    2,400.00

“One Caretaker, Urduja House . . . .
. . . . .    2,400.00

“(e)  That as authorized by the Decentralization
Law, there is hereby created, effective January
1, 1968, One Provincial Attorney under the Governor with an annual
salary of P8,400.00
to be assisted by the following staff:

“Two Special
Attorneys . . . . . . . . . . . . . . . P4,800.00

“One Clerk to be occupied by Mr.

Norberto Artacho
whose position as

Mining Clerk is abolished as herein?

above provided . .
. . . . . . . . . . . . . . . . . . .   
2,760.00

“(f)  That there is hereby created a Personnel
Division under the Office of the Governor with such duties and functions as
prescribed under Rule XVII of the Civil
Service Rules in relation to Section 21 of the Civil Service Act of 1959,
composed of the following:

“One Personnel Officer . . . . . . . . . . . . . . .  P6,000.00

“One Assistant Personnel Officer

(Mr. Pedro Nacino) . . . . . . . . . . . . . . . . .    5,160.00

“One Records Clerk (Mrs. Erlinda

Baroma)
. . . . . . . . . . . . . . . . . . . . . . . . 
.   2,280.00

“One Personnel Clerk
(Mr. Jaime Abella) . .   3,120.00

“One Asst. Personnel Clerk (Mrs.

Arsenia Valdez) . . . . . . . . . . . . . . . . . . . .   2,280.00″

Petitioners are
Provincial Clerk eligibles, except Bancod, who is a general clerk eligible.  On or
about January 11 to 15, 1968, they were individually served notices of termination of their
services as follows:

“Pursuant to Executive Order No. 2, dated January 2, 1968, of
the Provincial Governor of Pangasinan, partially
implementing Resolution No. 5, current series, of the Provincial Board of Pangasinan, approved and adopted in its first meeting on
January 1, 1968, I regret to inform you that your services are hereby
terminated effective immediately upon receipt hereof without prejudice to
payment of your 30 days salary.

 “Copy of Executive
Order No. 2 of the Provin­cial Governor is attached hereto for your
information.

“You may also collect the money value of your earned vacation
and sick leave of absence, if there is any.

“Very truly yours,

“By direction of the Provincial
Governor:

“(SGD) DANIEL
C. MACARAEG

“Secretary, Provincial Board”

and coincidentally, the equipment used by said
petitioners was taken, transferred and redistributed to
other retained offices.

As a result, the
petitioners instituted the present proceed­ings on January 26, 1968,
questioning the legality and validity of the Resolution and Order aforesaid, alleging that the abolition of their positions was done pursuant to an invalid delegation of power to the Governor, that
it was done in bad faith, in violation of their security of tenure under the
Civil Service law, as shown by the creation of new confidential positions
“bearing conclusive evidence
of political
accommodation”.

This Court issued a
restraining order and required respondents to answer the petition.  The restraining order was served on February
5, 1968.

In their answer filed on February 12,
1968, respondents pleaded that
the reorganization of the offices of the Provincial Governor and Provincial
Board had been made within the powers of the Provincial government, in order to
effect economy in view of the province’s deficit of P3.714 million pesos; to
promote sim­plicity and efficiency, and to provide for more essential services and activities; that the Governor’s Executive Order No. 2 had been approved and ratified by the Provincial Board
on January 5, 1968, by its Resolution
No. 8, while the supplemental budget to provide for the newly created positions
was ratified by the Board’s Resolution No. 50, of January 26, 1968; that the
actions thus taken were im­mediately
effective, without need of the approval of the Secretary of Finance; and that
the abolition and creation of new positions were made in good faith, the
selection of retained employees had been made on the basis of seniority and
fitness as required by the Civil Service law, those  retained having been appointed earlier than
the petitioners.  The answer also urged
that the petitioners should have exhausted their administrative remedies, by
appealing to the Commissioner of Civil Service.

After
this case was argued in open court, one
of the petitioners, Myrna Sison, formerly
occupying the position of correspondence clerk, manifested in writing that she
was no longer interested in the case and prayed that she be excluded therefrom.  Therefore, the case is limited
at present to petitioners Cruz, Viray, Bancod, De­samito and
Uson, whose positions and emoluments were as follows:

In
issue is the validity and legality of the abolition of the offices held by petitioners, the letter contending
that the reorganization (Executive Order No. 2 of the respondent Governor is
void for lack of authority, and for being in bad faith, arbitrary and
oppressive; while respondents assert that it was a valid exercise of administrative power, motivated by a
desire to obtain economy and efficiency
in the offices concerned.

A preliminary question
must first be disposed of.  Respon­dents
contend that the petition does not formulate a cause of action, because the
available administrative remedies have not been exhausted.  The provisions of sections 16 and 24 of the
Civil Service Law (Rep. Act 2260), section 5 of Rule VII of the Civil Service
Rules, and section 4 of Republic Act 5185, are cited as conferring upon the Commissioner
of Civil Service final authority to pass upon removal,
separation and suspension of officers and employees in the classified service.

We find this point, urged
by respondents, to be without merit.  No
removal or separation of petitioners from the service is here involved, but the validity of the
abolition of their offices.  This is a
legal issue that is for the Courts to decide. 
It is a well-known rule also that valid
abolition of offices is neither removal nor separation of the incumbents (Manalang vs. Quitoriano, 94 Phil.
903; Rodriguez vs. Montemayor, 94 Phil. 964; Castillo vs. Pajo, 103
Phil. 515).  And, of course, if the
abolition is void, the in­cumbent
is deemed never to have ceased to hold office.

The preliminary question
laid at rest, we pass to the merits of the case.

As well-settled
as the rule that the abolition
of an office does not amount to
an illegal removal of its incumbent is the principle that, in order to be
valid, the abolition must be made in good faith.  Where
the abolition is made in bad
faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil
service employees, it is null and void (Briones vs. Osmeña, 104
Phil. 588; Gacho vs. Osmeña, 94 Phil. 208; 103 Phil. 837; Gonzales vs. Osmeña,
L–15901, 30 Dec. 1961; Urgelio vs. Osmeña, 21 October 1963; Ocampo
vs. Duque, 30 April 1966, 16 SC Rep. Anno. 962; Abanilla vs. Ticao, 26 July 1966, 17 SC Rep. Anno. 652; Arao
vs. Luspo, 21 July 1967, 20 SC Rep. Anno. 722).

A review of the record
herein satisfies us that the justifica­tions advanced for the
abolition of petitioners’ offices (economy and efficiency) are but subterfuges,
resorted to for disguising an illegal
removal of permanent civil
service employees, in violation of the security of tenure guaranteed by the
Constitution.

The claim of economy
effectuated through the reorganization is belied by the fact that while 72
positions were abolished, 50 of these were actually vacant.  Only 22 stations were occupied at the time of
the reorganization, carrying total emoluments of P25,538.71
per semester, of which P6,120.00 per semester corresponds to the five remaining
petitioners (Answer, Exh. 3-C).  As against these 22 positions
suppressed by the reorganization (Executive Order No. 2), 28 new positions were
simultaneously created, with a compensation of P87,600.00
per annum, P43,800.00 per semester, for confidential personnel in the office of
the gov­ernor (Exh. Order No. 2, par. d).  In addition, a Provincial Attorney and his
staff (p. 2), and a Personnel Division of five members, importing P13,380.00 per semester were set up.  Thus, against the suppressed items of P25,538.71, new items carrying a total appropriation of P57,180.00 per
semester (or P114,360.00 annually) were created, in addition to P8,000.00 for
casual laborers at the discretion of the Governor.  Where the economy lies is difficult to
see.  Significantly, this
“economy” was the same excuse advanced by the preceding
administration when it attempted to eliminate civil service eligibles
upon its coming into power (Ocampo et al. vs. Duque, supra.)

As to the alleged need
for greater efficiency, it is well to observe that no charge of inefficiency is
lodged against petitioners herein.  Their
efficiency is attested by their promotional appoint­ments in 1967.  What can not be glossed over is that
respondent’s reorganization replaced 22 civil service eligibles
with 23 confidential employees. 
No further elaboration is required to show that in truth and in fact,
what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure would be
totally dependent upon respondents’ pleasure and discretion.  Thus the spirit of the
Civil Service law and of the Constitution are being purposely
circumvented.

The motives behind these
wholesale replacements are made manifest in paragraph 10 of respondents’ own
Answer, where it is averred, in an attempt to justify the new positions
created, that:

“x x x
These positions are indispensable to the respondent Governor, he being the
elected Chief Executive of the Province and it could not be denied that his
position is more political in nature and as such, it is humbly submitted, that he is entitled to a flexible compact staff of highly
confidential assis­tants in whom he has complete trust and confidence not only
in their capacity for work but also in their personal fitness and loyalty.  This should be so because his executive
position is a political one and
as elected Governor, he is also the Chairman of the Provincial Committee of the
Nacionalista Party to which he belongs.  In this situation, it could not be helped
that his office should deal with his own party men on party
matters.  Not only that, as the Chief
Executive of the Province, his office has to keep and take up official secrets
of the government which should not be put in danger of being leaked out to
third parties, and it is for this reason, among others, that the respondent
Governor should have a flexible compact staff of highly confidential
assistants.”

Here
is proof that the true motivation for reorganizing out the peti­tioners was
“not only (in) their capacity for
work but also (in) their personal fitness and loyalty“. 
Political loyalty or disloyalty are not
statutory nor constitutional preconditions for appointment or grounds for
separation of eligibles in the Civil Service.

The situation now facing
the Court is four square with
those of Briones vs. Osmeña and Ocampo vs. Duque,
supra.  And on the authority of these cases, and the rulings
of this Court in other precedents, we have no alternative but to find and
declare that the suppression of petitioners’ positions was done in bad faith and are, hence, illegal and
unwarranted, null and void.

As a consequence of this pronouncement, it is likewise held, that
respondents have unlawfully excluded the petitioners from the enjoyment of an
office to which they are entitled; and that in failing or refusing to include in the 1968-1969
budget items required to cover
appropriations for salaries of petitioners, respon­dents have unlawfully failed
or neglected the performance of an act which the law enjoins as a duty
resulting from office.

In view
of the conclusions arrived at, discussion of the other points raised by
petitioners become unnecessary.

Finally, considering that
the respondents’ attempt to unlaw­fully deprive petitioners of their civil service positions was done in
disregard of clear doctrines of this Court, particularly our ruling in Ocampo vs. Duque, L-22305, 30 April 1966, rendered against the
preceding provincial board of Pangasinan, and that
petitioners herein were ousted even before the lapse of the 30-day notice of termination of services, it is but proper that petitioners be allowed to recover
attorneys’ fees.

WHEREFORE, the
writ of mandamus preyed for by petitioners is hereby granted.  The respondents as members of the provincial board of Pangasinan
are commanded to immediately reinstate the petitioners (except Myrna Sison) to the positions heretofore occupied by them, to pay
them the salaries heretofore withheld since January 5, 1968, and to appropriate
without unnecessary delay, the amounts necessary for the salaries of the
petitioners for the fiscal year 1968-1969, and subsequent years,
together with such amounts as may be necessary to pay the contribution of the
Province of Pan­gasinan to the Government Service
insurance System (GSIS) in con­nection with petitioners’ insurance and
retirement.  Respondents shall further
pay, personally and in solidum, to the
petitioners P3,000.00 by way of attorneys’ fees, and
the costs.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Castro, and Angeles JJ., concur.

Fernando, J., on official leave.