G.R. No. L-36845. August 21, 1987
CITY MAYOR EULOGIO E. BORRES, CITY OF CEBU, CITY COUNCIL OF CEBU, CEBU CITY TREASURER AND CEBU CITY AUDITOR, PETITIONERS, VS. COURT OF APPEALS, GERMAN O. LUMAPAC AND BARTOLOME E…
PADILLA, J.:
Petition for review on certiorari of the decision[1]
of the Court of Appeals, dated 12
April 1973, in CA-G.R. No. 48700-R, which affirmed the decision of
the Court of first Instance of Cebu in Civil Case No.
R-10848.
Private respondents German O. Lumapac
and Bartolome Elizondo were
appointed by the then Mayor of Cebu City, Carlos J. Cuison, as Senior Security and Security Guard,
respectively, in the Office of the Vice-Mayor, as recommended by then
Vice-Mayor of Cebu City, Luis V. Diores. In the 1967 local elections, Sergio Osmena, Jr. and petitioner Eulogio
Borres ran and won as Mayor and Vice-Mayor, respectively,
of Cebu City. Osmena, Jr.,
however, did not assume office; hence petitioner Borres
became the Acting Mayor of Cebu City. Upon assuming office, or on 3 January 1968, petitioner Borres terminated the services of private respondents
“due to lack of confidence”.
On 9 October 1968,
private respondents German O. Lumapac and Bartolome Elizondo, together with
Vicente Lao, filed with the Court of First Instance of Cebu,
Branch III, a petition for mandamus with damages against petitioners,
docketed therein as Civil Case No. R-10848, and praying among others that
judgment be rendered (a) declaring their removal unlawful and void; (b)
ordering their reinstatement to their former positions, with right to receive
back salaries from the date of removal up to actual reinstatement; (c)
directing payment of moral and exemplary damages plus attorney’s fees and
litigation expenses in the sum of P2,500.00; and (d) adjudging costs against
City Mayor Eulogio E. Borres.[2]
In due course, petitioners filed their answer, admitting some
allegations and denying other allegations of the petition, and setting forth
special and affirmative defenses.[3]
After several postponements, pre-trial was held on 22 December 1969, after which, the
parties submitted the following:
STIPULATION OF FACTS
“COME NOW the parties in the above-entitled case, by their
undersigned counsels and to this Honorable Court, respectfully submit the
following agreed statement of facts:
“1. Petitioner German
O. Lumapac started service in the City of Cebu on December 16, 1959, occupying various positions
of Informer, Laborer and Special Agent.
Effective July 1, 1963,
he was appointed Senior Security, Office of the Mayor, as shown in his
appointment (Annex A). Effective July 1,
1965, he was extended an appointment (Annex B) as Senior Security, Office of
the Vice-Mayor, at P2,160.00 per annum which was later superseded by another
appointment (Annex C) with an increased salary of P3,060.00. The provisional status of his appointment was
changed to permanent at the same rate as shown in his appointment, effective November 16, 1966 (Annex D), which
was his last appointment prior to the termination of his services.
“2. Petitioner
Vicente Lao started service in the City of Cebu on
October 1, 1961, as Confidential Agent, Division of Inspection, Office of the
Mayor at P1,800.00 per annum. His last
appointment, prior to the termination of his services, is to the position of
Confidential Agent, Inspection Division, Office of the Mayor, effective January
1, 1966 at P4,020.00 per annum (Annex E).
“3. Petitioner Bartolome Elizondo started
service in the City of Cebu on January 2, 1964, as
Security Guard, Office of the Vice-Mayor, at P1,560.00 per annum (Annex
F). His next and last appointment for
salary adjustment, prior to the termination of his services, is as Security
Guard, Office of the Vice-Mayor, at P2,160.00 per annum (Annex G).
“4. Petitioner German
O. Lumapac is a civil service (Testimonial) eligible
(Security Guard) since December 31,
1964, as shown in the attached copy of Notice of Eligibility (Annex
H).
“5. The duties of
Security Guard held by petitioner Bartolome Elizondo, a non-eligible, as well as those of Senior
Security held by petitioner German Lumapac, are shown
in their respective C.S. Form 9-A (revised 1963), xerox
copies of which are hereto attached and marked as Annexes ‘1’ and ‘2’.
“6. On January 3, 1968, petitioners’ services
were terminated effective upon their receipt on said date of letters of
termination (Annex 1, 1-1, 1-2) from respondent City Mayor. At the time of their termination, petitioners
were members of the GSIS and had the following efficiency ratings: German Lumapac,
89%; Vicente Lao, 88%; and Bartolome Elizondo, 86%.
“7. After the
termination of their services, the positions of petitioners German Lumapac, Vicente Lao and Bartolome
Elizondo were filled up by Eduardo Evangelista,
Vicente Rosales and Simplicio Alpuerto,
respectively, all non-eligibles, by appointments
issued by the respondent City Mayor Borres.
“8. After the
termination of their services, petitioners sent petitions (Annexes J and K) to
the Commissioner of Civil Service, through the Regional Director, Civil Service
Commission, Regional Office No. 5, Cebu City,
asking for the annulment of their termination and their consequent
reinstatement. The petition of Vicente
Lao and Bartolome Elizondo
was referred by 1st Indorsement, dated March 6, 1968 (Annex L) to the
respondent Mayor Borres, by the Regional Director of
the Civil Service Commission, Cebu
but until now no answer or action was taken by said respondent. By a 5th Indorsement,
dated February 2, 1968
(Annex M), the Regional Director, Civil Service Commission, Regional Office
No. 5, Cebu
City, forwarded to the Commissioner
of Civil Service, Manila, petitioner German Lumapac’s above-mentioned petition for reinstatement. Despite the aforementioned petitions, no
definite action has been taken by the Commissioner of Civil Service until the
filing of this case and even until this date.
“The parties reserve their right to introduce evidence on
matter not covered by the foregoing Stipulation of Facts.”[4]
After trial, the court a quo, Hon. Mateo Canonoy presiding, rendered a decision[5],
the dispositive portion of which reads as follows:
‘IN VIEW OF THE FOREGOING, judgment is hereby rendered, declaring
the dismissals of German O. Lumapac and Bartolome Elizondo on January 3,
1968 illegal and hereby orders the respondent City Mayor to reinstate them
immediately; declaring the said German O. Lumapac and
Bartolome Elizondo entitiled to their backsalaries
as Senior Security Guard and Security Guard respectively from January 3, 1968
until their reinstatements; and condemning the City of Cebu
to pay their backsalaries at the rate of P3,060.00
and P2,160.00 per annum respectively and one thousand pesos as attorney’s fees
and the costs of this action.
“The petition as to Vicente Lao is hereby dismissed.
“IT IS SO ORDERED.”[6]
Vicente Lao, as well as petitioners herein, moved to reconsider
the aforesaid decision of the trial court.
Their respective motions for reconsideration[7]
were denied.[8]
Dissatisfied, Vicente Lao and herein petitioners appealed to the
Court of Appeals, docketed therein as CA- G.R. No. 48700-R. On 11
April 1973, said appellate court promulgated a decision[9]
affirming that of the trial court. It
ruled, among others, as follows:
“x x x. It is well settled that an employee or
officer in the Civil Service who is holding a primarily confidential position
with a permanent status is within the protection of Section 4, Article XII of
the old Constitution which provides:
`No officer or employee in the Civil Service shall be removed
except for cause as provided by law.’
In the case of Gray vs.
de Vera, 28 SCRA 268 (L23966, May 22, 1969) the Supreme Court ruled that:
“a position declared primarily confidential comes within the
purview of Section 4, Article XII of the Constitution. The permanent incumbent thereof can only be
removed or suspended for cause as provided by law.”
There can be no dispute that the
petitioners Lumapac, Elizondo
and Lao are holding positions which are primarily confidential in nature. But are their appointments permanent? With respect to petitioners German O. Lumapac and Bartolome Elizondo the records show that their appointments are
permanent, that of Vicente Lao is temporary.
In the same case of Gray vs. De Vera, the Supreme Court ruled that the
petitioner was entitled to a hearing and an opportunity to defend himself so
that his summary dismissal is illegal and was entitled to his
reinstatement. The Supreme Court in said
case said:
“xxx although the President, in Executive Order No. 399,
declared the position of secretary to the board of a government corporation
‘primarily confidential in nature’ it does not follow that a board secretary
whose appointment was permanent may be removed from office without a formal
charge specifying the ground for removal and without giving him an opportunity
of being heard. A position declared
primarily confidential comes within the purview of Section 4, Article XII of
the Constitution with respect to removal of a permanent incumbent
thereof.”
xxx xxx xxx xxx “x x x. In the present
case, the petitioners German O. Lumapac and Bartolome Elizondo were dismissed
summarily without the benefit of a hearing.
Even assuming that when the officer holds a primarily confidential
position, he can be removed for lack of confidence, still, we believe that
before he is actually removed he should at least be entitled to know the reason
why he is being removed. Otherwise he
will not be able to determine whether he is being removed for cause or
not. A curt note from the respondent to
the effect that his services is terminated without giving him a chance to know
why and to be heard is offensive to the foregoing Constitutional precept.
xxx xxx xxx xxx
“x x x. One reason given by the respondent Mayor in
removing petitioners is that their term of office are co-terminus with the term
of the public officials they are supposed to serve and therefore he can
separate them from the service any time upon the termination of office of the
public officials to whom they are rendering their services. We cannot subscribe to this argument. By virtue of their appointment the
petitioners are clearly assigned to the Office of the Vice-Mayor and not to the
particular officers. The office is
permanent but the officers’ stay in office is not. So long as the Office of the Vice-Mayor
exists whoever may be the occupant of the office, the petitioners are under
obligation to discharge their duties until their services are lawfully
terminated. In other words, the right of
the petitioners to stay in their position is co-terminus with the Office of the
Vice?Mayor and not with the term of any specified incumbent of the
office. Respondent Mayor has admitted
that the appointments of petitioners German O. Lumapac
and Bartolome Elizondo are
permanent, although he contends that they are permanent only as noted in their
respective appointment papers. If their
appointments are permanent as noted in their appointments then definitely they
enjoy a permanent status for what characterizes an appointment is the nature of
the appointment extended. (Villanosa vs. Alera, L-10586, May
29, 1957). The very nature of their
appointments are reflected in the appointment papers themselves.
“Respondent Mayor claims that the lower court erred in not
finding that petitioners have failed to exhaust administrative remedies before
filing the present action. He contends
that under Section 16, paragraph (j) of the Civil Service Act of 1959 it is
within the power of the Commisioner to hear and
determine Appeals by a person aggrieved by an action or determination of any
appointing authority contrary to the provisions of the Civil Service Law and
Rules and therefore petitioners should have taken their case to the Commisioner of Civil Service and waited for his decision on
the matter. He insists that failure of
petitioners to pursue such remedy provided by the Civil Service Act is fatal to
their claims. Paragraph 8 of the
Stipulation of Facts seems to belie the charge of respondent that petitioners
failed to exhaust their administrative remedies. Said paragraph provides:
“after the termination of their services, petitioners sent
petitions (Annexes J and K) to the Commisioner of
Civil Service, through the Regional Director, Civil Service Commission Regional
Office No. 5, Cebu
City, asking for the annulment of
their termination and their consequent reinstatement. The petition of Vicente Lao and Bartolome Elizondo was referred
as 1st Indorsement, dated March 6, 1968 (Annex L) to respondent Mayor Borres, by the Regional Director of the Civil Service Commision, Cebu
City, but until now no answer or
action was taken by said respondent. By
a 5th Indorsement, dated February 2, 1968 (Annex M), the Regional Director, Civil
Service Commision, Regional Office No. 5, Cebu City,
forwarded to the Commisioner of Civil Service, Manila,
petitioner German Lumapac’s above-mentioned petition
for reinstatement. Despite the
aforementioned petitions, no definite action has been taken by the Commisioner of Civil Service until the filing of this case
and even until this date.”
“From the foregoing it is clear that the petitioners have
tried to resort to the principle of exhaustion of administrative remedies but
that the Commisioner of Civil Service did not seem to
have any definite action on the matter.
In such an event the only thing left to the petitioners is to go to
Court for relief. One of the recognized
exceptions to the principle of exhaustion of administrative remedies is when it
is absolutely futile to resort to such remedies, as when the administrative
body does not want to act or delays action on the problem on hand. Besides, the principle of exhaustion of
administrative remedies does not apply and the aggrieved party can immediately
go to court for relief when the action of the administrative body or officer is
manifestly illegal or where the administrative body or office concerned has
acted without any lawful authority, as in the present case. (Azur vs.
Provincial Board, 27 SCRA 50; Mitra vs. Subido, 21 SCRA 127).”
As a consequence of the above decision of the Court of Appeals,
herein petitioners interposed the present petition for review on certiorari,
claiming that the Court of Appeals erred:
(1) in finding that the appointments of German O. Lumapac
and Bartolome Elizondo are
permanent; (2) in declaring that they were illegally dismissed; (3) in not
finding that private respondents have not exhausted administrative remedies
before filing the action for mandamus; and (4) in affirming in toto the decision of the trial court.
The principal issue to be resolved is whether or not private
respondents German O. Lumapac and Bartolome
Elizondo may be dismissed, without cause or hearing,
on the mere ground of lack of confidence.
Petitioners maintain the affirmative. They claim that both the trial court and the
Court of Appeals erred in applying the rule laid down in Gray vs. De Vera.[10]
In said case, Benjamin A. Gray was appointed Secretary to the Board of
Directors of the People’s Homesite and Housing
Corporation (PHHC). On 12 January 1959, he sent a telegram
to then President Carlos P. Garcia suggesting a complete revamp of the Board of
Directors of the PHHC due to the Board’s acts of mismanagement and
misconduct. On the following day, the
PHHC Board of Directors passed Resolution No. 331 terminating his services on
account of loss of confidence due to treachery or disloyalty to the Board. Gray filed in the Court of First Instance of Rizal an action for quo warranto. After trial, the court rendered a decision
upholding the validity of Resolution No. 331 on the ground that the sending of
the telegram to President Garcia was an act of treachery or disloyalty to the
Board of Director and constituted cause for his removal from office at any
time, considering that the position of Board Secretary was primarily
confidential in nature. On appeal, this
Court in setting aside the decision of the court a quo held,
among others, that:
“x x x. Although the President, in Executive Order
No. 399, declared the position of secretary to the board of a government
corporation “primarily confidential in nature”, it does not follow
that a board secretary whose appointment was permanent may be removed from
office without a formal charge specifying the ground for removal and without
giving him an opportunity of being heard.
A position declared primarily confidential comes within the purview of
Section 4, Article XII of the Constitution with respect to removal of the
permanent incumbent thereof. x x x.”
xxx xxx xxx xxx
“The removal of Board Secretary Gray from the primarily
confidential position to which he had been permanently appointed was illegal in
view of the following considerations:
“(1) There was no
lawful cause for removal. The sending of
the telegram of January 12, 1959 to President Garcia suggesting a complete
revamp of the Board of Directors of the PHHC due to the Board’s acts of
mismanagement and misconduct, the most serious of which was that the directors
were grabbing as “quotas dwelling awards inspite
applicants of long standing”, was an act of civic duty. The telegram was a privileged communication
presumably made in good faith and capable of being substantiated by evidence.
“According to the testimony of Director Manuel T. Leelin, the act of Board Secretary Gray in sending the
telegram of January 12, 1959
to the President of the Philippines
was an act of treachery or disloyalty to the Board.
xxx xxx xxx xxx
“We cannot agree, for the following reasons;
First. As pointed
out, the sending of the telegram to the President of the Philippines
was an act of civic duty. The telegram
was a privileged communication presumably sent in good faith and capable of
being proved by evidence.
Second. The position
of secretary to the board of a government corporation was declared by the
President in Executive Order No. 399 primarily confidential in nature with the
obvious intent that the position be filled by an appointee of unquestioned
honesty and integrity. Hence, the act of
Board Secretary Gray in reporting to the President of the Board’s acts of
mismanagement and misconduct was in consonance with the honesty and integrity
required for the position.
“Assuming that Gray owed loyalty to the Board, that loyalty was
in the interest of good government and not in the personal interest of the
directors to the extent of concealing the shenanigans of the Board. x x x.
“If the charges of mismanagement and misconduct contained in
the telegram were false, the Board of Directors should have required Board
Secretary Gray to show cause why he should not be removed from office for
making such false charges. The Board
Secretary would have been given an opportunity of being heard. If unable to substantiate his charges, the Board
could have made a finding to that effect and remove Board Secretary Gray from
office for serious misconduct (not for treachery or disloyalty to the Board).
“(2) Assuming, arguendo, that appellant’s telegram to President Garcia
constituted lawful cause for his removal from office, the fact remains that he
was summarily removed one day after he had sent the telegram, and that no
formal charge was filed against him stating the ground for removal and giving
him an opportunity of being heard. He
was, thus, removed from office without due process of law, in view of which his
removal was illegal.”
Petitioners contend however that there is
no parallelism between the Gray case and the case at bar. They claim that the removal of Gray as PHHC
board secretary was declared illegal because of some attendant vital
considerations in said case, not present in the case at bar. In other words, petitioners contend that the
present case is not “on all fours” with the Gray case. Thus, they argue that the loyalty of Gray was
to the Board, in the interest of good government, and not, in the personal
interest of the members of the Board of Directors, and that the relationship
between Gray and the PHHC Board of Directors and the relationship between
private respondents and the Vice-Mayor of Cebu City
are totally different, for the latter denotes a very close personal relation by
reason of the nature of the duties and functions of a Security Officer
and Security Guard, while the former does not.
There are two (2) instances when a position may be considered
primarily confidential: (1) when the
President, upon recommendation of the Commissioner of Civil Service, has
declared the position to be primarily confidential; or (2) in the absence of
such declaration, when by the nature of the functions of the office, there
exists close intimacy between the appointee and the appointing power, which
insures freedom of intercourse without embarrassment or freedom from misgiving
of betrayals of personal trust or confidential matters of state.[11]
However, upon the enactment of the 1959 Civil Service Act (RA 2260), it is the nature
of the position which finally determines whether a position is primarily
confidential. Executive pronouncements
can be no more than initial determinations that are not conclusive in
case of conflict.[12]
Thus, Section 5 of the 1959 Civil Service Act (RA 2260) provides, as follows:
“SEC. 5, The Non-competitive Service. – The non-competitive or unclassified service
shall be composed of positions expressly declared by law to be in the
non-competitive or unclassified service or those which are policy
determining, primarily confidential or highly technical in nature. (underscoring ours)
In the Gray case, Executive Order No. 399 which declared
the position of secretary to the Board of Director of a government corporation
“primarily confidential in nature” was issued on 5 January 1951,
i.e., before the enactment of the 1959 Civil Service Act (RA 2260). As held by this Court in said Gray case,
“(t)he position of secretary to the board of a government corporation was
declared by the President in Executive Order No. 399 primarily confidential
with the obvious intent that the position be filled by an appointee of
unquestioned honesty and integrity” and that the “act of Board Secretary
Gray in reporting to the President the Board’s acts of mismanagement and
misconduct was in consonance with the honesty and integrity required of
the position”. In other words,
“honesty” and “integrity”, were the primary considerations
for appointment to the position of board secretary of a government
corporation. The position did not,
however, involve “such close intimacy” between the board secretary
and the Board of Directors of the PHHC, as would insure “freedom from
misgivings of betrayals of personal trust”.
In the present case, the positions of Senior Security and
Security Guard in the Office of the Vice-Mayor of Cebu
City, are primarily confidential in nature because of the duties and functions
attached to said positions. In his
request for certification for eligibility as Senior Security, private
respondent German O. Lumapac enumerated his duties,
as follows: (1) to give adequate
protection for the Vice-Mayor’s safety; (2) to accompany the Vice-Mayor in all
his appointments; and (3) to perform other duties assigned to him by the
Vice-Mayor from time to time.[13]
On the other hand, as Security Guard, private respondent Bartolome
Elizondo performs the following duties: (1) to act as bodyguard of the person of the
Vice-Mayor; (2) to prepare security measures for the safety of the Vice-Mayor;
and (3) to perform other duties which the Vice-Mayor may assign to him from
time to time.[14]
By virtue of the nature of the duties and functions attached to said positions,
the relationship between the Vice-Mayor and his Security is one that depends
on the highest degree of trust and confidence, such that trust and confidence
are the primary reasons for appointment thereto. As a matter of fact, private respondents were
appointed to said positions upon the recommendation of the then Vice-Mayor Luis
V. Diores.
Petitioner Borres should not be deprived of
the right to choose his own men to act as his Security.
In the light of the foregoing, the Court holds that the rule laid
down in Gray vs. De Vera is not applicable to the factual environment of
the present case.
The tenure of personnel holding primarily confidential positions,
such as the respondents, ends upon loss of confidence, because their term of
office lasts only as long as confidence in them endures, thus, their cessation
involves no removal.[15]
In Salazar vs. Mathay [16]
where the petitioner therein was appointed to the position of Confidential
Agent in the Office of the Auditor, GSIS, which position was likewise declared
as primarily confidential under Executive Order No. 265, this Court in
upholding her termination held:
“x x x. Her position being primarily confidential,
petitioner cannot complain that the termination of her services as confidential
agent in the Office of the Auditor, GSIS is in violation of her security of
tenure. In the case of Delos Santos vs. Mallare, supra, primarily confidential positions are
excluded from the merit system, and dismissal at pleasure of officers or employees
therein is allowed by the Constitution, although in Ingles vs. Mutuc[17]
this assumption was held to be inaccurate.
According to the Court, the proper expression to be used is that the
term of the incumbent merely expires.
Thus in said case, the Court held:
`This should not be misunderstood as denying that the incumbent of
a primarily confidential position holds office at the pleasure only of the appointing
power. It should be noted, however, that
when such pleasure turns into displeasure, the incumbent is not ‘removed’ or
‘dismissed’ from office — his ‘term’ merely ‘expires’ in much the same way as
an officer, whose right thereto ceases upon the expiration of the fixed term
for which he had been appointed or elected, is not and cannot be deemed ‘removed’
or ‘dismissed’ therefrom, upon the expiration of said
term. The main difference between the
former – the primarily confidential officer — and the latter is that the
latter’s term is fixed or definite, whereas the former is not prefixed, but indefinite,
at the time of his appointment or election, and becomes fixed and determined
when the appointing power expresses its decision to put an end to the services
of the incumbent. When this event takes
place, the latter is not ‘removed’ or ‘dismissed’ from office — his term has
merely ‘expired’.
“Accordingly, it can be said that petitioner was not removed
from her office as confidential agent in the office of the Auditor, GSIS, but
that her term to said position has already expired when the appointing power
terminated her services.”
Similarly, in the case at bar, it may also be said, with equal
vigor, that when petitioner Eulogio Borres, terminated the services of private respondents
“due to lack of confidence”, they were not “removed” or
“dismissed” from the service; their “term” in their
respective positions merely “expired”. Hence, they were not illegally
“removed” or “dismissed” from the service.
Having arrived at the above conclusion, we do not find it
necessary to discuss the other issues raised in the petition.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals, dated 12 April 1973, is hereby REVERSED and
SET ASIDE. Without costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Bidin,
Sarmiento, and
Cortes, JJ., concur.
[1]
Penned by Justice Ruperto Martin, with the
concurrence of Justices Lourdes P. San Diego and Ramon G. Gaviola,
Jr.
[2]
Original Record, p. 1
[3] Id.,
p. 12
[4]
Original Record, pp. 43-45
[5] Original
Record, p. 133
[6]
Record, p. 142
[7]
Original Record, pp. 145, 148
[8]
Original Record, pp. 177, 181
[9] Rollo, p. 15
[10]
28 SCRA 268
[11]
Salazar vs. Mathay, 73 SCRA 275, 278.
[12] Pinero vs. Hechanova, 18
SCRA 417, 423
[13]
Original Record, p. 20
[14] Id.,
p. 19
[15] Cadiente vs. Santos,
etc., et al., 142 SCRA 280
[16] Supra
[17]
26 SCRA 171