DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM AND WILFREDO CABARDO, PETITIONERS, VS. HON. MELECIO A. GENATO AND DOMINADOR B. BORJE, RESPONDENTS.

The principal issue raised in this Certiorari petition
with a prayer for a Writ of Preliminary
Injunction is whether or not respondent Judge committed grave abuse of
discretion in issuing a Restraining Order, which had the effect of allow­ing
private respondent, Dominador B. Borje,
to retain his position as member of the Board of Directors of the Misamis Occidental Electric Cooperative, Inc., II (MOELCI
II).

Succintly stated, the pertinent facts
follow:

Petitioners David Aguila and Edita Bueno are the Deputy
Administrator and Director for Cooperative Development, re­spectively, of the
National Electrification Administration (NEA).

Petitioner Evelito Elento
is the Acting General Manager of MOELCI II, while petitioners Resurrection Inting, Antonio Lim and Wilfredo Cabardo, are members of its Board of Directors.

Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected Director of MOELCI II, to hold
office as such for three years starting March
25, 1979.

Section 21 of Presidential Decree No. 269 (second paragraph)
provides:

“The provision of any law or regulation to the contrary not­withstanding,
an officer or employee of the government shall be eligible for membership in
any cooperative if he meets the qualifications there­for
and he shall not be precluded from being elected to or holding any position
therein, or from receiving such compensation or fee in relation thereto as may
be authorized by the by-laws; Provided, That elective officers of the
government, except barrio captains and councilors, shall be ineligible to
become officers and/or directors of any cooperative.  x x x” (emphasis supplied)

Section 3, Article IV of the By-laws of MOELCI II also explicitly
states:

“Section 3.  Qualifications.  x x x No person shall be eligible to become or to remain
a Board member of the Cooperative who

x     x     x     x     x

“(c) holds an
elective office in the government above the level of a Barangay
Captain

“x     x     x     x” (underscoring ours)

On 4 January 1980,
private respondent filed his certi­ficate of candidacy for the position of
member of the Sangguniang Panglunsod
of Ozamiz City
in the 30 January 1980
local elections.

On 7 January 1980,
the NEA, through Administrator Pedro G. Dumol, issued
Memorandum No. 18 to the effect that all officials and employees of electric
cooperatives who run for public office, win and assume office, shall be
considered resigned.  The Memorandum was
issued pursuant to the authority granted under PD No. 1645, amending PD No. 269, reading:

“10.  x x x ‘the NEA is empowered to issue orders, rules and
regulations x x x ‘ in the
exercise of its power of supervision and control over electric cooperatives and
other borrower, supervised or controlled entitles (Sec. 5, amending Sec. 10
of-P.D. No. 269).”^[1]

On 11 January 1980,
the NEA Deputy Administrator sent a telegram to the Acting General Manager of
MOELCI II stating that should private respondent Borje
be elected to the Sangguniang Bayan,
he shall be considered resigned from his position as Director for the North
District of Ozamiz City.  Private respondent moved for reconsideration
and requested that he be allowed to serve the unexpired term of his office in
accordance with PD No. 269. 
Reconsideration was denied by NEA on 7 February 1980.

On 3 March 1980,
private respondent filed a Petition for “Prohibition, Mandamus
& Construction of Legal Provisions with Preliminary Injunction and Damages”
against petitioners before the Court of First Instance of Misamis
Occidental, Branch II.  (Spec. Case No.
0511), seeking a declaration of entitlement to remain and to serve his
unexpired term as Director of MOELCI II until March, 1982.

On 3 March 1980,
having won the election, private respond­ent assumed office and began
discharging his functions.

On the same date, 3 March 1980, respondent Judge issued, ex–parte, a temporary Restraining Order commanding
petitioners not to enforce the NEA telegraphic instruction of 11 January 1980
considering private respondent as resigned, and, instead, to allow him to
retain his position as member of the Board of Directors of MOELCI II pending
hearing.^[2]

Petitioners moved to dismiss and to dissolve the Restraining Order
alleging lack of cause of action and invoking section 21 of PD No. 269 (supra),
section 3, Article IV of the By-laws of MOELCI II.  (supra), as well as section 24 of PD No. 269
providing that:

“x x x The
by-laws shall prescribe the number of directors their qualifications other than
those prescribed in this Decree, the manner of holding meetings of the board
and of electing successors to directors who shall resign, die or otherwise be
incapable of acting.  The by-laws may
also provide for the removal of directors from office and for the election of
their successors.  x x
x“

On 24 March 1980,
respondent Judge lifted and
dissolved the Restraining Order,^[3]
only to restore it the next day, 25
March 1980.^[4]

In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed
that NEA possessed the power and authority to promulgate Memorandum No. 18, and
that, similarly, the Board of Directors of MOELCI II had the power to implement
the same under PD No. 269, as amended by PD 1645.

Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to
Dismiss.

On 8 May 1980,
vacation Judge Celso Largo reconsidered the Order of
respondent Judge, dated 25 March 1980,
and dissolved the Restraining Order.^[5]

On 10 May 1980,
the Board of Directors of MOELCI II held a special meeting and passed
Resolution No. 121, S-80, imple­menting NEA Circular No. 18 and declaring
private respondent’s position as member of the Board of Directors of MOELCI II
vacant.

On 6 June 1980, upon a Motion for Reconsideration, re­spondent
Judge set aside the Order of the vacation Judge, dated 8 May 1980, in effect
reviving the Restraining Order, on the ground that, as “councilor” of
Ozamiz City, section 21 of PD No. 269 itself exempts private respondent from the prohibition
imposed on elective officials to become Directors of electric cooperatives.^[6]

Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor
General, advancing the view that Courts of First Instance have no jurisdiction
to issue a Restraining Order and that respondent Judge had committed grave
abuse of discretion in issuing the same.

On 10
October 1980 we
required respondents to submit an Answer and issued a Restraining Order
enjoining respondents from enforcing the Order of the Court a quo
dated 6 June 1980 and from
conducting further proceedings in the case below.  Private respondent Borje
has filed his Answer, petitioners have submitted their Reply, and on 2 February
1981, we resolved to give due
course to the Petition and to consider the case submitted for decision.

We find that respondent
Judge gravely abused his dis­cretion, amounting to lack of jurisdiction, in
issuing the various Restraining Orders, the last of which was dated 6 June
1980.

Private respondent has shown
no clear and explicit right to the position of Director of MOELCI II and is,
therefore, not entitled to a Restraining Order, which partook of the nature of
a mandatory Injunction, commanding as it did that private respondent be
retained in his position as such Director. 
By having been elected member of the Sangguniang
Panglunsod of Ozamiz City,
private respondent rendered himself ineligible to continue serving as a
Director of MOELCI II by virtue of the clear mandate of PD No. 269 providing
that except for “barrio captains and councilors”, elective officials
are ineligible to become officers and/or directors of any coop­erative.  It is clear to us that the term barrio
modifies both captains and councilors. 
Further, the MOELCI II By-laws explic­itly state that no person can
remain a member of the Board if he “holds an elective office above
the level of barrio captain.”

Private respondent’s
argument that PD 269 (sec. 21) does not prohibit Board members of a cooperative
from continuing in their position prior to their election, and that pursuant to
section 24 of PD No. 269 he is entitled, as Director, “to
hold office for the term for which he is elected and until his successor is
elected and qualified,” is untenable. 
Eligibility to an office should be construed as of a continuing nature
and must exist at the commencement of the term and during
occupancy of the office.  The fact that
private respondent may have been qualified at the time he assumed the
Directorship is not suf­ficient to entitle him to continue holding office, if
during the continuance of his incumbency he ceases to be qualified.  Private respondent was qualified to become a
director of MOELCI II at the time of the commencement of his term, but his election
as member of the Sangguniang Panglunsod
of Ozamiz City, and his subsequent assumption of
office, disqualified him to continue as such.

Moreover, it should be
recalled that when respondent Judge issued the Restraining Order of 6 June
1980, NEA Memorandum Circular No. 18 had already been implemented by the MOELCI
Board in the latter’s Resolution No. 121, passed on 10 May 1980, declaring
the position of private respondent, as
Director, vacant.  Strictly
speaking therefore, there was no longer any position which private respondent
could retain.

WHEREFORE, finding that respondent Judge acted with grave
abuse of discretion tantamount to lack of jurisdiction in issuing the
Restraining Order, dated 6 June 1980, the said Order is hereby annulled and set
aside, and the Petition in Special Civil Case No. 0511 of the Court below
hereby ordered dismissed.  The temporary
Restraining Order heretofore issued by this Court is hereby made permanent.

No pronouncement as to costs.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Fernandez, and
Guerrero, JJ., concur.

^[1]
p. 38, Rollo.

^[2]
Annex “B”, p. 27, ibid.

^[3]
Annex “C”, p. 28, ibid.

^[4]
Annex “D”, p. 29, ibid.

^[5] Annex
“E”, pp. 30-33, ibid.

^[6]
Annex “F”, pp. 34-35, ibid.