G.R. No. L-44928. October 30, 1981
JOSE M. ALEJANDRINO, PETITIONER, VS. THE HONORABLE FRANCISCO S. TANTUICO, JR., AS ACTING CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE CARLOS P. ROMULO, AS SECRETARY OF FOREIGN A…
ABAD SANTOS,
J.:
In this petition We are asked to review
the action of the Acting Chairman of the Commission
on Audit on the computation of the terminal leave applied for by the petitioner
upon his retirement from the Foreign Service.
The Solicitor General has
stated that, “respondents accept the statement of facts contained in the
petitioner’s brief.” Accordingly, the statement is quoted as follows:
“Petitioner was appointed in the Department of Foreign Affairs
on October 1, 1946, after topping
the Foreign Service Entrance Examination given in June of said year. After a year’s training in the U.S. Department of State in Washington, D.C.,
and the American Embassy, Paris, he rose thru gradual promotions to Ambassador,
Class III, in 1958; Class II, in 1962; and Class l, in 1964. He became due for compulsory
retirement on January
8, 1975, but his service was extended to
the end of February, 1975. His highest salary received was P26,400 per annum. He
applied for terminal leave on January 20, 1975 (See Petition, p. 3).
“There is no question that petitioner was a career officer in
the Philippine Foreign Service, retired at the highest rank.
“Petitioner served, however, twice in the Home Office; first,
from October 1, 1946 to May 3, 1949, or about 2 years and 7
months, and second, from May 2, 1952
to December 31, 1954, or
about 2 years and 8 months (Ibid, pp. 17-18).
“During his two stints in the Home Office, which covered a
total of 5 years and 3 months, he earned 15 days vacation leave and 15 days
sick leave per year of service, pursuant to Secs. 284
and 285A of the Revised Administrative Code, or a total of 78.75 days of
vacation leave and 78.75 days of sick leave (Ibid, p.18).
“Petitioner was in the Philippine Foreign Service from May 4,
1949 to May 1, 1952, or about three years, and then from January 1, 1955 to
February 28, 1975, or about 20 years and 2 months, or a grand total of 23 years
and 2 months. During these two periods,
he earned, pursuant to RA 708, 30 days of vacation leave and 30 days of sick
leave per year of service, or a total of 695 days of vacation leave and 695
days of sick leave. (Ibid,
p.18).
“During his, first assignment in the Home Office, petitioner
spent 34 days of vacation leave and 1 day of sick leave. During his second stint in the Home Office,
he used up 26 days of vacation leave and 59 days of sick leave (Ibid, pp. 18-19).
“During his first assignment abroad, petitioner did not spend
any vacation leave. However, he used up 10 days of sick leave. During his second period of service abroad, he spent 473 days of vacation leave and 16
days of sick leave (Ibid, p. 9).
“All in all, therefore, petitioner spent during his entire
employment in the Home Office and in the Foreign Service a total of 533 days of
vacation leave and 86 days of sick leave.
But in the same period he earned a total of 773 days of vacation leave
and 773 days of sick leave.
“Deducting 533 from 773 would leave petitioner a credit
balance of 240 days of vacation leave. Deducting 86 from 773 would leave him a
credit balance of 687 days of sick leave.
However, under RA 708, and the Foreign Service Regulations issued to
implement it, only a maximum accumulation of 120 days of vacation leave and
240 days of sick leave are allowed to be paid or compensated upon separation
from the service. The excess leave is
forfeited. As in the Foreign Service
alone, petitioner earned 695 days of vacation leave and another 695 in sick
leave, even if the total vacation leave days of 533 and 86 days of sick leave
spent both in the Home Office and in the Foreign Service were deducted from his
vacation leave credits of 695 and 695 days of sick leave, respectively, earned
alone in the Foreign Service, he would still have a credit balance of 162 days
vacation leave and 687 days of sick leave.
These credit balances, which were all earned abroad, are much above the
maximum levels allowed by RA 708 to be compensable.
“On behalf of the Secretary of Foreign Affairs, the then
Assistant Secretary for Administration of the Department of Foreign Affairs,
Ambassador Monico Vicente, approved and submitted to the Auditor of the
said Department, a computation sheet, approving 120 days vacation leave and 240
days sick leave for the petitioner herein under RA 708 and implementing regulations. The Auditing Unit in the Department of
Foreign Affairs disregarded said computation.
Instead, he prepared his own computation based on GAO Memorandum
Circular No. 618, allowing in audit as terminal leave for petitioner herein
only 297 days, of which 39.96 days were considered earned in the Home Office
and 257.04 days as earned in the Foreign Service. As determined by said Auditing Unit, the
leaves earned from 1952 to June 17, 1960 for 39.96 and 184.775 days in the Home
Office and abroad, respectively, were inclusive of Saturdays, Sundays and
holidays, and those earned from June 18, 1960 to January 3, 1975 for 72.288
days were all earned abroad and exclusive of Saturdays, Sundays and
holidays. These findings were later on modified by the Auditor assigned to the
Department of Foreign Affairs by increasing the terminal leave to 302 days, of
which 39.96 days were considered earned in the Home
Office and 262.04 days, in the Foreign Service.
“Prior to the enforcement of GAO MC No. 618, the procedure
followed in the Department of Foreign Affairs, with the approval of the
General Auditing Office, in determining terminal leave was ‘to compute the
leave credits of its officers and employees from their first days of duty until
their retirement/resignation and deduct from the total the leaves spent.’ Under
this method of computation, petitioner would unquestionably be entitled to the
full maximum of 360 days of terminal leave, all earned abroad. As a matter of fact, this was the number of
days of terminal leave for petitioner which was certified by the Assistant
Secretary of Foreign Affairs for Administration to the Auditing Unit assigned
to the Department of Foreign Affairs.
Pursuant to the Philippine Foreign Service Regulations which implement
RA 708, all these 360 leave days shall be exclusive of Saturdays, Sundays and
Philippine holidays.
“Respondent Acting Chairman of the Commission on Audit
sustained the computations of his Auditing Unit in the Department of Foreign
Affairs. Petitioner requested reconsideration
of said action, insisting he is entitled to the 360 days maximum allowed by
law. His request was denied.
“In view of the above, petitioner took the case to this
Honorable Supreme Court as a final recourse.”
The petitioner prays that “after proper proceedings, the
rulings of the Respondent Acting Chairman herein appealed from be overruled and
set aside, the contentions thereon of Petitioner be sustained, his terminal
leave credits be allowed in the maximum of 120 days vacation leave and 240 days
of sick leave, all earned abroad, exclusive of Saturdays, Sundays and holidays,
and their money value be ordered paid in accordance with existing regulations
and practice in the Department of Foreign Affairs, less any amounts that have so far been paid to him as terminal
leave.”
In his brief of 109 pages including annexes, the petitioner has
made two assignments of error each of which is supported by several
propositions.
The first assignment of error reads:
“RESPONDENT ACTING CHAIRMAN OF THE COMMISSION ON AUDIT ERRED
IN RULING THAT THE METHOD OF DETERMINING THE MAXIMUM VACATION AND SICK LEAVES
THAT MAY BE LEGALLY ACCUMULATED BY AND PAID TO PETITIONER PURSUANT TO RA
1081, SHALL BE AS INSTRUCTED IN GENERAL AUDITING OFFICE CIRCULAR NO. 618, WHICH
IS AN INVALID REGULATION ISSUED TO IMPLEMENT SAID STATUTE. “
The propositions submitted to support this assignment of error are:
“1. GAO MEMORANDUM CIRCULAR NO. 618 IS AN
INVALID REGULATION.
“2. ASSUMING ARGUENDO
THAT GAO MC NO. 680 IS A VALID
REGULATION UNDER RA 1081, IT CANNOT BE VALIDLY APPLIED TO PERSONNEL IN THE
PHILIPPINE FOREIGN SERVICE.
“3. IN
APPLYING GAO MC NO. 618,
INSTEAD OF THE FOREIGN SERVICE REGULATIONS, IN THE COMPUTATION OF THE TERMINAL
LEAVE OF PETITIONER, RESPONDENT ACTING CHAIRMAN OF THE COMMISSION ON AUDIT
DENIED HIM HIS CONSTITUTIONAL RIGHT TO THE EQUAL PROTECTION OF THE LAWS.”
The second assignment of error reads:
“RESPONDENT ACTING CHAIRMAN OF THE COMMISSION ON AUDIT ERRED
IN RULING THAT THE EXCLUSION OF SATURDAYS, SUNDAYS AND HOLIDAYS FROM THE
TERMINAL LEAVE (MAXIMUM ACCUMULATION OF UNUSED VACATION AND SICK LEAVES
PAYABLE TO RESIGNING, OR RETIRING OFFICERS OR EMPLOYEES OF THE GOVERNMENT, OR THOSE OTHERWISE SEPARATED FROM THE SERVICE THRU NO FAULT OF THEIR OWN) AS PROVIDED IN RA 2625 APPLIES ONLY TO
LEAVE CREDITS EARNED AFTER JUNE 17, 1960, THE DATE OF EFFECTIVITY
OF RA 2625.”
The propositions submitted to support this assignment of error are:
“1. RA 2625 APPLIES TO AND COVERS ALL VACATION
AND SICK LEAVE CREDITS REGARDLESS OF WHEN EARNED.
“2. RA 1880 IMPLIEDLY MODIFIED THE REVISED
ADMINISTRATIVE CODE, AS AMENDED BY ACT 3374 AND COM. ACT 490.
“3. ASSUMING ARGUENDO
THAT THE FIRST RESPONDENT’S INTERPRETATION OF RA 2625 IS SUSTAINABLE AND VALID, THE PROVISIONS OF SAID LAW ARE NOT APPLICABLE TO
OFFICERS AND EMPLOYEES IN THE PHILIPPINE FOREIGN SERVICE.
“4. IN
APPLYING RA 2625 IN THE COMPUTATION OF PETITIONER’S TERMINAL LEAVE PAY,
INSTEAD OF THE FOREIGN SERVICE REGULATIONS, RESPONDENT ACTING CHAIRMAN OF THE
COMMISSION ON AUDIT DENIED PETITIONER HIS CONSTITUTIONAL RIGHT TO THE EQUAL PROTECTION
OF THE LAWS.”
We believe that this case has been made needlessly complex by the
submission of excessive propositions and the situation has been compounded by
the fact that the Solicitor General’s brief has been of marginal utility.
We do not have to rule
squarely on the first assignment of error nor on the second. The case can be decided on the basis of the
second and third propositions under the first and second assignments of errors
respectively. These propositions are:
“2. ASSUMING ARGUENDO
THAT GAO MC NO. 680 IS A VALID REGULATION UNDER RA 1081, IT CANNOT BE VALIDLY
APPLIED TO PERSONNEL IN THE PHILIPPINE FOREIGN SERVICE.
“3. ASSUMING ARGUENDO
THAT THE FIRST RESPONDENT’S INTERPRETATION OF RA 2625 IS SUSTAINABLE AND VALID, THE PROVISIONS OF SAID LAW ARE NOT APPLICABLE TO OFFICERS
AND EMPLOYEES IN THE PHILIPPINE FOREIGN SERVICE.”
The petition is impressed with merit.
Sec. 5, Part D, Title VI, of R.A. No.
708, otherwise known as the Foreign Service Act of the Philippines
[1952] provides as follows:
“Sec. 5. Leave
of absence. – (a) Kinds of leave.
– All officers and employees of the service who are citizens of the Philippines
shall be entitled to thirty days vacation leave and thirty days sick leave with
full pay for each year of service. Alien
clerks and employees shall be entitled to such vacation and sick leave as they
might be entitled to where they employed by their own government in the place
where the post is situated, but in no case should such leave exceed thirty days
vacation and thirty days sick leave for each year of service.
“(b) Accumulation of leave. – Under such
regulations as the Secretary shall prescribe with the approval of the
President, all officers and employees of the service shall be entitled to
accumulation of any vacation or sick leave not taken in any year to a maximum
period of one hundred twenty days vacation and two hundred forty days sick
leave, which accumulated leave may be granted in whole or in part at any time
by the Secretary, subject to the exigencies of the service, upon proper request
therefor.”
And the pertinent provisions of the Foreign Service Regulations
on leaves of absence read as follows:
“General Provision. All officers and employees of the Foreign
Service who are citizens of the Philippines
whether permanent or temporary shall be entitled to thirty days vacation leave
and thirty days sick leave excluding Philippine holidays, Saturdays and
Sundays, with full pay for each year of service.
“Accumulation of leave. Officers and employees of the service shall
be entitled to accumulation of any vacation or sick leave not taken in any year
to a maximum period of one hundred
twenty days vacation leave and two hundred forty days sick leave. Philippine holidays, Saturdays and Sundays
shall not be applied against the vacation leave or sick leave
accumulated.”
Since the petitioner was admittedly a member of the foreign service, his leave rights are governed by the
Foreign Service Act and the regulation issued pursuant thereto. “Sec. 4. Supplementary rules and regulations.
– The Secretary, with the approval of the President, may issue such
supplementary rules and regulations as may be necessary to implement the
provisions of this Act.” (Title VII, Foreign Service Act.)
Under the regulations, “Philippine holidays, Saturdays and
Sundays shall not be applied against the vacation leave or sick leave
accumulated.” However, notwithstanding the exclusion of Philippine
holidays, Saturdays and Sundays, the Foreign Service Act and the implementing
regulations limit the “accumulation of any vacation or sick leave not
taken in any year to a maximum period of one hundred twenty days vacation leave
and two hundred forty days sick leave.” The petitioner, therefore, could
not accumulate more than 360 days of leave even if Saturdays, Sundays and holidays be excluded.
The petitioner states on
page 64 of his brief:
“As already stated in the Statement of
Facts, petitioner earned 695 days of vacation leave and 695 days of sick leave
during his entire service abroad.
Even if the entire 533 days of vacation leave spent by him both in the
Home Office and in the Foreign Service were deducted from the aforementioned
695 days, he would still have a credit balance of 162 days of vacation leave,
earned abroad. And even if the 86 days
of sick leave used by him during his
entire employment, both in the Home Office and in the Foreign Service, from the
695 days of sick leave earned by him in the Foreign Service alone, he would
still have a credit balance of 609 days of sick leave, all earned abroad. Subtracting 120 days of vacation leave
maximum allowable for commutation or payment and 240 days of sick leave maximum
allowable for commutation or payment from said credit balances, there would
still be an excess of 42 days of vacation leave and 369 days of sick leave to
be forfeited by petitioner. In the light of these facts, there can be no
question that petitioner is entitled to a maximum of 360 days, all earned abroad, for terminal leave.”
The respondents have not disputed the above statement.
WHEREFORE, the petition is granted and the respondents are
hereby ordered to pay the money value of the petitioner’s terminal leave
amounting to 360 days less any amounts already paid. No costs.
SO ORDERED.
Barredo, (Chairman), Aquino, Concepcion, Jr., and De Castro, JJ., concur.