RAMON DUTERTE, ETC., ET AL., PETITIONERS-APPELLANTS, VS. FLORENCIO MORENO, ET AL., RESPONDENTS-APPELLEES. SUSANO NEGADO, MANAGER OF THE NATIONAL WATERWORKS AND SEWERAGE AUTHORIT…

The facts of this case, which are
not disputed, are stated in the decision appealed from, as follows:

“x x
the petitioners, except Hon. Ramon Duterte, who is the
incumbent Mayor of the City of Cebu, and petitioners
Jorge Duterte, Isidro Godinez, Ricardo Zabala and Artemio Luceno, are officers and
employees of the Osmena Waterworks System, Cebu City, who have been theretofore duly appointed as such
by the Secretary of Public Works and Communications, receiving their
corresponding salaries as authorized under said appointment (Exh. ‘l’) The twelve last named
petitioners, Jorge Duterte, Epifanio Aban, Diosdado Abangan, Julian Antiporta, Bonifacio Cabellon, Catalino Cardiente, Vicente Durano, Isidro
Godinez, Artemio Luceno, Maximo Robeles, Aurelio Samson and Ricardo Zabala, became employees of the Osmena Waterworks System only by virtue of the appointments
extended to them by Hon. Sergio Osmeña, Jr., then City
Mayor of the City of Cebu, sometime in July, 1956,
when their co-petitioners, except Mayor Ramon Duterte,
were also given new appointments with increase in their salaries, by then Mayor
Sergio Osmeña, Jr. Said appointments were allegedly
predicated on the provisions of Section 21 of the Charter of the City of Cebu, to supersede the first named 57 petitioners’ previous
appointments extended to them by the Secretary of Public Works and
Communications, duly approved by the Commissioner of Civil
Service.

“The appointments of the
petitioners made by then Mayor Sergio Osmeña, Jr.,
were thereafter submitted to the Bureau of Civil Service and the Executive
Secretary for approval as required by law, but the same were disapproved (Exh. ‘C’ and Exh. ‘15’). The City Mayor of Cebu, in a letter dated October 22, 1957, asked for the
reconsideration of the ruling of the Commissioner of Civil Service (Exh. ‘D’), and the latter again denied to reconsider his
opinion but reiterated his ruling disapproving the appointments extended to the
petitioners by the Mayor of the City of Cebu (Exhs.
‘E’, ‘E-1’, ‘E-2’ and ‘15’). The City Mayor of Cebu then appealed the ruling of the Commissioner of Civil
Service to the President of the Philippines who, through the Executive
Secretary, disapproved also the said appointments (Exhs. ‘F’, ’15’ and ‘17′), Petitioners admitted having been
paid of their salaries up to June 15, 1958, in spite of the order of the Auditor
General disallowing said payment. In view of the denial of the Commissioner of
Civil Service and the Executive Secretary to reconsider their rulings
disapproving the appointments of the petitioners (except Hon. Ramon Duterte), and of the fact that the Auditor General, since
November, 1957, ordered the suspension and disallowing to pass in audit the
salaries of the petitioners under the appointments extended by then Mayor Sergio
Osmeña, Jr., the present action was
filed.

The petition prayed for judgment
(1) directing the Bureau of Civil Service and the Executive Secretary to approve
the appointments extended by the City Mayor of Cebu in
their favor; (2) enjoining the Secretary of Public Works and Communications and
the Manager of the National Waterworks and Sewerage Authority from exercising
the power of appointment over the personnel of the Osmena Waterworks System; (3) ordering the Auditor General
and the City Auditor of Cebu to approve the payment of
their salaries and promotions as authorized by the City Mayor of Cebu; (4) condemning the respondents, jointly and severally,
to pay to the petitioners P200,000.00 as compensatory, moral and exemplary
damages, P25,000.00 as attorney’s fees and also the costs of the suit; and (5)
such other reliefs as the Court may deem just, proper
and equitable, including the issuance of a writ of preliminary mandatory
injunction directing the Auditor General and the City Auditor of Cebu to pay the officers and employees of the Osmeña Waterworks System, pending termination of the case,
their salaries and promotions for services actually rendered, meaning to approve
the payments thereof. Petitioners, however, withdrew in open court their
petition for the issuance of a writ of preliminary mandatory injunction.

In their separate answers, the
respondents asserted in common that the petition states no valid and sufficient
cause of action; that it is in violation of the doctrine of separation of powers
in that it asks the court to intervene with the exercise of executive functions
by the office of the President; and that the trial court is without jurisdiction
to entertain the action it being in effect an appeal from the decision of the
respondent Auditor General promulgated more than one month from the date the
action was filed.

The lower court, after trial,
dismissed the petition, declaring that the power to appoint the officers and
employees of the Osmeña Waterworks System is lodged in
the Secretary of Public Works and Communications by virtue of section 8 of Act
2009 creating the said system, and as expressly provided in paragraph 2, section
9 of Republic Act 1383 creating the National Waterworks and Sewerage
Administration. The court further stated:

“It is urged by the petitioners
that, upon humanitarian considerations, the petitioners who have religiously
performed their respective tasks and rendered satisfactory service to the
inhabitants of the City of Cebu deserve lenient consideration
and regard for which reason they should be paid for their services. As a matter
of justice and equity, the Court is of the view that the first 55 named
petitioners who have been appointed officers and employees of the Osmena Waterworks System by virtue of the appointments made
by the Secretary of Public Works and Communications, duly approved, be paid of
their salaries according to the rates therein authorized. With respect to the 12
last named petitioners, namely: (1) Jorge Duterte, (2)
Epifanio Aban, (3) Diosdado Abangan, (4) Julian Antiporta, (5) Bonifacio Cabellon, (6) Catalino Cardiente, (7) Vicente Durano, (8)
Isidro Godinez, (9) Artemio
LucenOj (10) Maximo Robles,
(11) Aurelio Samson, and (12) Ricardo Zabala, who were
appointed by the Mayor of the City of Cebu, they
should also be paid by the City of Cebu their services
actually rendered on the basis of the Minimum Wage Law up to the time they have
been duly advised of the rulings of the Commissioner of Civil Service and the
Executive Secretary disapproving their appointments. However, the City of
Cebu, not being made a party hereto,
cannot be reached by the effect of this pronouncement.

“On the other hand, it is also
urged by the respondents upon this Court, in their counter petition, to grant
injunctive reliefs: ordering the City Mayor of Cebu and other city officers concerned to turn over without
further delay the administration, control and supervision and jurisdiction of
the Osmeña Waterworks System to the National
Waterworks and Sewerage Authority; to desist from further interfering with the
affairs of the said system constituting acts of administration, jurisdiction,
supervision and control thereof; prohibiting the Mayor of the City of Cebu from further exercising the power of appointment over
the officers and employees of the Osmena Waterworks
System, and from further disturbing the civil service status of the officers and
employees thereof; and ordering the restoration to the Office of those officers
and employees of the Osmeña Waterworks System who were
unlawfully ousted, including Mr. Timoteo Y. Omay, Superintendent of the said System. The Court believes,
however, that what is substantially asked by the
respondents are matters which are incidental to and necessarily involved in that
case now on appeal before the Supreme Court, and for that reason, it cannot
entertain the same.”

Failing in their motion for the
reconsideration of the decision, the petitioners have appealed.

The Manager of the NAWASA, one of
the respondents, also appealed, but only that portion of the decision where the
court refused to entertain respondents’ counter-petition for an order to have
the administration, control and supervision and jurisdiction of the Osmeña Waterworks System transferred to the NAWASA, while
the case City of Cebu v. The National Waterworks
and Sewerage Authority, G. R. No. L-12892, was
pending before this Court, It is needless to pass upon the appeal interposed by
the said respondent as the case aforementioned was already decided by us on
Decwmber 29, 1960. Declaring the Osmena Waterworks System to be a patrimonial property of the
City of Cebu, in that decision, we reaffirmed
our previous declaration in City of Baguio v.
NAWASA, G. R. No. L-12032, August 31,
1959, of the unconstitutionality of
Republic Act 1383, creating the NAWASA, insofar as it expropriates the
waterworks systems in the various cities without providing for an effective
payment of just compensation. Our ruling in these cases was
clarified in the case of Municipality of Carlota v. NAWASA, G. R. No.
L-20232, December 29,
1964
where it was held that jurisdiction, supervision and control of waterworks owned
by the city may not be vested in the NAWASA without destroying the integrity of
the city’s right of dominion.

Petitioners’ appeal hinges on
this lone question: Who is the official vested by law with the power of
appointment over the officers and employees of the Osmeña Waterworks System? Petitioner’s contention that the
Mayor of the City of Cebu possesses the power in question
is based on section 1916 of the Revised Administrative Code, which reads, in
part:

“In their respective districts,
district engineers shall operate and maintain all municipal and provincial
waterworks in accordance with the general regulations jointly issued by the
Secretary of Interior and the Director of Public Works, and superintendents of
waterworks, inspectors, plumbers, pump engineers, and all other employees as may
be necessary for the proper operation and maintenance of these systems shall be
under his direct supervision. Employees of the systems owned or administered by
the province shall be appointed by him with the advice and consent of the
provincial board and those of the mayor in accordance with section twenty one
hundred and ninety nine as amended of the Administrative Code upon
recommendation of the district engineer.”

and section 21 of the Charter of the
City of Cebu, Commonwealth Act 58, which
states that “the Mayor shall appoint all other officers and employees of the
city whose appointment is not otherwise provided for by law.”

The above contention deserves
scant consideration. The cited provision of the administrative code clearly
refers to waterworks owned or administered by provinces and municipalities and
does not include chartered cities, And the power of the city mayor under section
21 of the Cebu City charter applies only if the
appointment is not otherwise provided by law. Section 30,
Article IV of the City Charter of Cebu states that the
City Engineer shall have the care and custody of the public system of waterworks
and sewers, and all sources of water supply. In relation to the duties
and functions of City Engineers in all chartered cities, Commonwealth Act 424
states:

“The City engineers of chartered
cities shall be under the supervision and control of the Director of Public
Works.

“The assistant engineers,
superintendents and other employees as are from time to time provided for in
appropriation ordinances of the city shall be appointed in accordance with
existing laws governing the appointment of civil engineers, assistant civil
engineers, and other personnel in the various engineering districts of the
Bureau of Public Works in the provinces.” (underlining
supplied)

In Enrique
Morales v. City Engineer of the City of Cavite, G. R.
No. L-11665,
December 29, 1960, where the power to appoint the employees of the Cavite Waterworks System was put at issue, this Court, thru
Justice Dizon, has expressed the opinion that Section
79(d) of the Revised Administrative Code is the provision referred to in the
above quotation (underlined portions) governing the appointment of personnel in
the engineering districts of the Bureau of Public Works. Said section says:

“The Department Head, upon the
recommendation of the Chief of the bureau or office concerned, shall appoint all
subordinate officers and employees whose appointment is
not expressly vested by law in the President of the
Philippines, and may remove or punish them,
except as especially provided otherwise, in accordance with the Civil Service
Law. x x x

“The Department Head also may,
from time to time, in the interest of the service, change the distribution among
the several bureaus and offices of his Department of the employees or
subordinates authorized by law.”

The conclusion was thus reached
in that case that the power to appoint officers and employees of the Cavite Waterworks System is lodged in the Secretary of
Public Works and Comniunications.

Since, by virtue of section 8,
Act 2009, the law creating the Osmena Waterworks
System, “the Director of Public Works of the Philippines shall have exclusive
charge and control of all work to be done and improvements to be made” under the
said Act, and in view of the similarity in the provision of the charters of the
cities of Cavite and Cebu
regarding their Engineering Departments, We see no reason to deviate from the
ruling laid down in the Cavite Waterworks case,
supra.

It is noteworthy that previous to
the questioned appointments made by the Mayor of the City of
Cebu to employees of the Osmeña Waterworks System in 1956, the City had recognized
and acquiesced to the appointments extended by the Secretary of Public Works and
Communications to such employees who were then receiving their salaries as
authorized in said appointments.

In conclusion, We declare that it is the Secretary of Public Works and
Communication who is empowered to appoint the officers and employees of the
Osmeña Waterworks System. In this respect, and the
declaration Chat the petitioners employees of the Osmeña Waterworks are entitled to salaries for services
rendered (a) for those appointed by the Secretary of Public Works and
Communications, at the rates therein authorized; and (b) for those appointed by
the City Mayor, on the basis of the Minimum Wage Law, up to the time they have
been duly advised of the disapproval of their appointments, We are affirming the
decision of the lower court.

In conformity with the ruling
laid down in a line of decisions where payment of back salaries to city
employees was ordered although the city had not been made a party therein, We
consider the City of Cebu a party in this action and,
at this instance, liable for the payment of salaries of the Osmeña Waterworks for services actually rendered.

WHEREFORE, with the only modification that
the City of Cebu is thus ordered to pay what is
due the employees of the Osmeña Waterworks System, in
accordance with the above pronouncement, the decision is hereby affirmed. No
pronouncement as to costs.

Concepcion, C.J., Reyes, J. B. L., Barrera, Dizon, Makalintal, Bengzon, J. P., Zaldivar, Sanchez,
and Ruiz Castro, JJ., concur.

^[1] See
Mission v. Del Rosario, 30 O.G. 1571;
Abella v. Rodriguez, 50 O.G. 3090; Uy v. Rodriguez, 50 O.G. 3574; Briones v. Osmena, G.R. L-12536,
Sept. 14,
1958;
Covacha v. Amante, G.R.
L-8387, May 25,
1956;
Meneses v. Lacson, G.R.
L-7025, October 31,
1955; and
others. In the case of Mangubat v.
Osmefia, G.R. No. L-12837, April 30,
1959,
this Court stated:

“It is our considered opinion,
therefore that the ends of justice and equity would be served best if the
inclusion of the City of Cebu, as one of the
respondents herein, were considered a mere formality and deemed effected, as if
a formal amendment of the pleading had been made.”