ANTERO CANONIGO, FRANCISCO ARTAJO, AND BEATA MORILAO, PETITIONERS-APPELLEES, VS. HILARION RAMIRO, IMMEDIATE PAST CITY MAYOR; IMMEDIATE PAST MUNICIPAL BOARD, PRESIDED BY THEN VIC…

Appeal on pure questions of law from the decision of the Court of
first Instance of Misamis Occidental in its Special
Civil Case No. 2288 (for mandamus with preliminary mandatory
injunction), ordering therein respondents (herein appellants) Municipal Board
and Officials
of Ozamiz
City to pay back salaries to therein petitioners (herein appellees)
Antero Canonigo, Beata Morilao and Francisco Artajo,
and to reinstate the last named petitioner to the office previously held by him before
the termination of his services occasioned by the abolition of the said office by the Municipal Board
referred to.

The antecedent facts, as
set forth in the pertinent portions
of the decision of the court a
quo appealed from are as follows:

“On August 10, 1960,
Antero Canonigo, Beata Morilao and Francisco Artajo filed this petition for mandamus with
preliminary injunction against the respondents officials
of the City of Ozamiz praying
that they be reinstated to the
position of field clerks and market inspector in the office of the City
Treasurer.  On January 18, 1961, the petition was amended to in­clude moral
and exemplary damages in the action.  On September 11, 1965, the petition was further
amended to include the present City Officials and the City Government in view of the
elections held in the year 1963.

“From the admissions of the parties in their pleadings, the Court gathers that Antero Canonigo was,
on July 1, 1959, appointed
by then City Mayor Angel Medina, field clerk
in the office of the City Treasurer with compensation at the rate of P1,440.00 per annum, effective July 1,
1959.  As Canonigo is a civil service eligible, his previous probational appointment was made permanent. 
This appointment was duly approved by the Commissioner of Civil
Service.  On September 1, 1959, Mr. Canonigo
was extended a promotional appointment
to same position
with an increase in salary from P1,440.00 to
P1,500.00 per
annum.  This appointment was likewise
approved by the Commissioner of Civil Service.

“On
August 17, 1959,
then Mayor Angel Medina appointed Beata Morilao as regular field clerk in the office of the City Treasurer with
compensation at the rate of P1,440.00 per an­num,
effective August 24, 1959.  As Morilao is also
a civil service eligible, her appointment was duly approved by the Commissioner
of Civil Service.

“On September 1, 1959,
then Mayor Angel Medina appointed Francisco Artajo as
market inspector in the office of the City Treasurer with compensation at the rate of P1,800.00
per annum, effective September
1, 1959.  This was an
increase in salary from P1,560.00.  Although the eligibility of Artajo was that of patrolman, the Commissioner of Civil Service approved his appointment as
such market inspector. Apparently, the Commissioner of Civil Service considered
his patrolman eligibility applicable to the position of market inspector.

“In the general elections of 1959, Mayor Angel Medina was
defeated by Mayor Hilarion A. Ramiro.  Upon Assumption of office, Mayor Ramiro,
through his Secretary, sent on January
4, 1960, similarly worded letters each to Antero Canonigo, Beata
Morilao and Francisco Artajo,
which read:

‘In line with the policy of the new administration and in order to
give a free hand to the undersigned, you are required to tender your courtesy
resignation today, January 4, 1960.’

“As the above three persons did not resign, respondent City
Treasurer Maximo Lago, on
February 4, 1960, sent each to Antero Canonigo, Beata Morilao and Francisco Artajo
similarly worded letters which read:

‘In the official conversation made by me and the Honorable the City
Mayor of Ozamiz City, he touched on the subject of
the resignation which you promised to tender since the time of your conference,
but until this writing you still have failed to do so.

‘You are, therefore, requested to act immediately on your promise
so that the gentlemen’s agreement will
be fulfilled.

‘Please answer this letter as
early as possible so that the Honorable the City Mayor will be informed about
it.’

“On February 4, 1960,
Beata Morilao wrote to the
City Mayor which reads:

‘In connection with your letter of even date I regret to inform you
that I am not yet in a position to tender my resignation.  As now, I am still looking for a position in
other offices where I can transfer.  As soon as I can find one, will resign immediately.’

“On February 5, 1960,
Antero Canonigo wrote to
the City Treasurer which reads:

‘In reply to your letter dated February 4, 1960, please be informed that I cannot nor
intend to resign because I am the only bread earner of my poor family. 
However, I am looking for another position and should I find one, I
would make up my mind immediately.’

“On May 3, 1960,
the Municipal Board of the City of Ozamiz
passed Resolution No. 282, abolishing the positions of three field clerks and
one market inspector in the office of
the City Treasurer.  On May 5, 1960, Mayor Ramiro sent similarly worded
communications each to Antero Canonigo,
Beata Morilao and Constancia Yting which read:

‘Please be informed that your services as Field Clerk in the
Treasurer’s Office, this City, terminate at the close of business hours today,
May 5, 1960, in view of Resolution No. 282, current series, of the Honorable
Municipal Board, abolishing your position.

‘Please acknowledge receipt hereof.’

“Mayor Ramiro also sent a similarly worded letter to Artajo.  Hence, this
petition filed by Canonigo, Morilao
and Artajo.  Constancia Yting filed a separate
civil action docketed as Special Civil Case No. 2319 of this Court.

“The records further show that during the period from January
13 to July 20, 1960, the Municipal Board created various new positions in the
City Government and appropriated several thousand pesos for improvements and
salaries of officials and employees of the City (Exhibits ‘L’, ‘L-1’ to
‘L-32’).

“Antero Canonigo
has been able to secure an employment as public school teacher from August 1, 1963, up to the present,
while Beata Morilao has
been employed in the City Auditor’s Office effective January 9, 1961.

“Francisco Artajo was unable to secure
any employment up to the present.

“From the above, it is clear that in view of the refusal of
the three civil service eligibles to resign, their respective positions were abolished by the
Municipal Board.  At the time of the
abolition, they were holding permanent appointments.’

Upon the tactual setting thus narrated, the court be­low rendered
judgment on April 12, 1966,
in favor of the petitioners, to
wit:

“WHEREFORE, judgment is hereby rendered ordering the
respondents concerned, to reinstate petitioner Francisco Artajo
to the position of Market Inspector in the office of the City Treasurer previously
held by him before his services were terminated on May 5, 1960, with back salaries.  Likewise, said respondents are further
ordered to pay the back salaries of Antero Canonigo during the period
from May 6, 1960 to
July 31, 1963, and
Beata Morilao from May 6,
1960 to January 8, 1961, all
dates inclusive.

“The prayer for moral and exemplary damages is hereby
dismissed.”

The foregoing judgment is now here assailed on appeal, appellants contending:

“I.       THAT THE LOWER
COURT ERRED IN CONSIDERING THAT THE CITY OF OZAMIZ
CAN BE COMPELLED BY MANDAMUS TO RECREATE POSITIONS WHICH IT HAD ABOLISHED.

“II.      THAT THE LOWER
COURT ERRED IN CONSIDERING THE APPOINTMENTS OF THE
PETITIONERS AS PERMANENT.

“III.     THAT THE LOWER
COURT ERRED IN CONSIDERING ABOLITION OF POSITION A
DIS­MISSAL OR REMOVAL OF AN EMPLOYEE.

“IV.    THAT THE LOWER
COURT ERRED IN CONSIDERING THAT THE ABOLITION OF
THE POSITIONS WAS DONE IN BAD FAITH.

“V.     THAT THE DECISION OF
THE LOWER COURT IS NOT SUPPORTED
BY LAW.”

For a more logical discussion, these assigned errors will be
taken up in a different order.

The position of
appellants under the second assignment of error is that the appointments of appellees
here involved are not permanent but conditional, for the reason that they were all approved by the
Commissioner of Civil Service “subject to the availability of funds”. 
We find no merit in this
claim. Appellees having served the government already for a long period of time under their respective appointments,
the condition adverted to cannot now
affect-the nature of said
appointments which, as found by the trial court upon the evidence, are
permanent.  Indeed, viewed as a condition
precedent, the clause or proviso “subject to the availability of
funds” has long ceased to have any significance.  Neither is it effective as a condition
subsequent attached to the appointments in this case every appointment to a
position in the civil service presupposes the existence of a
corresponding item or fund in the budget – be it national,
provincial, city or municipal -from
which the salary of the appointee is to be drawn; and considering that at the
time the services of herein appellees were
terminated, the fiscal year in
which their appointments were extended had not ended, it may not be validly
argued that the funds for their positions were then no longer available.  Moreover, it may be stated by way of a general
proposition that all appointments in the civil service may be deemed subject to
such condition subsequent; and
to follow herein appellants’
line of reasoning would make all appointments in the civil service conditional forever, never to acquire the status of permanence.

We agree with appellants,
of course, in their conten­tion under the third assignment of error, that
there should be a distinction between removal from an office, on the one hand,
and abolition of the office itself, on the other.  A removal implies that the office from which
an employee had been ousted before the expiration of his term subsists
after the ouster, unlike in the
case of abolition of an office
which necessarily extinguishes the right
thereto of its incumbent by
reason of the consequent non­existence of the office that had been
abolished.  In the latter case, the
constitutional mandate to the
effect that “no officer or employee in the civil service shall be re­moved
or suspended except for cause as
provided by law” is not in point, for there is neither removal nor
suspension of the incumbent but an abolition of his former office.^[1] Be that as it may, We
are constrained to hold, under the circumstances of this case, that the ouster
of herein appellees, while appearing to have been
occasioned by the abolition of their posts, in reality constitutes removal from office. 
The power to abolish an office is not absolute; it is subject to the limitation that the same
be exercised in good faith in order to be valid.

“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).”^[2]

This brings us to herein appellants’ fourth assigned error that
the lower court erred in considering that the abolition of appellees‘ positions was
done in bad faith. We really cannot see our way clear to why the appellant city
officials concerned, barely three (3) days after assumption in office, should require such minor employees of the city as appellees, to tender their “courtesy resignations” for the alleged
purpose of giving the new administration
“a free hand”.  And apropos to
this inquiry is the seeming
persistence with which said appellants
required appellees to resign their positions,
it appearing that the same subject
matter was subsequently brought out again
in a conference between them, and then followed with a letter-reminder
of the former city treasurer.  We are
satisfied that these circumstances, coupled with the finding of the court below that soon after the
abolition of the positions in question
“the Municipal Board created various
new posi­tions in the City Government and appropriated several thousand pesos for
improvements and salaries of officials and employees,” do not
bespeak of good faith on the part of appellants.

Appellants ask under the first assignment of error the following
question:  Can the City of Ozamiz be compelled by mandamus to
recreate positions which it had abolished?
They take the negative side of the question and come up with the following argument:

“It is very clear that the proceeding for mandamus applies only to compel performance of a ministerial act.  The duty must be clear and
specific.  It does not apply to control or review nor mal exercise of judgment or
discretion.  In this case the act of creating positions or abolishing them which it has created involves the exercise of power and
discretion.  And to recreate a
position already abolished also requires sound discretion to do so. 
Therefore, the City of Ozamiz
cannot be compiled to restore the petitioners’ item in the budget.”

The above argument, while quite logical is off tangent in this case. 
It is not applicable here
where, as We have earlier intimated, the
attempted abolition of the offices of
appellees by appellants, is null, void and
without legal effect.  In legal contemplation then, the said offices
still exist, and mandamus is a
proper remedy to compel herein appellants not only to make the necessary appropriations needed for the reimbursement of the salaries of appellees who have in the meanwhile found other employment
corresponding to the period from their dismissal
to the date of such new employment but
also to reinstate one of said appellees who had not been reemployed since his
separation from the service.

“We, therefore, declare, and so hold, that the abolition of
the positions of the petitioners x x x pursuant to resolution
No. 598 which was approved by
the respondents x x
x x, is
illegal.  We hold that the respondents
have unlawfully excluded the petitioners from the enjoyment of a right or office to which they are
entitled.  We finally hold that in
failing to include item or items in the 1964-1965 annual budget for the
province of Pangasinan, and/or refusing to approve a
supplemental budget for the fiscal year 1964-1965 including item or items, to
cover appropriations for the salaries of the petitioners, the 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
foregoing, the writ of mandamus prayed for by the petitioners should be,
as it is hereby granted.  The
respondents, as members of the provincial board of Pangasinan,
are commanded to appropriate, without unnecessary delay, the amounts necessary
for the salaries of petitioners, as stated in this decision, for the fiscal
year 1964-1965 and for the fiscal years thereafter, x x x together with such amounts as may be
neces­sary to pay the contribution of the province of Pangasinan to the GSIS in connection with the insurance
and retirement privileges of the petitioners.  No costs.”^[3]

Applying the principle
enunciated in the above-cited cases, it
is clear that mandamus is proper in this case.

Finally,
We find
no merit in herein appellant Ozamiz City‘s claim that only the appellant officials (excluding it) should be held
liable.  We have already held
in a number of cases that
municipal corporations may be held
liable for the back pay or wages of employees or laborers
illegally separated from the service, including those in­volving primarily
governmental functions, such as those of policemen.^[4] On the authority
also of these cases, We rule out appellants’
pretense that there is no law
authorizing the payment of back salaries to employees whose positions have been
abolished under circumstances similar to those here present.

WHEREFORE, the decision appealed from is affirmed.  No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, and Teehankee, JJ., concur.

^[1]
Manalang vs.
Quitoriano, et al., 94 Phil. 903. 907.

^[2]
Cruz, et al. vs. Primicias, Jr., etc., et al., L-28573, June 13, 1968, 23 SCRA 998, 1003.

^[3]
Ocampo, et al. vs. Duque,
et al., L-23812, April 23, 1966, 16 SCRA 962, 977.  See also Cruz, et al. vs. Primicias, Jr., etc., et al., supra.

^[4]
See Guillergan, et al. vs. Ganzon, etc., et al., L-20818, May 25, 1966, 17 SCRA 257, 260, citing Mission vs. Del Rosario, 50 Off. Gaz., 1571; Abella vs. Rodriguez, 50 Off. Gaz. 3039; Uy vs. Rodriguez, 50 Off. Gaz. 3574; People vs.
Bautista, 50 Off. Gaz. 5286; Faunillan vs. Del Rosario, 52 Off. Gaz.,
5815; Gacho vs. Osmeña,
L-10989; May 28, 1958; Briones vs. Osmeña, L-12536, September
24, 1958; Noromor vs. The Municipality of Oras,
L-18637, February 28, 1963; Cuñado vs. Gamus, and Vale­cera
vs. Gamus, L-16782-83, May 30, 1964; Urgelio vs. Osmeña,
L-14908, February 28, 1964; Tañada vs. Legaspi, L-22537, March 31, 1965; and Gabutas vs. Castellanes, L-17323, June 23, 1965.