MERCEDES DE LA MAZA, PETITIONER, VS. MARCELO OCHAVE, IN HIS CAPACITY AS MAYOR OF ALAMINOS, PANGASINAN, RESPONDENT.

This is a petition to review a decision of the Court of Appeals.

The facts of the case, narrated in the appealed decision, are as
follows:

In July, 1959, the petitioner, Mercedes de la Maza,
was extended a probationary appointment as clerk in the Municipal Treasurer’s
office of Alaminos Pangasinan,
with salary at P1,080 per annum.  Upon receipt of her appointment, she
immediately reported for work and said appointment was made permanent by the
Commissioner of Civil Service, effective on July 1, 1959.

On January 5, 1960, an incident of name-calling, or an
altercation, took place between petitioner and her co-employees during office
hours, in the municipal building of Alaminos, and
within the public view, the details of which are debated.  While petitioner’s co-employees said she was
at fault, she claimed innocence upon being required to give her version.

In a letter of resignation with a date made to appear as January
29, 1960, the petitioner addressed the municipal mayor of Alaminos,
to wit:

“I have the honor to tender my resignation as Clerk, Office of
the Municipal Treasurer, this municipality, effective January 29, 1960, at the close of office hours.

“I wish to state at this juncture, my heartfelt gratitude to
your administration; to all municipal officials, and to my co-workers for the
very kind cooperation we have had during my stay in your office.

“Reiterating my grateful thanks, I am

“Very truly yours,

“(Sgd.)
(Mrs.) MERCEDES DE LA MAZA

“APPROVED:

“(Sgd.)
MARCELO OCHAVE

Mayor

The date “January 29, 1960”
appears, however, to have been merely superimposed over another typewritten
date that had been erased.^[1]

Subsequently, or on March 7, 1960, the Municipal Council
abolished petitioner’s position, in the view that her resignation resulted in a
vacancy.  As a result of this abolition,
petitioner, on April 7, 1960,
filed an administrative case against Mayor Marcelo Ochave,
on the grounds of maladministration, oppression and political persecution.  This was investigated but there is no showing
that it has been terminated.

On May 27, 1961,
the petitioner filed with the Court of First Instance of Pangasinan
a petition to compel payment of her salaries, alleging that she had not been
able to collect her salary from February 1 to 15, and from March 5, 1960 and thereafter.  (She was on leave without
pay in the interval from February 16 to March 3, 1960.)

In answer to the petition, respondent mayor alleged that
petitioner had other administrative remedies to pursue, as, in fact, one was
still pending; that petitioner had resigned on January 29, 1960; that her
position had been abolished; and that since more than one year had elapsed from
the time she was excluded from office she had virtually abandoned it.

The court a quo dismissed the petition holding that
since petitioner had allowed more than one year to pass before filing her
action, it can no longer be entertained under the authority of the Unabia v. Mayor case, 99Phil.,
253.

Petitioner then appealed to the Court of Appeals which court
upheld the trial court’s ruling. 
Whereupon, the petitioner elevated the case to Us
for review.

At the outset, it is to be made clear that while Petitioner’s
action appears to be an action to compel payment of salaries, the determinative
question is the legality or illegality of her removal from her position in the office
of the Municipal Treasurer of Alaminos.

It has been repeatedly held that any person claim­ing right to a
position in the civil service should also be required to file his petition for
reinstatement within the period of one year, otherwise, he is thereby
considered as having abandoned his office.^[2]
This is in line with the rule fixing the period of one year within which
actions for quo warranto may be instituted.^[3]
The petitioner here filed her petition as late as May 27, 1961, more than a
year after the abolition of her position on March 7, 1960, which date is, at
the latest, the effectivity date of her removal.

There is no doubt that the Municipal Council has the power to
abolish the position in dispute, for the principle is settled that the power to
create an office includes the power to abolish it, unless there are constitutional
or statutory rules expressly or impliedly providing otherwise.^[4] A
recognized exception to the valid exercise of such power is when the abolition
of an office is done in bad faith, as when the purpose is to discharge the
incumbent in violation of the civil service.^[5]

It is difficult to see how bad faith could have been the basis of, or an element in, the abolition of the position in
question.  Firstly, it was effected after the petitioner had filed her letter of
resignation.  Secondly, there is no
showing that another position was created and that another individual has been
appointed to occupy that position. 
Besides, it appears that the questioned abolition came about upon an indorsement from the Treasurer’s office of a letter coming
from the Chief Supervising Treasurer, Local Government Finance Division of the
Department of Finance, advising the Municipal Council of Alaminos,
Pangasinan of an overdraft or excess in the amount of
P854.30 over the maximum amount expendible for
salaries and wages incurred by that municipality in its annual budget for the
current year.

Petitioner contends that the abolition of her posi­tion never
took effect since it was not approved by the Secretary of Finance.  Whether or not the abolition be­came
effective is beside the point, since it seems clear from the facts that as
early as February 1, 1960, petitioner had no longer been recognized as an
employee of the municipal government, because she had not been paid her salary
since then, not by reason of abolition of her position but perhaps by virtue of
her resignation dated January 29, 1960.  In Procopio R. Morales, Jr. v. Patriarca, G. R. No. L-21280, October 21, 1965,
this Court, resolving the motion for reconsideration in that case, made the
following pronouncement:

“x x x A
clear indication that petitioner was deemed removed from said date is the re­fusal
of the Secretary of Justice thereafter to authorize payment of salaries and
emoluments to him in any way as such Justice of the Peace.  Consequently, whether petitioner was
legally or illegally removed, the fact is that he was removed just the same.  Petitioner may have continued discharging the
functions of his of­fice, but the same does not detract from the fact that he
had been dismissed and that said dismissal had been implemented by non-recogni­tion
of his official capacity, and non-payment of salaries.” (Emphasis ours)

Whether we consider her removal as having been effected as of her
resignation or as of the date she was no longer paid her salaries or as of the
abolition of her position, the conclusion is inevitable that petitioner’s
action was not filed within one year from said removal.

IN VIEW HEREOF, the decision under review is hereby affirmed,
without special pronouncement as to costs.

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

^[1]
Respondent explains this in his brief, thus – “[Petitioner] went
to see the respondent for a conference on January 29, 1960. 
During said conference petitioner, then, pleaded with the respondent not
to file any administrative case against her and she will resign, in order to
protect her civil service eligibility and so as not to blemish her civil
service record.  Instead of writing a new
letter of resignation, she (petitioner) requested for her previous letter of
resignation dated September 30, 1959, and for her to change the date by erasing
the former and superimpose January 29, 1960. 
The respondent asked for the record file of the petitioner and handed
the same to her.”

^[2] Unabia v.
City Mayor of Cebu, Supra; Alipio et al v. Rodriguez, et al., L-17366, Dec. 26,
1963; Morales v. Patriarca Toriano,
L-21280, Oct. 21, 1965; Villaluz v. Zaldivar, et al., L-22754, Dec. 31, 1965.

^[3] Section 16, Rule 66, Rules of Court.

^[4]
Castillo v. Pajo, et al., L-11262, April 28,
1958; Brillo v. Enaje,
50 O.G. 3102; Facundo v. Pabalan,
L-17746 & L-17808 (Ulep v. Leonardo Carbonell, et al.), Jan. 31, 1962.

^[5] Alipio et al v. Rodriguez, et al., supra.