G.R. No. L-20158. July 29, 1968

CANDELARIO ALMENDRAS, TIMOTEO T. OMAY, ET AL., PETITIONERS AND APPELLEES, VS. AMADO DEL ROSARIO, ET AL., RESPONDENTS, AMADO DEL ROSARIO AS COM­MISSIONER OF CIVIL SERVICE, RESPON…

Decisions / Signed Resolutions July 29, 1968 DIZON, J.:
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DIZON, J.:


Appeal taken by the
Commissioner of Civil Service from the decision of the Court of First Instance
of Cebu in Civil Case No. R-7211 holding that the
City Mayor of Cebu is the one vested with power to
appoint the officers
and employees of the Osmeña
Waterworks System; ordering
the Commissioner of Civil Service to attest and
approve the appointments of 175 employees of said System, herein appellees, if they are eligible under the Civil Service
Law, and ordering the City Treasurer and City Auditor of Cebu
to authorize payment to them of their salaries speci­fied in their respective
appointments, but dismissing their claim for damages.

Appellees Candelaria Almendras, Timoteo T. Omay and 173 others were, on July 1, 1961 and subsequent
dates, appointed as officials and employees of the Osmeña
Water­works System by the City Mayor of Cebu (Exhs. “A”, “A-1” to
“A-174”).  Some of the
appointments, promotional in nature, were made by the Secretary of Public Works
and Communications, while the others – original appointments – were signed by
the City Mayor of Cebu like previous appointments
made in 1957.  The appointments issued by
the Secretary were duly approved but those signed by the City Mayor of Cebu were refused approval by the Commissioner of Civil
Service who held the view that the proper appointing power is the Secretary of
Public Works and Communications. 
Thereupon, appellees, who were adversely
affected by said ruling, commenced the present action for mandamus against the
Commissioner of Civil Service to compel him to attest and approve their
appointments (issued by the City Mayor of Cebu), and
against the City Auditor and City Treasurer of Cebu
for them to authorize the payment of their salaries appertaining to their
positions as of the date of their appointments.

Through their counsel,
the parties on
March 14, 1962 submitted to the trial court the following
stipu­lation of facts:

“Both the petitioners and the res­pondents in the
above-entitled case res­pectfully appear, through counsels, and Submit to this Honorable
Court the follow­ing stipulation of facts:

1.  That the authenticity of
the appoint­ments issued by the City Mayor to petitioners, attached to the
records of this case as Annexes A, A-1, A-2, etc., up to A-174 is admitted by
the parties; that some of these appointments are promotional and the rest are
original; that the previous
appointments of those given promotional
appointments in this case were extended by the Secretary of Public Works and
Communications; and that all those appointees of the Secretary of Public Works
and Communications were in 1957 or there about also extended appointments by
the City  Mayor of Cebu,
which appointments so far have been refused attestation or approval by the
Commissioner of
Civil Service
who returned the same to the City Mayor;

2.  That the parties also admit the
authenticity of Annexes A, A-1, A-2, A-3, A-4 and A-5 of this stipulation; but res­pondents aver that Annexes A-2
and A-3 are immaterial, irrelevant and impertinent on the ground that they do not prove any allegation in the
petition and, besides, Annex A-2 is post litem
motam, the same having been issued on December
16, 1961, while this case was filed on September 21, 1961, while this case was
filed on September 21, 1961, self-serving and contains er­roneous conclusions
of law;

3.  That the parties admit
that there is a
pending case in the Supreme Court entitled Ramon Duterte,
et al., Petitioners-Appellants, vs. Florencio Moreno,
et al., Respondents-Appellees, G. R. No. L-15142 on
appeal from the decision handed down by the
Court of First Instance of Cebu in Civil Case
No. R-5520, which decision is hereto attached as Annex B of this stipulation.

“The parties hereby reserve the right to present further
evidence.”

After receiving the
additional evidence of the parties the lower court, on
June 30,
1962
, rendered the
appealed judgment.

On account of the
resignation and transfer to other offices of some of the appellees, new appointments were
issued by the City Mayor of Cebu in favor of other
parties.  As a result, a motion for
substitution of parties filed by the appellees‘
counsel was granted by Us.  Hence, Simplicio
Gabuya, Leonardo Derecho, Jr., Pablo Saceda
and Inocentes Llanto
substituted for Marcelo Gabuya, Milton Abelgas, Arnulfo Aguilar and
Delia Gador, respectively, as petitioners (Appendixes
“A” to “A-3” and “B” to
“B-3”).

The only question to be
determined in this case – whether it is the City Mayor of Cebu,
or
the Secretary of Public Works and Communications who has
the power to appoint the officials and employees of the Osmeña
Water­works System – is not new.

The provisions of the
Charter of the City of Cavite covering appointments of its officers and employees whose
appointment is not otherwise provided for by law, are to the effect that they
shall be appointed by the Mayor, upon recommendation by the corresponding city
department head, in accordance with the Civil
Service
Law.  The Charter of the City of
Cebu contains a similar provision.

In Morales et al. vs. the
City Engineer of the City of
Cavite G. R. No. L-11665, deciding a similar issue,
we said:

 “Appellants’ claim that the Mayor
of Cavite City was the one empowered to appoint the
employees of the Cavite Waterworks System is based on the provisions of Art. IV,
sec. 19, of Commonwealth Act No.
547, commonly known as the Charter of the City of Cavite, which provides that all other officers
and employees
of the City whose appointment is not otherwise provided
for by law, shall be appointed by the Mayor, upon
recommenda­tion of the corresponding city department heads, in
accordance with the Civil Service Law, and may be
suspended or removed only in accordance
with law.  Paragraph (j), section 22,
Article
VI of the same Act, clearly provides, on the other hand, that the City Engineer of Cavite
City shall have the care and custody of the public system of waterworks and
sewerage, while Section 1 of Commonwealth Act No. 424, in relation to the personnel of the engineering departments of
chartered cities, provides that –

‘The assistant engineer, 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.’

“In connection with the legal provisions mentioned above,
Section 79-D of the Revised Administrative Code, which governs the appointment
of civil engineers, assistant civil engineers and other personnel in the
various en­gineering districts under the Bureau of Public Works, provides the
following:

‘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 in the (Governor General) President of the Philippines, and
may remove or punish them except as specifically provided otherwise, in ac­cordance
with the Civil Service Law.  Laborers receiving
compensation at the rate of seven hundred and twenty pesos or less per annum and other employees
receiving com­pensation at the rate of two hundred pesos or less per annum,
shall be appointed and removed by the Chief of the Bureau or Office, subject
only to the general control of the Department Head.

‘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 employee or subordinate author­ized by law.’

“As already stated heretofore, appellees
were appointed by the Under-Secretary of Public Works and Communications.  Morales’ appointment was for Item No. 52 in the approved city Plantilla
of personnel of the Office of the City Engineer, Cavite
City, de la Cruz’ was for Item No. 48, Vicente’s for Item No. 59 and Mendoza’s for Item No. 61.  Since their respective appointments several
years prior to their removal they had rendered apparently satisfactory ser­vice,
and had been paid with funds
appropriated by the City of Cavite.

“It would seem, therefore, that, according to law, the
employees of the Cavite Waterworks System are to be
appointed by the Department of Public Works and Communications; that the City
of Cavite has fully acquiesced to this interpretation
by recognizing appoint­ments made by the Secretary of Public Works and
Communications and paying the salaries due to the appointees; that even while
the present action was pend­ing, in view of the reinstatement of appellees pursuant to the orders of the Director of Public
Works, the City of Cavite and the City Engineer had again acknowledged the
right of the Secretary of Public Works and Communications to appoint the
employees of the Cavite Waterworks System.  The conclusion is, therefore, inescapable
that appellees
were illegally removed from office on
July 26, 1954 and that the order for their reinstatement
issued by the Director of Public Works, in conform­ity with the favorable
recommendation of the Bureau of Civil Service, was in accordance with
law.”

Subsequently, We had
occasion to
decide the case of Ramon Duterte et al. vs. Florencio Moreno as Secretary of Public Works and
Communications, and Susano Negado
as Manager of the National Waterworks and Sewerage Authority
(G. R. No. L-15142).  It
involved the appointment of officers and employees of the Osmeña
Waterworks System
in Cebu City, and
the particular issue submitted for resolution was identical to the one now
before
Us – whether it is the City Mayor of Cebu
or the Secretary of Public Works and Communications who has the authority
to appoint the officers and employees of the Osmeña
Waterworks System.  Resolving the same,
We said:

“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?

“Petitioners’ 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 sup
plied)

“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 en­
gineering
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 or appoint officers and employees of the Cavite
Waterworks System is lodged in the Secretary of Public Works and
Communications.

“Since, by virtue of section 8, Act 2009, the law creating the
Osmeña 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 Com­munications who is empowered to appoint the officers and
employees of the Osmeña
Waterworks System.  In this respect, and
the declaration that 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
dates 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[1]
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 cost”

We deem our decision in
the Duterte
case squarely applicable to the
one at bar.

WHEREFORE, the decision appealed from is reversed and set
aside in so far as (1) it declares the City Mayor of Cebu
vested with power to appoint the
officers and
employees of the Osmeña
waterworks System, and (2) it orders the Commissioner of Civil Service to
attest and approve the
appointments Exhibits A, A-1 to A-174 extended
in favor of appellees by the City Mayor of Cebu.  The same decision, however, is affirmed in
so far as it orders the City Treasurer and City Auditor, both of Cebu City, to pay the salaries of such peti­tioners who have rendered service from the
date of their appointment; except as to
those petitioners appointed by the City Mayor of Cebu,
who
should be
paid their respective
salaries from the date of their
appointment until this decision has become final, unless reappointed by competent
authority with effectivity from the day following the
date of such finality.

Concepcion, C.J., Reyes, JBL, Makalintal, Zaldivar, Sanchez,
Ruiz Castro, Angeles, and Fernando, JJ.,
concur.


[1]
See Mission v. Del. Rosario,
50 O.G. 1571; Abella
v. Rodriguez, 50 O.G. 3090; Uy v.
Rodriguez, 50 O.G. 3574; Briones v.
Osmeña, 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. Osmeña,
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.”