GUILLERMO GONZALES, PETITIONER AND APPELLANT, VS. THE HON. JAIME HERNANDEZ, AS SECRETARY OF FINANCE AND JOVENCIO FOJAS, RESPONDENTS AND APPELLANTS.

Appeal by both petitioner and respondents against a decision of the Court of
First Instance of Manila, Hon. Carmelino G. Alvendia, presiding, in Special
Civil Action No. 37553, entitled “Guillermo Gonzales, petitioner, versus
the Hon. Jaime Hernandez, as Secretary of Finance, and Jovencio Fojas,
respondents.” The dispositive part of said decision is as follows:

“WHEREFORE, the Court hereby declares the appointment of Atty. Jovencio Fojas
as merely temporary in nature. The Court furthermore orders the respondent
Secretary of Finance to terminate the appointment of Atty. Jovencio Fojas and to
reinstate the petitioner Guillermo Gonzales to the position presently occupied
by Atty. Fojas as attorney-agent of the Investigation and Secret Service
Division of the Department of Finance, but without any right to salary until he
is actually reinstated and only from the date of his reinstatement.

“Petitioner is not entitled to recover damages nor attorney’s fees. No
pronouncement as to costs. (Brief for the respondents, p. 8)

On September 16, 1958, petitioner Guillermo Gonzales filed an action for
mandamus and quo warranto with the Court of First Instance of Manila
seeking (a) to compel respondent Secretary of Finance to reinstate him to
his former position as Attorney-Agent in the Department of Finance; (b)
payment of back salaries from May 23, 1955 up to the time of reinstatement,
excluding the salaries for two months of suspension in accordance with the
decision of the Civil Service Board of Appeals; (c) the removal of
respondent Jovencio Fojas as Attorney-Agent in the Department of Finance;
(d) payment of P2,000 as attorney’s fees; and (e) payment of costs
of the suit. Respondents alleged the following special and affirmative defenses:
petitioner’s resignation from his position and his acceptance of another
position in the Government Service Insurance System amounted to an abandonment
of his right to reinstatement; Cabinet Resolution dated July 13, 1937 is
inapplicable to the case at bar; the reinstatement of petitioner violates
Executive Order No. 11 against nepotism because his wife is already employed in
the same Department; and lastly, petitioner has not exhausted all administrative
remedies. They therefore pray for the dismissal of the action.

The case was submitted upon a stipulation of facts, which reads as follows
(unnecessary portions omitted):

“1. That petitioner was appointed in February 1954 an attorney-agent of the
Investigation and Secret Service Division, Department of Finance, but in
Administrative Case No. R-11119 instituted against him, he was found guilty of
disreputable conduct prior to entering the service, and called upon to resign or
be separated for cause as per decision of the Commissioner of Civil Service
dated March 11, 1955;

“2. That on May 23, 1955 petitioner filed with the Department of Finance a
letter of resignation, the pertinent portion of which reads as follows:

‘* * * subject to the result of my appeal with the Civil Service Board of
Appeals, and to the provisions of the Resolution of the Cabinet on July 17,
1937’;

“3. That petitioner’s aforequoted tender resignation was accepted on May 28,
1955 as per a letter of the Undersecretary of Finance;

“4. That petitioner appealed from the decision of the Commissioner of Civil
Service * * * but did not formally notify respondent Secretary of Finance of the
filing or pendency of the said appeal;

“5. That on November 15, 1955 petitioner’s wife Lilia V. Gonzales was
appointed to his former position, * * *. Said appointment automatically became
permanent with six (6) months from and after November 15, 1955;

“6. That on July 1, 1957, petitioner’s wife was promoted as Economist Tax
Researcher of the Department of Finance and respondent Jovencio Fojas, a member
of the Philippine Bar was appointed to the position in turn vacated by her;

“7. That petitioner applied for and accepted an employment as emergency
helper in the Government Service Insurance System at P6 per day and worked as
such from August 6, 1956 until his services were terminated effective on July
24, 1957;

“8. That the Civil Service Board of Appeals, modified the decision of the
Commissioner of Civil Service as per a decision dated August 5, 1957, the
dispositive portion of which reads as follows:

‘In view of the foregoing this Board feels justified in modifying the penalty
imposed by the Commissioner of Civil Service and imposes upon the respondent a
suspension of two months without pay. Considering, however, that this decision
is not an exoneration, it is the feeling of this Board that respondent, once
reinstated to his former position, shall not be entitled to collect his salaries
during the period of his suspension’;

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               *                   *                   *

“9. That the Civil Service Board of Appeals sent a copy of said decision to
the Office of the Secretary of Finance on November 22, 1957;

“10. That petitioner was notified and received a copy of the decision of the
CSBA on January 17, 1958 and that forthwith on the following official day,
January 20, 1958, petitioner went to the Department of Finance and informed in
writing the Secretary of Finance thru the Administrative Officer, Geminiano
Cabangon, Sr., that petitioner is reporting for duty the following day, January
21, 1958, * * *;

“11. That effectively on the following three successive days, i. e., January
21, 22 and 23, 1957, petitioner reported for duty * * *;

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15. That the Commissioner of Civil Service * * *; ruled among others, that
petitioner is entitled as of right and should now be reinstated to his former
position, and with respect to the filling of position by another pending final
decision of his appeal by the CSBA, attention was invited to the Cabinet
Resolution dated July 17, 1937;

“16. That petitioner, in his letter of May 23, 1958 (Annex “E” of the
petition) addressed to the Secretary of Finance, reiterated his request for
reinstatement in view of the ruling made by the Commissioner of Civil
Service;

“17. That in view of petitioner’s request for reinstatement respondent
Secretary of Finance sent a 2nd indorsement dated June 2, 1958 to the Civil
Service Board of Appeals, stating all the reasons why he could not reinstate
petitioner and requesting clarification or an opinion in regards to petitioner’s
case, but the Board has not yet replied to said communication. Petitioner was
furnished a signed copy of said indorsement of June 2, 1958, a true copy of
which is attached as Annex “1” of respondent’s answer.” (pp. 32-35,
record.)

Upon the pleadings and the above stipulation of facts, the lower court
rendered the decision appealed from. It declared that the Undersecretary of
Finance had no right to treat petitioner’s letter of conditional resignation as
an absolute one, and held that the Undersecretary’s unconditional acceptance of
petitioner’s conditional resignation is equivalent to a rejection of said
resignation and petitioner’s position did not become vacant thereby; that
petitioner’s acceptance of an emergency position in the Government Service
Insurance System is not an abandonment of the position in question, as it is not
incompatible with his claim for reinstatement; that the appointment of
respondent Fojas to the position of the petitioner is only temporary in nature,
in accordance with Cabinet Resolution of July 13, 1937; that said Resolution is
applicable to the case at bar, otherwise, in case like this the Secretary of
Finance would have the power to negate the decision of the Civil Service Board
of Appeals by issuing a permanent appointment to another.

From this decision, both the petitioner and the respondents have appealed.
Petitioner appeals from the decision only insofar as it denies him payment of
back salaries, attorney’s fees and costs.

The errors assigned by the Solicitor General may be resolved by determining
the following questions, namely, (a) May the petitioner be considered
validly resigned when his conditional resignation was unconditionally accepted
by the Undersecretary of Finance? (b) Is petitioner deemed to have
abandoned his position by accepting another position of emergency laborer in the
GSIS?

The first question should be resolved in the negative. In the first place,
there is no resignation to speak of, because there was no intention on
plaintiff’s part to relinquish his position as attorney-agent in the Department
of Finance. To constitute a complete and operative act of resignation, the
officer or employee must show a clear intention to relinquish or surrender his
position:

“* * * But to constitute a complete and operative resignation of public
office, there must be an intention to relinquish a part of the term, accompanied
by the act of relinquishment * * *.” (43 Am. Jur. p. 22)

“* * * and a resignation implies an expression by the incumbent in some form,
express or implied of the intention to surrender, renounce, or relinquish the
office, and an acceptance by competent and lawful authority.” (Nome vs.
Rice, 3 Alaska 602) (2 Bouvier’s Law Dictionary, p. 2407)

In the case at bar, plaintiff’s resignation was made expressly “subject to
the result of my appeal to the Civil Service Board of Appeals, and to the
provisions of the Resolution of the Cabinet on July 17, 1937.” The decision of
the Civil Service Board of Appeals modified that of the Commissioner of Civil
Service, ordering plaintiff to be reinstated to his old position. There can not
be any resignation to speak of therefore.

The second question should also be resolved in the negative. Plaintiff’s
position in the GSIS was temporary in nature, during the period of an emergency
only. He had the right to live during the pendency of his appeal and naturally
the right to accept any form of employment. In any case, as the court below
found, this temporary employment is not incompatible with his old position; he
could resign this temporary position any time as soon as his case has been
definitely decided in his favor. To this effect is a previous ruling of the
Court, thus:

“The fact that during the pendency of the petitioner’s appeal in the Civil
Service Board of Appeals, he worked as clerk in the office of the Provincial
Treasurer of Leyte from 2 March 1951 to 17 February 1955 and received the salary
as such in the total sum of P5,509.63 does not constitute abandonment of his
former position. He was ordered to resign from the service with prejudice to
reinstatement pursuant to the decision of the Commissioner of Civil Service and
by virtue thereof was prevented from exercising the functions of his position
and receiving the corresponding compensation therefor. While thus deprived of
his office and emoluments thereunto appertaining the petitioner had to find
means to support himself and his family. The fact that during the time his
appeal was pending and was thus deprived of his office and salary, he sought and
found employment in another branch of the government does not constitute
abandonment of his former position. * * *”. (Tan vs. Gimenez, et al., 107
Phil., 17; Potot vs. Bagano, 82 Phil., 679; 46 Off. Gaz.,
3058).

Another objection against the petition is the fact that his wife is now
employed in the same office. This objection can not lie against petitioner’s
reinstatement; the objection did not exist at the time of his original
appointment. He was already employed before his wife was appointed. The
objection does not lie, therefore, against his reinstatement; if it is to be
applied at all it should be against his wife’s appointment, not against his
own.

We now proceed to discuss the lone assignment of error of the
plaintiff-appellee. Appellee is claiming back salaries, attorney’s fees and
damages. His claim is devoid of merit.

The law which allows payment of back salaries in cases like this is Section
260 of the Revised Administrative Code. A perusal of the decisions of this Court
in cases similar to the case at bar, however, show that back salaries are
ordered paid to an officer or an employee only if he is exonerated of the charge
against him and his suspension or dismissal is found and declared to be illegal.
In the case at bar, plaintiff was not completely exonerated, because although
the decision of the Commissioner of Civil Service was modified and the plaintiff
was allowed to be reinstated, the decision ordered him to forfeit two months pay
and not to be given back salaries.

In a statement filed before Us by counsel for petitioner-appellant, it is
made to appear that respondent Jovencio Fojas is no longer holding the item in
question. This manifestation is not denied by the counsel for the respondents.
However, there is no showing that said item, if already vacated by respondent
Jovencio Fojas, has been given to another, or has been eliminated from the
Appropriations Act. There is, therefore, no impediment to petitioner’s
reinstatement.

Wherefore, the decision appealed from is hereby affirmed in toto,
without costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Paredes,
Dizon, De Leon, and Natividad, JJ., concur.