ALBERTO FERNANDEZ AND RICARDO DE GUZMAN, PETITIONERS AND APPELLEES, VS. PABLO CUNETA, IN HIS CAPACITY AS MAYOR, PASAY CITY, CEFERINO FUENTES, IN HIS CAPACITY AS TREASURER OF PAS…

This is an appeal from a decision of the Court of First Instance of
Rizal, Pasay City Branch, the dispositive part of which is as follows:

“In
View of the Foregoing, the Court hereby renders judgment ordering
respondent Mayor to reinstate petitioners to their positions as helpers
in the Office of the Civil Defense and Disaster Organization of Pasay
City and to pay petitioners’ salaries accruing from February 3, 1956
until their actual reinstatement. All respondents are ordered to pay
the costs.”

Although respondents appealed
from said decision to the Court of Appeals, the latter certified the
case to us upon the ground that the findings of fact made by the lower
court are not disputed in appellants’ brief and that the issues therein
raised are purely legal in nature.

It appears that on
December 1, 1955, petitioners, Alberto Fernandez and Ricardo de Guzman,
were appointed by the Acting Mayor of Pasay City, and assumed their
duties, as “helpers” in the Office of the Civil Defense and Disaster
Organization of said City. On or about February 1, 1956, they received
the letter, Exhibit D, signed by Lorenzo S. Ramos, Secretary of the
City Mayor, enclosing therewith copy of an opinion of a Special
Attorney of Pasay City—to the effect that Ordinance No. 27, series of
1954, creating said positions of “helpers” under which petitioners were
appointed, had never received the approval of the Secretary of Finance,
which was necessary under the city charter (Republic Act No. 183,
Section 16 [c]), that there were, therefore, no positions to which
petitioners could be appointed on December 1, 1955, and that their
appointments were, accordingly, null and void—and advising petitioners
that said letter served “as notice of separation from the service.”
Inasmuch as petitioners questioned the authority of the writer of
Exhibit D to oust them from office, the stand taken therein was
reiterated in the communication Exhibit F, dated February 3, 1956—which
was seemingly received by petitioners on February 9, 1956—signed by Mr.
Ramos “By authority of the Mayor”. Thereupon, petitioners instituted
the present action for mandamus against the City Mayor, the City
Treasurer and the City Auditor of Pasay City, with the prayer that:

“*
* * the petitioners be allowed to proceed with this suit as pauper
litigants and that judgment be issued (1) ordering the reinstatement of
the petitioners with backpay from the date of their illegal ouster on
Feb. 3rd, 1956, until reinstatement, (2) ordering the payment of their
salaries for actual services rendered by them from January 1, to Feb.
3rd, 1956, (3) ordering the respondent City Mayor to pay moral and
exemplary damages to the petitioners in such amounts as this Honorable
Court may decide, (4) in the interest of the public, by ordering the
Pasay City Treasurer and the Pasay City Auditor to stop or refrain from
authorizing the payment of the salaries of the two new incumbents who
replaced the petitioners, and (5) to grant such other relief as in this
instance, is just and equitable in the premises.”

In their amended answer, respondents alleged substantially, that the
appointments of petitioners herein were null and void from the very
beginning, for said respondents “were not aware of the fact that
Resolution No. 27, series of 1954”, under which the aforementioned
appointments were extended, had ever been approved by the department
head concerned, as required in the city charter, and that petitioners’
appointments were subject to certain conditions which had not been
complied with.

In due course, the Court of First Instance of
Rizal, Pasay City Branch, rendered the aforementioned decision in favor
of petitioners herein. Hence, this appeal by respondents, who maintain
that:

“1. The Honorable trial court erred
in not finding that the ‘last-hour’ appointment extended by Acting
Mayor Jose Milan in favor of the petitioners-appellees were immoral if
not illegal; and inimical to the modern concept of more autonomy in the
administration of local government;

“2. That considering
the peculiar circumstances of this case, the Honorable Court erred in
holding that the ‘probationary’ appointment of the appellees were
‘permanent’;

“3. That arguendo that the appellees’
appointments were probationary and became absolute and permanent only
after the conditions set forth in their appointments were complied
with, yet the Honorable trial court erred in not finding that, as for
the date of the trial, the1 said appellees have not done anything to
qualify themselves to the positions;

“4. That the Honorable Court erred in denying the petition for new trial filed by the respondent city mayor;

“5. That considering that the appointments of Jose Rodriguez and Cirilo
Decena have been approved by both the Commissioner of Civil Service,
and by the Office of the President, the trial court erred in not ruling
that the appellees’ remedy under the circumstances is not mandamus but
‘quo warranto’;

“6. That the court a quo erred in finding
that the appellees had exhausted all plain, adequate and complete
remedy in the ordinary course of law;

“7. That considering
the facts and circumstances of this case, and again arguendo that the
appellees’ termination of service were illegal, yet the Honorable Court
erred in holding the respondent city mayor liable for the back salaries
of the appellees.”

In its first assignment
of error, respondents maintain that the Acting Mayor of Pasay City had
acted in bad faith in appointing petitioners herein, on December 1,
1955, the party then in power in said city having allegedly lost in the
elections held shortly before said date. This is, however, irrelevant
to the issue in the case at bar, which hinges on the legality of
petitioners’ appointments, not upon the intent of the officer who made
the same. Respondents branded those appointments as null and void for
alleged lack of the requisite departmental approval of the ordinance
creating the positions held by petitioners. However, the lower court
found that the Secretary of Finance had approved on October 11, 1955,
not only said ordinance, but, also, the appropriation for said
positions. Hence, respondents have given up the theory pursuant to
which petitioners were originally separated from the service.

Respondents now allege, in their second assignment of error, that said
appointments were probationary in nature; that instead of performing
manual labor, as required in their appointments, petitioners engaged
themselves in clerical jobs, falling within the classified service, in
violation of the civil service rules and regulations and of one of the
conditions under which said appointments were approved by the Office of
the President; and that being on probation, petitioners may be removed
upon notice in writing, without any hearing.

This pretense
is absolutely devoid of merit. To begin with, the appointments in
question (Exhibits A and B) appear, on their face, to be permanent in
nature. Secondly, under the Civil Service Act of 1959 (Republic Act No.
2260), appointments may be either permanent, provisional or temporary
(section 24). “Probationary” appointments do not exist under said Act.
Subdivision [6] of section 24 thereof, dealing with “permanent”
appointments, provides, however:

“A
permanent appointment shall be issued to a person who has met all the
requirements- of the position to which he seeks appointment in
accordance with the provisions of this Act and the rules and standards
promulgated in pursuance thereto. All such persons must serve a
probationary period of six months following their original appointment
and shall undergo a thorough character investigation in order to
acquire permanent civil service status. A probationer may be dropped
from the service for unsatisfactory conduct or want of capacity any
time before the expiration of the probationary period: Provided, That such action is appealable to the Commissioner of Civil Service under section sixteen, paragraph (j) of this Act.”

Pursuant thereto, “permanent” appointees “must serve a probationary period
of six months following their original appointments.” Although on
probation, such appointees may not be removed at pleasure. They may not
be dropped from the service, except “for unsatisfactory conduct or want
of capacity at any time before the expiration of the probationary
period.” In other words, one of these two (2) causes must exist for
their valid dismissal, and when the law fixes the causes thereof, it is
understood that the officer or employee concerned must be given an
opportunity to contest its existence. In other words, there must be
notice and hearing. And this right is bolstered up by the proviso in
the above quoted provision granting the right to appeal to the
Commissioner of Civil Service.

Thirdly, respondents cannot
invoke Republic Act No. 2260 to justify the removal of petitioners
herein, and to assign them a “probationary” status under said Act, the
latter having been approved on June 18, 1959, or almost three (3) years
and a half after said removal.

At any rate, petitioners’
dismissal was predicated, not upon their probationary status, which is
not a fact, but upon the theory that their appointments were void on
account of the alleged inexistence of their positions, and it is now
admitted that the same have been legally created. Hence, their removal
from office, without cause and without previous notice and hearing, is
patently contrary, not only to our civil service law, but, also to the
Constitution.

The petitioners’ qualifications for
reinstatement are assailed in the third assignment of error, upon the
ground of breach of two (2) conditions imposed by the Office of the
President in approving their appointments, namely, that said
appointments are “subject to the usual physical and medical
examination” and that the “main duties” of the appointees “are those of
manual labor”. Respondents say that petitioners have not submitted
themselves to said “physical and medical examination” and that they
have engaged in clerical work, which is, also, a violation of section
685 of the Revised Administrative Code.

It appears, however,
that petitioners were not aware of the aforementioned conditions.
Seemingly, when their appointments were returned to the office of the
city mayor, after the approval thereof by the Office of the President,
the change of local administration had already taken place, and the new
administration gave petitioners no chance to comply with said
conditions. As stated in the decision appealed from:

“The
respondents further contend that, on the assumption that the Civil
Defense Office was legally created by Ordinance No. 27, series of 1954,
yet, the petitioners have not complied with the conditions in their
appointments by submitting themselves to the usual physical and medical
examination and they have not been performing duties which are not
those of manual labor. The petitioners admit that they have not
submitted themselves to the usual physical and medical examination
required in their appointments to make the same permanent but they
claim that they did not know of the conditions appearing in their
appointments because the originals thereof have not been delivered to
them by the Office of the Mayor despite their demand to do so. The
evidence of the petitioners to the effect that their original
appointments were never delivered to them have not been denied by the
respondents. The failure of the petitioners to comply with the
conditions respecting their submission to the usual physical and
medical examination is not therefore due to petitioners’ fault but to
the failure of the Office of the Mayor to deliver to them their
appointments before they were separated from office on February 1,
1956.”

With respect to the type of work to
be undertaken by petitioners, the condition imposed by the President is
that their main duties be manual. In other words, they were not
prohibited from doing clerical work, provided that their principal
function was manual. Moreover, said section 685 of the Revised
Administrative Code provides:

“Limitation on employment of person in unclassified service.—
A person appointed to a position in the unclassified service shall not
be employed in any position in the classified service nor shall he be
allowed to do clerical duties other than such as may pertain to the
office to which he was appointed.”

The
prohibition therein contained is addressed to the appointing power or
the superior officer, not to the subordinate employee who generally
feels bound to do whatever work the former may assign to him, and who
should not be punished, therefor, for his obedience. Again, said
prohibition. does not extend to all clerical work, but is limited to
“clerical duties other that such as may pertain to the office to which” the employee concerned “was appointed.”
There is nothing in the record before us, and it is not even claimed by
respondents, that the clerical work allegedly done by petitioners is
“other than such as may pertain” to their positions as helpers in the
Office of the Civil Defense and Disaster Organization.

Under
the fourth assignment of error, respondents allege that the lower court
should be granted their motion for new trial based upon newly
discovered evidence, consisting of the appointments of Jose Rodriguez
and Cirilo Decena to the positions of petitioners herein, which were
allegedly approved by the Commissioner of Civil Service. There is no
merit in this pretense. Said appointments were allegedly extended by respondent
city mayor on February 1, 1956, or over a year before the lower court
rendered the decision appealed from, dated February 15, 1957. And being
the officer who issued the appointments, respondent city mayor could
not have been unaware thereof. Besides, said appointments were
mentioned in paragraph 11 of the petition and admitted in paragraph 11
of respondents’ amended answer. Obviously, they were not newly
discovered evidence.

Respondents insist in their fifth
assignment of error, that, in view of said appointments of Jose
Rodriguez and Cirilo Decena, petitioners herein cannot maintain the
present action for mandamus, but should file quo warranto proceedings
against Rodriguez and Decena. In their aforementioned amended answer,
respondents denied, however, that Rodriguez and Decena had replaced
petitioners herein and alleged that the latter were appointed under
Resolution 27, series of 1954, and that the appointments of Rodriguez
and Decena had been extended under Ordinance No. 64, series of 1955. If
this allegation were true, it would not be necessary to remove
Rodriguez and Decena in order to reinstate petitioners herein. At any
rate, in a unanimous opinion, penned by Mr. Justice Montemayor, this
Court said in Batungbakal vs. National Development Co. and Manuel Agregado (93 Phil., 182; 49 Off. Gaz., 2290, 2299-2300):

“As
for the contention that for the Auditor General to reinstate the
plaintiff would be tantamount to compelling him to dismiss without
cause the present incumbent who was appointed after plaintiff’s
dismissal, suffice it to say that in so doing, neither injustice nor
violation of law would be committed. Inasmuch as Batungbakal was
illegally suspended and dismissed, legally speaking, his position never
became vacant, hence there was no vacancy to which the present
incumbent could be permanently appointed. In others words, the present
incumbent’s occupancy of or tenure in said post is temporary and
precarious and does not come within the contemplation of the
constitutional prohibition. But, assuming for the moment that the
incumbent’s tenure were permanent and that said tenure fell under the
protection of the Constitution, still, his being made to leave the post
to give way to the plaintiff’s superior right, may yet be considered as
removal for cause, not unlike a case of quo warranto where a respondent
incumbent is ousted by court order to give way to the successful party
or petitioner.”

The sixth assignment of
error refers to the effect upon this case of petitioners’ failure to
exhaust administrative remedies, namely, appeal to the Commissioner of
Civil Service, the Office of the President and the President himself.
Considering, however, that petitioners’ separation from the service was
based upon the alleged illegality of their appointments and that
petitioners were immediately removed from office, we believe that said
appeal was not a plain, speedy and adequate remedy in the ordinary
course of law. Furthermore, the rule laid down in Mangubat vs. Osmeña, et al., G. R. No. L-12837 (April 30, 1959) is squarely in point. We held therein that:

“*
* * when, from the very beginning, the action of the City Mayor is
patently illegal, arbitrary, and oppressive; when there has been no
semblance of compliance, or even an attempt to comply with the
pertinent laws; when, manifestly, the Mayor has acted without
jurisdiction, or has exceeded his jurisdiction, or has committed a
grave abuse of discretion, amounting to lack of jurisdiction; when his
act is clearly and obviously devoid of any color of authority, as in
the case at bar, the employee adversely affected may forthwith seek the
protection of the judicial department. Thus, in Mission vs. Del Rosario (94 Phil., 483; 50 Off, Gaz., 1571); Uy vs. Rodriguez (95 Phil., 493; 50 Off. Gaz., 3574); and Abella vs.
Rodriguez (95 Phil., 289; 50 Off. Gaz., 3039), we did not hesitate to
order the reinstatement of detectives of the police force of Cebu, who
were dismissed by the City Mayor under identical conditions as those
obtaining in the case at bar. Though not involving members of said
force, we also, deemed it proper to grant the review prayed for by the
dismissed employees, notwithstanding their failure to appeal from the
order of dismissal to the department head, in Palamine vs. Zagado, 94 Phil., 494; 50 Off. Gaz., (4) 1566, Manuel vs. De la Fuente (92 Phil., 302; 48 Off. Gaz., 4829), F. Jose vs. Lacson, L-10477 (May 17, 1957), Festejo vs. Mun. Mayor of Nabua (96 Phil., 286; 51 Off. Gaz., 121), Covacha vs. Amante, L-8358 (May 25, 1956), Carmona vs. Amante, (99 Phil., 716; 52 Off. Gaz., 5109), Senarillos vs. Hermosisima, (100 Phil., 501; 53 Off. Gaz. (4) 1043), and Briones vs. Osmeña, Jr., (104 Phil., 588; 55 Off. Gaz., [11] 1920).”

It is lastly urged that respondent city mayor should not have been
sentenced to pay back salaries of petitioners herein, he having been
sued in his official capacity.

It should be noted, in this
connection, that, although petitioners herein were removed from office
upon the ground that the ordinance creating their respective positions
had not become effective for alleged lack of the requisite departmental
approval, respondent city mayor had really no knowledge
whether said approval had been given or not, for, in respondents’
amended answer, it is merely alleged that they were not “aware” of such
approval, which turned out to have been, in fact, secured. Thus, the
dismissal of petitioners was effected, not only illegally, but, also,
with gross negligence on the part of respondent city mayor, if not
utter disregard of their rights, practically amounting to malice and
bad faith, thus bearing out, substantially, the allegation in the
petition to the effect that he had acted with “abuse of authority and
malice aforethought and with the end and in view of paving the way for
his cohorts to get the positions” in question. Under similar
conditions, we declared in Diaz vs. Amante, (104 Phil., 968; 55 Off. Gaz., (41) 8643) involving another city mayor sued in his official capacity:

“The
lower court ordered respondent not only to reinstate petitioners but
also to pay them their back salaries and moral and exemplary damages in
the aggregate amount of P7,000.00. We agree with the trial court that
respondent should be made to pay the back salaries of petitioners * *
*. We may also agree with the trial court in holding that respondent in
separating the petitioners from the service acted with gross
negligence, if not in bad faith, considering the events of contemporary
history that had happened in his province and his official acts
amounting to abuse of authority of which the trial court took judicial
notice in its decision, but we believe that the sum of P5,000.00 it
slapped upon respondent as moral damages is not justified, for the same
is already included in, if not absorbed by, the back salaries he was
ordered to pay to petitioners. And with regard to the sum of P2,000.00
which respondent was ordered to pay as exemplary damages, the same is
somewhat excessive, considering that respondent acted in the belief
that he had the requisite authority under Executive Order No. 264 of
the President which at that time has not yet been declared repealed by
the Supreme Court. But these damages should be imposed if only to
curtail the abuses that some public officials are prone to commit upon
coming to power in utter disregard of the civil service rules which
constitute the only safeguard of the tenure of office guaranteed by our
Constitution. These damages should therefore be reduced to P1,000.00.”

Thus, the lower court was even lenient in not sentencing respondent city mayor to pay moral or exemplary damages.

Wherefore, the decision appealed from is hereby affirmed, with costs against respondent city mayor. It is so ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Barrera, and Gutierrez David, JJ., concur.

Reyes, J.B.L., and Endencia, JJ., took no part.