ALIPIO GONZALES, PETITIONER AND APPELLANT, VS. HON. SERGIO OSMEÑA, JR., CITY MAYOR OF CEBU, THE MUNICIPAL BOARD, THE CITY TREASURER AND THE CITY AUDITOR, ALL OF THE CITY OF CEBU…

Gonzales versus Osmeña

The Case

This is the case of Gonzales versus Osmeña, decided by the Supreme Court on the last day of December 1961. Alipio Gonzales, a civil service eligible who had served the Cebu City Police Department for almost twenty years, brought a petition for mandamus against the City Mayor of Cebu, the Municipal Board, the City Treasurer, and the City Auditor. He asked the court to declare null and void the abolition of his position as deputy detective inspector and the termination of his services, to order his reinstatement, and to compel payment of his back salaries. The case matters to a reviewee because it settles two enduring questions: whether a civil service employee may be removed by the mere abolition of his position without the approval of the department head, and whether he may recover back salaries even where the City itself was never formally impleaded as a party.

Procedural History

Gonzales filed his petition for mandamus in the Court of First Instance of Cebu. The respondents answered, setting up the lawful abolition of the position and offering a new appointment which the petitioner had refused. The trial court denied the petitioner's motion to amend his petition so as to implead the City of Cebu and the Chief of Police, but allowed the inclusion of the incumbent city mayor and city auditor. The parties then submitted a revised agreed stipulation of facts.

On the basis of that stipulation, the trial court rendered judgment ordering the petitioner's reinstatement to his former position, following the earlier case of Gacho versus Osmeña, but denying him back salaries, relying on Angara versus Gorospe, on the ground that the City of Cebu had not been made a party respondent. The petitioner moved for reconsideration, which was denied. He then appealed from that part of the judgment denying his claim for back salaries. The respondents did not appeal. The case reached the Supreme Court on that appeal.

Facts

Alipio Gonzales was a civil service eligible for patrolman, having passed the examination with a rating of 83.5 percent. He served in the police department of the City of Cebu in various capacities for nineteen years, nine months, and two days. He held the position of deputy detective inspector under a permanent appointment, with compensation at the rate of 1,440 pesos per annum.

On the last day of December 1956, he was served a letter signed by the City Mayor informing him that, in view of the abolition of his position pursuant to Ordinance Number 220, his services were terminated effective at the close of office hours that day. Simultaneously, he was extended a new appointment as police sergeant in the uniformed division of the same department, at a higher salary of 1,680 pesos per annum, but the appointment was expressly made "good until revoked." He refused to accept it.

On the third of April 1957, through counsel, he demanded reinstatement with back salaries, invoking the requirement of prior approval by the department head and pointing out that his efficiency rating of 89 percent was higher than that of several deputy detective inspectors who were retained. The respondents refused. He then appealed to the President, who took no action. Having no other plain, speedy, and adequate remedy, he filed the petition for mandamus. The parties stipulated that the abolition of his position was made without the consent of the proper department head.

Issues

• Whether or not the abolition of the petitioner's position and the termination of his services were valid, considering that the abolition was made without the approval of the proper department head.
• Whether or not the petitioner is entitled to back salaries from the first of January 1957 until his reinstatement, despite the fact that the City of Cebu was not formally impleaded as a party respondent.
• Whether or not the petitioner's refusal to accept the new appointment as police sergeant precludes him from demanding back salaries.

Applicable Provisions

The decision turns on the statutory requirement of department head approval for the abolition of positions in the classified civil service. The Court applied the rule that no officer or employee in the classified service may be removed or suspended except for cause, and that the abolition of a position must carry the approval of the proper department head. The decision quotes the termination letter itself, which reads:

In view of the abolition of your position pursuant to Ordinance No. 220, as published in two Cebu newspapers of general circulation in the City, please be advised that your services are hereby terminated effective at the close of office hours on December 31, 1956.

This letter is the act complained of, and its validity depends on whether the abolition it invokes complied with the requirement of department head approval.

The decision also quotes the new appointment extended to the petitioner, which reads:

By virtue of the powers vested in me by Section 21 of Commonwealth Act No. 58, as amended by Section 6 of Commonwealth Act No. 129, you are hereby appointed as Police Sergeant in the Office of Police Department, City of Cebu, with compensation at the rate of One thousand six hundred eighty pesos per annum effective January 1, 1957, and good until revoked.

The phrase "good until revoked" is decisive, because it shows that the tendered appointment was temporary and could not defeat the petitioner's right to his permanent position.

Ruling

On the first issue, the Court held that the abolition of the petitioner's position, made without the consent of the proper department head, could not validly terminate his services. The trial court had already ordered his reinstatement, following Gacho versus Osmeña, and the respondents did not appeal from that ruling. The reinstatement therefore stood.

On the second issue, the Court reversed the denial of back salaries. It relied on its recent ruling in Mangubat versus Osmeña, where it held that the inclusion of the City as a respondent is required by due process, but that those requirements were substantially complied with where the mayor, the city attorney, the auditor, the treasurer, and the municipal board had all defended the case as if the City had been named. The Court reasoned that it would be subordinating substance to form to dismiss the claim or remand the case for a formal amendment after five years of proceedings. It therefore deemed the inclusion of the City of Cebu a mere formality, effected as if a formal amendment had been made.

On the third issue, the Court held that the petitioner's refusal of the new appointment did not bar his claim. The appointment was temporary only, because it was "good until revoked," and being a civil service eligible holding a permanent position, he had every right to decline it.

Doctrine

First, the abolition of a position in the classified civil service, to be valid as against the incumbent, must carry the approval of the proper department head; absent that approval, the termination of services is unlawful and the employee is entitled to reinstatement.

Second, a permanent civil service employee cannot be removed by the device of a temporary appointment offered in place of his permanent position; an appointment that is "good until revoked" is temporary in nature, and the employee may decline it without forfeiting his rights.

Third, the failure to formally implead a city as a party respondent does not defeat a claim for back salaries where its responsible officers, including the mayor, the city attorney, the auditor, the treasurer, and the municipal board, have actually defended the case; due process is substantially satisfied, and the inclusion of the City is deemed effected as a mere formality.

Disposition

The Supreme Court reversed the part of the judgment appealed from and directed the respondents to pay the petitioner his back salaries from the first of January 1957 until his reinstatement in the service, without pronouncement as to costs.

Remember This

The line worth memorizing is that substance prevails over form: the City's formal inclusion as a party is deemed effected where its officers fully defended the suit, and a permanent employee may refuse a temporary appointment offered in place of his abolished position. Examiners use this case to test the requisites of a valid abolition of office and the rule on back salaries where the local government unit is not formally impleaded.