G.R. No. 108310. September 01, 1994
RUFINO O. ESLAO, IN HIS CAPACITY AS PRESIDENT OF PANGASINAN STATE UNIVERSITY, PETITIONER, VS. COMMISSION ON AUDIT, RESPONDENT.
FELICIANO, J.:
In this Petition for Certiorari, Rufino O. Eslao in his
capacity as President of the Pangasinan State University (“PSU”) asks
us to set aside Commission on Audit (“COA”) Decisions Nos. 1547
(1990) and 2571 (1992) which denied honoraria and per diems claimed
under National Compensation Circular No. 53 by certain PSU personnel including
petitioner.
On 9 December 1988, PSU entered into a Memorandum of Agreement
(“MOA”)[1]
with the Department of Environment and Natural Resources (“DENR”) for
the evaluation of eleven (11) government reforestation operations in
Pangasinan.[2]
The evaluation project was part of the commitment of the Asian Development Bank
(“ADB”) under the ADB/OECF Forestry Sector Program Loan to the
Republic of the Philippines and was one among identical project agreements
entered into by the DENR with sixteen (16) other state universities.
On 9 December 1988, a notice to proceed[3] with
the review and evaluation of the eleven (11) reforestation operations was
issued by the DENR to PSU. The latter
complied with this notice and did proceed.
On 16 January 1989, per advice of the PSU Auditor-in-Charge with
respect to the payment of honoraria and per diems of
PSU personnel engaged in the review and evaluation project, PSU Vice President
for Research and Extension and Assistant Project Director Victorino P. Espero
requested the Office of the President, PSU, to have the University’s Board of
Regents (“BOR”) confirm the appointments or designations of involved
PSU personnel including the rates of honoraria and per diems
corresponding to their specific roles and functions.[4]
The BOR approved the MOA on 30 January 1989[5] and
on 1 February 1989, PSU issued Voucher No. 8902007[6]
representing the amount of P70,375.00 for payment of honoraria to PSU
personnel engaged in the project. Later, however, the approved honoraria rates were found to be
somewhat higher than the rates provided for in the guidelines of National
Compensation Circular (“NCC”) No. 53. Accordingly, the amounts were adjusted downwards to conform to
NCC No. 53. Adjustments were made by
deducting amounts from subsequent disbursements of honoraria. By June 1989, NCC No. 53 was being complied
with.[7]
On 6 July 1989, Bonifacio Icu, COA resident auditor at PSU,
alleging that there were excess payments of honoraria, issued a
“Notice of Disallowance”[8]
disallowing P64,925.00 from the amount of P70,375.00 stated in Voucher No.
8902007, mentioned earlier. The
resident auditor based his action on the premise that Compensation Policy
Guidelines (“CPG”) No. 80-4, dated 7 August 1980, issued by the
Department of Budget and Management which provided for lower rates than NCC No.
53 dated 21 June 1988, also issued by the Department of Budget and Management,
was the schedule for honoraria and per diems applicable to
work done under the MOA of 9 December 1988 between the PSU and the DENR.
On 18 October 1989, a letter[9] was
sent by PSU Vice President and Assistant Project Director Espero to the Chairman
of the COA requesting reconsideration of the action of its resident
auditor. In the meantime, the
Department of Budget and Management (“DBM”), upon request by PSU,
issued a letter[10]
clarifying that the basis for the project’s honoraria should
not be CPG No. 80-4 which pertains to locally funded projects but rather
NCC No. 53 which pertains to foreign-assisted projects. A copy of this clarification was sent to the
COA upon request by PSU.
On 18 September 1990, COA Decision No. 1547[11]
was issued denying reconsideration of the decision of its resident
auditor. The COA ruled that CPG No.
80-4 is the applicable guideline in respect of the honoraria as CPG No.
80-4 does not distinguish between projects locally funded and projects funded or
assisted with monies of foreign-origin.
PSU President Eslao sent a letter[12]
dated 20 March 1991 requesting reconsideration of COA Decision No. 1547 (1990)
alleging that (a) COA had erred in applying CPG No. 80-4 and not NCC No. 53 as
the project was foreign-assisted and (b) the decision was discriminatory — honoraria
based on NCC No. 53 having been approved and granted by COA resident auditors
in two (2) other state universities engaged in the same reforestation
project. PSU then submitted to the COA
(a) a certification[13] from
the DENR to the effect that the DENR evaluation project was foreign-assisted
and (b) the letter of the DBM quoted in the margin supra.
On 16 November 1992, COA Decision No. 2571 (1992)[14]
was issued denying reconsideration.
In the meantime, in December 1990, the DENR informed petitioner
of its acceptance of the PSU final reports on the review and evaluation of the
government reforestation projects.[15]
Subsequently, honoraria for the period from January 1989 to January 1990
were disbursed in accordance with NCC No. 53. A Certificate of Settlement and Balances (CSB No. 92-0005-184 [DENR])[16]
was then issued by the COA resident auditor of PSU showing disallowance of
alleged excess payment of honoraria which petitioner was being required
to return.
The instant Petition prays that (a) COA Decision Nos. 1547 (1990)
and 2571 (1992) be set aside; (b) the COA be ordered to pass in audit the grant
of honoraria for the entire duration of the project based on the
provisions and rates contained in NCC No. 53; and (c) the COA be held liable
for actual damages as well as petitioner’s legal expenses and attorney’s fees.
The resolution of the dispute lies in the determination of the
circular or set of provisions applicable in respect of the honoraria to
be paid to PSU personnel who took part in the evaluation project, i.e., NCC
No. 53 or CPG No. 80-4.
In asserting that NCC No. 53 supplies the applicable guideline
and that the COA erred in applying CPG No. 80-4 as the pertinent standard,
petitioner contends that:
(a) CPG No. 80-4 applies to “special
projects” the definition and scope of which do not embrace the evaluation
project undertaken by petitioner for the DENR;
(b) NCC No. 53 applies to foreign-assisted
projects (“FAPs”) while CPG No. 80-4 applies to locally-funded
projects as no reference to any foreign component characterizing the projects
under its coverage is made;
(c) the DENR evaluation project is a
foreign-assisted project per certification and clarification of the DENR and
DBM respectively as well as the implied admission of the COA in its Comment;
and
(d) the DBM’s position on the matter should be
respected since the DBM is vested with authority to (i) classify positions and
determine appropriate salaries for specific position classes, (ii) review the
compensation benefits programs of agencies and (iii) design job evaluation
programs.
The Office of the Solicitor General, in lieu of a Comment on the
Petition, filed a Manifestation[17]
stating that (a) since, per certification of the DENR and Letter/Opinion of the
DBM that the project undertaken by PSU is foreign-assisted, NCC No. 53 should
apply; and (b) respondent COA’s contention that CPG No. 80-4 does not
distinguish between projects which are foreign-funded from locally-funded
projects deserves no merit, since NCC No. 53, a special guideline, must be
construed as an exception to CPG No. 80-4, a general guideline. The Solicitor General, in other words,
agreed with the position of petitioner.
Upon the other hand, respondent COA filed its own comment,
asserting that:
(a) while the DBM is vested with the authority
to issue rules and regulations pertaining to compensation, this authority is
regulated by Sec. 2 (2) of Art. IX-D of the 1987 Constitution which vests
respondent COA with the power to “promulgate accounting and auditing rules
and regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant or unconscionable expenditures,
or uses of government funds and properties;”
(b) the Organizational Arrangement and
Obligations of the Parties sections of the MOA clearly show that the evaluation
project is an “inter agency activity” between the DENR and PSU and
therefore a “special project”;
(c) the issue as to whether the evaluation
project is in fact a “special project” has become moot in view of the
DBM’s clarification/ruling that the evaluation project is foreign-assisted and
therefore NCC No. 53, not CPG No. 80-4 which applies only to locally-funded
projects, should apply;
(d) the DBM issuance
notwithstanding, respondent COA applied CPG No. 80-4 to effectively rationalize
the rates of additional compensation assigned to or detailed in “special
projects” as its application is without distinction as to the source of
funding and any payment therefore in excess of that provided by CPG No. 80-4 is
unnecessary, excessive and disadvantageous to the government;
(e) respondent COA’s previous allowance of
payment of honoraria based on NCC No. 53 or the fact that a full five
years had already elapsed since NCC No. 53’s issuance does not preclude COA
from assailing the circular’s validity as “it is the responsibility of any
public official to rectify every error he encounters in the performance of his
function” and “he is not duty bound to pursue the same mistake for
the simple reason that such mistake had been continuously committed in the
past”;
(f) the DBM ruling classifying the evaluation
project as foreign-assisted does not rest on solid ground since loan proceeds,
regardless of source, eventually become public funds for which the government
is accountable, hence, any project under the loan agreement is to be considered
locally-funded;
(g) the DBM ruling constitutes an unreasonable
classification, highly discriminatory and violative of the equal protection
clause of the Constitution; and
(h) granting arguendo NCC No. 53 is the
applicable criterion, petitioner received honoraria in excess of what was provided in the MOA.
We consider the Petition meritorious.
Section 2.1 of CPG No. 80-4 defines “special project”
as
“an inter-agency or inter-committee activity or an undertaking
by a composite group of officials/employees from various agencies which [activity or
undertaking] is not among the regular and primary functions of the agencies
involved.” (Underscoring and brackets supplied)
Respondent COA maintains that the
sections of the MOA detailing the “Organizational Arrangement and
Obligations of the Parties” clearly show that the evaluation project is an
“inter-agency activity.” The pertinent sections of the MOA are as
follows:
“ORGANIZATIONAL
ARRANGEMENTS
A Coordinating Committee shall be created which shall be
responsible for the overall administration and coordination of the evaluation,
to be chaired by a senior officer of the DENR. The Committee shall [be] composed [of] the following:
Chairman : Undersecretary
for Planning, Policy and Project Management [DENR]
Co-Chairman : Vice-President
for Research and Development [PSU]
Members : Director of FMB
Dean, PSU Infanta
Campus
Associate Dean,
PSU Infanta Campus
Chief,
Reforestation Division
Project Director
of the ADB Program Loan for Forestry Sector
OBLIGATIONS
OF THE PARTIES
Obligations of DENR:
The DENR shall have the following obligations:
1. Provide the funds
necessary for the review and reevaluation of eleven (11) reforestation
projects.
x x x x x x x
x x
2. Undertake the monitoring of the study to
ascertain its progress and the proper utilization of funds in conformity with
the agreed work and financial plan.
3. Reserve the right
to accept or reject the final report and in the latter case, DENR may request
PSU to make some revisions/modifications on the same.
Obligations of the PSU:
The PSU shall have the following obligations:
1. Undertake the review and evaluation of the
eleven (11) DENR-funded reforestation projects in accordance with the attached
TOR;
2. Submit regularly to DENR financial status
reports apart from the progress report required to effect the second release of
funds;
3. Submit the final report to DENR fifteen
(15) days after the completion of the work. The report should at least contain the information which appears in
Annex D;
4. Return to DENR whatever balance is left of
the funds after the completion of work.”
Simply stated, respondent COA argues that
since the Coordinating Committee is composed of personnel from the DENR and
PSU, the evaluation project is an “inter-agency activity” within the
purview of the definition of a “special project”.
We are unable to agree with respondent COA.
Examination of the definition in CPG No. 80-4 of a “special
project” reveals that that definition has two (2) components: firstly, there should be an inter-agency or
inter-committee activity or undertaking by a group of officials or employees
who are drawn from various agencies; and secondly, the activity or undertaking
involved is not part of the “regular or primary” functions of the
participating agencies. Examination of
the MOA and its annexes reveals that two (2) groups were actually created. The first group consisted of the coordinating
committee, the membership of which was drawn from officials of the DENR and
of the PSU; and the second, the evaluation project team itself which
was, in contrast, composed exclusively of PSU personnel.[18]
We believe that the first component of the CPU No. 80-4’s definition of
“special project” is applicable in respect of the group which is
charged with the actual carrying out of the project itself, rather than to the
body or group which coordinates the task of the operating or implementing
group. To construe the administrative
definition of “special project” otherwise would create a situation,
which we deem to be impractical and possibly even absurd, under which any
undertaking entered into between the senior officials of government agencies
would have to be considered an “inter-agency or inter-committee
activity,” even though the actual undertaking or operation would be
carried out not by the coordinating body but rather by an separate group which
might not (as in the present case) be drawn from the agencies represented in
the coordinating group. In other words,
an “inter-agency or inter-committee activity or x x x undertaking”
must be one which is actually carried out by a composite group of officials and
employees from the two (2) or more participating agencies.
As already noted, in the case at hand, the project team
actually tasked with carrying out the evaluation of the DENR reforestation
activity is composed exclusively of personnel from PSU; the project
team’s responsibility and undertaking are quite distinct from the
responsibilities of the coordinating [DENR and PSU] committee. Thus, the project team is not a
“composite group” as required by the definition of CPG No. 80-4 of “special
projects.” It follows that the evaluation projects here involved do not
fall within the ambit of a “special
project” as defined and regulated by CPG No. 80-4.
We do not consider it necessary to rule on whether the project at
hand involved an undertaking “which is not among the regular and primary functions
of the agencies involved” since the reforestation activity evaluation
group is not, as pointed out above, a “special project” within the
meaning of CPG No. 80-4. In any case,
this particular issue was not raised by any of the parties here involved.
It is true, as respondent COA points out, that the provisions of
CPG No. 80-4 do not distinguish between “a special project” which is
funded by monies of local or Philippine origin and “a special
project” which is funded or assisted by monies originating from
international or foreign agencies. As
earlier noted, CPG No. 80-4 was issued by the Department of Budget and
Management back in 7 August 1980. Upon
the other hand, NCC No. 53 was issued also by the Department of Budget and
Management more than eight (8) years later, i.e., 9 December, 1988. Examination of the provisions of NCC No. 53
makes it crystal clear that the circular is applicable to foreign-assisted
projects only. The explicit text of NCC
No. 53 states that it was issued to
“prescribe/authorize the
classification and compensation rates of positions in foreign-assisted projects (FAPs) including honoraria rates for personnel detailed to FAPs and guidelines in the implementation
thereof pursuant to Memorandum No. 173 dated 16 May 1988″[19]
(Emphasis supplied)
and which apply to all positions in
foreign-assisted projects only. Clearly, NCC No. 53 amended the earlier CPG No. 80-4 by carving out from
the subject matter originally covered by CPG No. 80-4 all “foreign-assisted
[special] projects.” CPG No. 80-4 was, accordingly, modified so far as
“foreign-assisted [special] projects (FAPs)” are concerned. It is this fact or consequence of NCC No. 53
that respondent COA apparently failed to grasp. Thus, CPG No. 80-4 does not control, nor even relate to, the DENR
evaluation project for at least two (2) reasons: firstly, the evaluation project was not a “special
project” within the meaning of CPG No. 80-4; secondly, that same
evaluation project was a Foreign-Assisted Project to which NCC No. 53 is specifically
applicable.
That the instant evaluation project is a Foreign-Assisted Project
is borne out by the records: (a) the
MOA states that the project is “part of the commitment with the Asian
Development Bank (ADB) under the Forestry Sector Program Loan”; (b) the
certification issued by the DENR certifies that
“x x x the review and evaluation of DENR reforestation
projects undertaken by State Universities and Colleges, one of which is
Pangasinan State University, is one of the components of the ADB/OECF Forestry
Sector Program Loan which is funded by the loan. It is therefore a foreign-assisted project” (Underscoring
supplied); and
(c) the clarification issued by the DBM
stating that
“The honoraria rates of the detailed personnel should
not be based on Compensation Policy Guidelines No. 80-4, which pertains to
locally funded projects. Since the
funding source for this activity come from loan proceeds, National Compensation
Circular No. 53 should apply.”
Even in its Comment respondent COA
submits that
“x x x the issue as to whether or not
the project was special already became moot in the face of the opinion/ruling
of the DBM that since it (the project) is ‘foreign-assisted’ NCC 53 should
apply, for CPG No. 80-4 applies only to ‘locally-funded projects.’”[20]
Under the Administration Code of 1987,
the Compensation and Position Classification Bureau of the DBM “shall
classify positions and determine appropriate salaries for specific position classes
and review appropriate salaries for specific position classes and review the
compensation benefits programs of agencies and shall design job evaluation
programs.”[21]
In Warren Manufacturing Workers Union (WMWU) v. Bureau of Labor Relations,[22]
the Court held that “administrative regulations and policies enacted by
administrative bodies to interpret the law have the force of law and are
entitled to great respect.” It is difficult for the Court to understand
why, despite these certifications, respondent COA took such a rigid and
uncompromising posture that CPG No. 80-4 was the applicable criterion for honoraria
to be given members of the reforestation evaluation project team of the PSU.
Respondent COA’s contention that the DBM clarification is
unconstitutional as that ruling does not fulfill the requisites of a valid
classification[23]
is, in the Court’s perception, imaginative but nonetheless an after-thought and
a futile attempt to justify its action. As correctly pointed out by petitioner, the constitutional arguments
raised by respondent COA here were never even mentioned, much less discussed,
in COA Decisions Nos. 1547 (1990) and 2571 (1992) or in any of the proceedings
conducted before it.
Petitioner also argues that the project’s duration stipulated in
the MOA was implicitly extended by the parties. The DENR’s acceptance, without any comment or objection, of PSU’s
(a) letter explaining the delay in its submission of the final project report
and (b) the final project report itself brought about, according to petitioner,
an implied agreement between the parties to extend the project duration. It is also contended that by the very nature
of an evaluation project, the project’s duration is difficult to fix and as in
the case at bar, the period fixed in the MOA is merely an initial estimate
subject to extension. Lastly,
petitioner argues that whether the project was impliedly extended is an
inconsequential consideration; the material consideration being that the
project stayed within its budget. The
project having been extended, petitioner concludes that the evaluation team
should be paid honoraria from the time it proceeded with the project and
up to the time the DENR accepted its final report.
Mindful of the detailed provisions of the MOA and Project
Proposal governing project duration and project financing as regulated by NCC
No. 53, the Court is not persuaded that petitioner can so casually assume
implicit consent on the part of the DENR to an extension of the evaluation
project’s duration.
The “Duration of Work” clause of the MOA provides that
“PSU shall commence the work 10 days from receipt of the
Notice to Proceed and shall be completed five months thereafter.”
(Underscoring supplied)
On 9 December 1988, the DENR advised PSU
President Rufino Eslao that PSU “may now proceed with the review and
reevaluation as stipulated” in the MOA. The Notice to Proceed further stated that
“Your institution is required to complete the work within
five months starting ten (10) days upon receipt of this notice.”
(Underscoring supplied)
In respect of the financial aspects of
the project, the MOA provides that
“The DENR shall have the following obligations:
1. Provide the funds necessary for the
review and reevaluation of the eleven (11) reforestation projects x x x in the
amount not more than FIVE HUNDRED SIX THOUSAND TWO HUNDRED TWENTY FOUR PESOS
(P506,224.00) which shall be spent in accordance with the work and financial
plan which attached as Annex C. Fund remittances shall be made on a
staggered basis with the following schedule:
a. FIRST RELEASE
Twenty percent (20%) of the total cost to be remitted within
fifteen (15) working days upon submission of work plan;
b. SECOND RELEASE
Forty percent of the total cost upon submission of a progress
report of the activities that were so far undertaken;
c. THIRD RELEASE
Thirty percent (30%) of the total amount upon submission of the
draft final report;
d. FOURTH RELEASE
Ten percent of the total amount [upon submission] of the final
report.” (Underscoring supplied)
Annex “C” referred to in the
MOA is the Project Proposal. Per the
Proposal’s “Budget Estimate,” P175,000.00 and P92,500.00 were
allotted for “Expert Services” and “Support Services”
respectively itemized as follows:
”
PERSONAL SERVICES
EXPERT
SERVICES
___________________________________________________________________________________
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___________________________________________________________________________________
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___________________________________________________________________________________
TOTAL 175,000
___________________________________________________________________________________
Support Services
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In addition, the Proposal already provided
a list of identified experts:
“EXPERTS
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who, together with six (6) staff members
namely Henedina M. Tantoco, Alicia A. Angelo, Yolanda Z. Sotelo, Gregoria Q.
Calela, Nora A. Caburnay and Marlene S. Bernebe composed the evaluation project
team. At this point, it should be
pointed out that the “Budget Estimate” even provides a duration
period for the participation of each and every person whether rendering expert
or support services.
On the other hand, NCC No. 53 provides:
“3.3.1 The
approved organization and staffing shall be valid up to project completion
except for modifications deemed necessary by the Project Manager. The Project Manager shall be given the
flexibility to determine the timing of hiring personnel provided the
approved man-years for a given position for the duration of the project is not
exceeded.
x x x x x x x
x x
3.6 A regular employee who may detailed to
any FAPs on a part-time basis shall be entitled to receive honoraria in
accordance with the schedule shown in
Attachment II hereof.
x x x x x x x
x x
3.7 Payment of honoraria shall be made out of project funds
and in no case shall payment thereof be made out of regular agency fund.
x x x x x x x
x x
3.10 The total amount of compensation to be
paid shall not exceed the original amount allocated for personal services
of the individual foreign-assisted projects. Any disbursement in excess of the original amount allotted for
personal services of the individual projects shall be the personal
liability and responsibility of the officials and employees authorizing or
making such payment.” (Underscoring supplied)
Attachment II of NCC No. 53 prescribes
the monthly rates allowed for officials/employees on assignment to
foreign-assisted special projects:
A. Position Level — Project Manager/Project Director
Responsibility
— x x x
Parttime —
P2,000.00
B Position
Level — Assistant Project Director
Responsibility
— x x x
Parttime — P1,500.00
C. Position Level — Project Consultant
Responsibility
— x x x
Parttime —
P1,000.00
D. Position Level — Supervisor/Senior
Staff Member
Responsibility
— x x x
Parttime —
P1,000.00
E. Position Level — Staff Member
Responsibility —
x x x
Parttime —
P700.00
Administrative and Clerical
Support
A. Position Level — Administrative Assistant
Responsibility —
x x x
Parttime —
P500.00
B. Position Level — Administrative
Support Staff
Responsibility
— x x x
Parttime —
P400.00
From the clear and detailed provisions of the MOA and Project
Proposal in relation to NCC No. 53,
consent to any extension of the evaluation project, in this instance, must be
more concrete than the alleged silence or lack of protest on the part of the
DENR. Although tacit acceptance is
recognized in our jurisdiction,[24] as a
rule, silence is not equivalent to consent since its ambiguity lends itself to
error. And although under the Civil
Code there are instances when silence amounts to consent,[25]
these circumstances are wanting in the case at bar. Furthermore, as correctly pointed out by the respondent COA, the
date when the DENR accepted the final project report is by no means conclusive
as to the terminal date of the evaluation project. Examination of the MOA (quoted earlier on pages 19-20) reveals
that the submission of reports merely served to trigger the phased releases of
funds. There being no explicit
agreement between PSU and the DENR to extend the duration of the evaluation
project, the MOA’s “Budget Estimate” which, among others, provides in
detail the duration of service for each member of the evaluation project as
amended by the rates provided by NCC No. 53 must be the basis of the honoraria due to the evaluation team.
The other arguments of respondent COA appear to us to be
insubstantial and as, essentially, afterthoughts. The COA apparently does not agree with the policy basis of NCC
No. 53 in relation to CPG No. 80-4 since COA argues that loan proceeds
regardless of source eventually become public funds for which the government is
accountable. The result would be that
any provisions under any [foreign] loan agreement should be considered
locally-funded. We do not consider that
the COA is, under its constitutional mandate, authorized to substitute its own
judgment for any applicable law or administrative regulation with the wisdom or
propriety of which, however, it does not agree, at least not before such law or
regulation is set aside by the authorized agency of government — i.e., the
courts — as unconstitutional or illegal and void. The COA, like all other government agencies, must respect the
presumption of legality and constitutionality to which statutes and
administrative regulations are entitled[26]
until such statute or regulation is repealed or amended, or until set aside in
an appropriate case by a competent court (and ultimately this Court).
Finally, we turn to petitioner’s claim for moral damages and
reimbursement of legal expenses. We
consider that this claim cannot be granted as petitioner has failed to present
evidence of bad faith or tortious intent warranting an award thereof. The presumption of regularity in the
performance of duty must be accorded to respondent COA; its action should be
seen as its effort to exercise (albeit erroneously, in the case at bar) its
constitutional power and duty in respect of uses of government funds and
properties.
WHEREFORE, for all the foregoing, the Petition
for Certiorari is hereby GRANTED. COA Decisions Nos. 1547 and 2571,
respectively dated 18 September 1990 and 16 November 1992, are hereby SET ASIDE. The instant evaluation project being a Foreign-Assisted Project, the
following PSU personnel involved in the project shall be paid according to the
Budget Estimate schedule of the MOA as aligned with NCC No. 53:
A. For Experts
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* Project Manager/ Project Director
** Assistant Project Director
*** Project Consultants
B. For Support Staff
|
|
Expert |
Duration of Service |
Rate/month (NCC No. 53) |
Total |
|
1. |
Research Associate** |
4 |
700 |
2,800 |
|
2. |
Research Associate |
4 |
700 |
2,800 |
|
3. |
Documentalist |
2.04 |
700 |
1,428 |
|
4. |
Special Disbursing Officer |
4 |
700 |
2,800 |
|
5. |
Typist Assistant*** |
2.27 |
500 |
1,135 |
|
6. |
Cashier |
2.27 |
500 |
1,135 |
|
|
|
|
|
12,098 |
* Per Attachment to DBM Clarification dated
10 November 1989, Rollo, p. 59.
** Staff Member
*** Administrative Assistants.
No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, and
Mendoza, JJ., concur.
Cruz and Bidin, JJ., on official leave.
[1]
Annex ‘A’ of Petition, Rollo, pp. 24-49.
[2]
Bamboo Pilot Plantation Project
(Infanta); Bamboo Plantation Project (Mangatarem); Bamboo Pilot Project
(Natividad); Mangrove Revegetation Project (Anda/Bolinao/Alaminos); Manleluag
Reforestation Project (Mangatarem); Support to PIADP (Cacaoiten/Mangatarem);
Support to PIADP (San Nicolas/Natividad); Support to PIADP (Siwasiw/Sual); San
Nicolas Reforestation Project (San Nicolas); Urban Forestry Project (Dagupan
City) and Villaverde Trail Revegetation Project (San Nicolas)
[3]
Annex ‘B’ of Petition, Rollo, p. 49.
[4]
Annex ‘C’ of Petition, Rollo, p. 50.
[5]
Annex ‘D’ of Petition, Rollo, p. 51.
[6]
Annex ‘E’ of Petition, Rollo, p. 52.
[7]
Annexes ‘F’, ‘G’ and ‘H’, Rollo, pp. 53-55.
[8]
Annex “I” of Petition, Rollo,
p. 56. The Notice reads:
“July 6, 1989
Mr.
Rufino Eslao
University President, PSU Main
Lingayen, Pangasinan
Sir/Madam:
This is to inform you that in our audit of 8902007 (Pres. Rufino O.
Eslao and Co.) the amount of P70,375.00 has been disallowed for the following
reasons:
Amount paid per
payroll..….. P 70,375.00
Amount allowed in
audit..….. 5,450.00
Difference to be
refunded…. 64,925.00
Amount paid in excess of the authorized rates
under CPG 80-4 dated August 7, 1980 is disallowed.
and you have been determined as one to be jointly and severally liable
therefor.
In view of this, you are hereby directed to settle immediately the
above disallowance. Failure to do so
may compel this Office to adopt the necessary measures to enforce settlement
hereof.
Very truly yours,
(SGD) Bonifacio Icu”
[9]
Annex ‘J’ of Petition, Rollo, p.
57.
[10]
Annex ‘K’ of Petition, Rollo,
pp. 58-59. The letter reads:
“November 10, 1989
Hon.
Rufino O. Eslao
President,
Pangasinan State University
Lingayen, Pangasinan
Dear
President Eslao,
This pertains to your request for authority to pay the honoraria of
Pangasinan State University (PSU) personnel detailed to the Department of
Environment and Natural Resources – PSU Project under the ADB assisted Forestry
Sector Loan (889/890 PHI).
The honoraria rates of the detailed personnel should not be
based on Compensation Policy Guidelines No. 80-4, which pertains to locally
funded projects. Since the funding source for this activity
come from loan proceeds, National Compensation Circular No. 53 should apply.
It should be pointed out that the provisions of your Memorandum of
Agreement with the DENR cannot prescribe higher honoraria rates than that
authorized under existing rules and regulations.
In view of the foregoing, attached is the authority to grant honoraria
to PSU personnel at the rates
prescribed.
We hope that this clarifies the issues in your letter.
Very
truly yours,
(SGD.)
for Guillermo N. Carague”
(Underscoring supplied)
[11]
Annex ‘L’ of Petition, Rollo, p.
60. COA Decision NO. 1547 reads:
“September 18, 1990
Mr.
Victorino P. Espero
Officer
in Charge and
Vice
President for Research
and
Development
Pangasinan
State University
Lingayen,
Pangasinan
Sir:
This pertains to your letter dated October 9, 1989, seeking
reconsideration of the decision of this Commission contained in a 2nd
Indorsement dated May 10, 1989, denying the claim for honoraria and per diems
of some personnel of the Pangasinan State University assigned at the DENR
Reforestation Project in Pangasinan in excess of those provided under
Compensation Policy Guidelines 80-4
dated April 7, 1980.
You allege that the project in question does not fall under the
contemplation of Compensation Policy Guideline (sic) No. 80-4 since it is a
foreign-assisted project. We find your
position to be meritless. It bears stress that the purpose of the guideline is
to rationalize the rates of additional compensation of officials on assignment
to special projects and to ensure uniform practice therein. Thus, it is believed that CPG No. 80-4
remains to be the present guideline on the matter since it does not qualify
whether or not the same is applicable only to locally funded special
projects. Where the law does not
distinguish, no distinction should be made.
Premises considered, the herein request for reconsideration has to be,
as it is hereby, denied.
Very truly yours,
(SGD.) Eufemio C. Domingo
Chairman
(SGD.) Bartolome C. Fernandez
Commissioner”
[12]
Annex ‘M’ of Petition, Rollo, p.
61.
[13]
Annex ‘N’ of Petition, Rollo, p.
62. The Certification reads:
“28 September 1990
C E R T I F I C A
T I O N
This is to certify that the review and evaluation of DENR reforestation
projects undertaken by State Universities and Colleges, one of which is
Pangasinan State University, is one of the components of the ADB/OECF
Forestry Sector Program Loan which is funded by the loan. It is therefore a foreign-assisted
project.
(SGD.) Celestino B. Ulep
Assistant
Program Director
National
Program Coordinating Office”
(Underscoring supplied)
[14]
Annex ‘O’ of Petition, Rollo, p.
63.
[15]
Annex ‘P’ of Petition, Rollo, p.
64.
[16]
Annex ‘Q’ of Petition, Rollo, p.
65. The Certificate reads:
“December 29, 1992
CERTIFICATE OF SETTLEMENT AND BALANCES
To: Dr. Rufino O. Eslao
– University President
Ms. Marlene S. Benebe – Cashier III
PSU, Lingayen, Pangasinan
Attention: Mrs. Gregoria Galela – Accountant
We have audited in accordance with prescribed auditing procedures, the
accounts of Dr. Rufino O. Eslao and Ms. Marlene S. Benebe as University
President and Cashier III respectively for the period from October 16, 1990 to
January 31, 1991 and arrived at a balance of P92,350.00 as of January 31, 1991
with disallowances and suspensions amounting to P92,350.00 as indicated in
detail in Sections 1.A.1 and 1.A.2 respectively hereof. Items disallowed are charges against the
persons held liable therefore, while items suspended and not settled within 90
days after receipt of the Notice of Suspension (NS) shall become disallowances.
Prompt settlement of all suspensions and
disallowances is mandatory. The
necessary action to settle the suspension is indicated in the individual NS
issued.
x x x x x x x x x
(SGD.) Bonifacio B. Ico
State Auditor IV
(Auditor-in-charge)”
[17]
Rollo, pp. 90-97.
[18]
Per the Project Proposal, the evaluation project team was composed of thirteen
(13) experts and a support staff of at least eight (8) personnel. Per Annexes “F,” “G” and
“H,” the team actually consisted of nineteen (19) persons — thirteen
(13) experts and six (6) support staff members, all nineteen (19) persons being
drawn exclusively from the PSU.
[19]
Rollo, p. 72.
[20]
Rollo, pp. 111-112.
[21]
Book IV, Title XVII, Chapter 3, Sec.
7(3).
[22]
159 SCRA 387 (1988) citing Espanol v. Philippine Veterans
Administration, 135 SCRA 314 (1985).
[23]
NCC No. 53 is allegedly a classification (a) that is based on the source of
funding which is not substantial; (b) that is violative of the standardization
of compensation clause of the Constitution; (c) that is not germane to the
purpose of the law, i.e. it serves no legitimate social, economic or political
goals and (d) provides no justification to discriminate against local capital.
[24]
Article 1319-1320 of the Civil Code.
[25]
Articles 1670, 1870-1973 of the Civil Code.
[26]
Fernandez v. Torres, 215 SCRA 489 (1992); Garcia v. The Executive
Secretary, et al, 211 SCRA 219 (1992); Gonzales v. Land Bank of the
Philippines, 183 SCRA 520 (1990); Philippine Association of Service Exporters,
Inc. v. Drilon, 163 SCRA 386 (1988); Espanol v. Chairman,
Philippine Veterans Administration, 137 SCRA 314 (1985); Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor of Manila, 20 SCRA
849 (1967).