G.R. No. 122197. June 26, 1998
ZOSIMO M. DIMAANDAL, PETITIONER, VS. COMMISSION ON AUDIT, RESPONDENT.
MARTINEZ, J.:
“Foregoing premises considered, the instant appeal cannot be given
due course. Accordingly, the disallowance in question in the total
amount of P52,908.00 is hereby affirmed. Considering that the claim for
the RATA differential in the amount of P8,400.00 is devoid of any legal
basis, the same is also disallowed. Hence, appellant Zosimo M. Dimaandal
is hereby directed to refund the salary and RATA differential in the
amount of P61,308.00 he had received from the Provincial Government of
Batangas.”[2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then
holding the position of Supply Officer III, was designated Acting
Assistant Provincial Treasurer for Administration by then Governor
Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner
filed a claim for the difference in salary and Representation and
Transportation Allowance (RATA) of Assistant Provincial Treasurer and
Supply Officer III for the whole year of 1993 in the total amount of
P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of
the claim. What was allowed was only the amount of P8,400.00 which
corresponds to the difference in the allowances attached to the
designation and the position occupied by the appellant. The disallowance
was premised on the following reasons:
“1. The provisions of Section 2077 of the Revised Administrative
Code is not applicable in the instant case as the power to fill the
position of Assistant Provincial Treasurer rests on the Secretary of
Finance.2. The designation is temporary in nature and does not amount to
the issuance of an appointment as could entitle the designee to receive
the salary of the position to which he is designated (Opinion of the
Director, Office for Legal Affairs, Civil Service Commission dated
January 25, 1994).”
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor
requesting reconsideration of the subject disallowance, interposing the
following reasons:
“1. That Section 2077 of the Revised Administrative Code is
applicable in the instant case as the same provides that the Governor
General or the officer having the power to fill-up a temporary absence
or disability in the provincial office has the power to order or
authorize payment of compensation to any government officer or employee
designated or appointed temporarily to fill the place;2. That the budget containing an appropriation for the position of
Assistant Provincial Treasurer for Administration was already approved
by the Provincial Board; and3. That Mr. Dimaandal at the time of his designation as Acting
Provincial Treasurer for Administration was no longer performing the
duties and functions of Supply Officer III.”
The Provincial Auditor, however, denied the request for
reconsideration. Appellant was required to refund the amount of
P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which
sustained the stand of the Provincial Auditor of Batangas as valid and
proper. The respondent Commission was of the view that the petitioner
was merely designated as an Assistant Provincial Treasurer for
Administration in addition to his regular duties. As such, he is not
entitled to receive an additional salary. The Commission further opined
that petitioner was likewise not entitled to receive the difference in
RATA provided for under the Local Budget Circular issued by the
Department of Budget and Management considering that the party
designating him to such position is not the “duly competent authority,”
provided for under Section 471 of the Local Government Code. Notably,
petitioner was appointed as Assistant Provincial Treasurer for
Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the
disallowance of the amount of P52,908.00 but likewise disallowed the
claim for the RATA differential in the amount of P8,400.00, for being
devoid of any legal basis. Petitioner was, therefore, directed to refund
the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in
an acting capacity is entitled to the difference in salary between his
regular position and the higher position to which he is designated.
Petitioner avers that the respondent Commission’s decision is
“probably not in accordance with applicable decisions of the Supreme
Court.”[3] He cites the cases of Cui, et. al. vs. Ortiz, et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,[5]
which laid down the rule that de facto officers are entitled to salary
for services actually rendered. Petitioner contends that he may be
considered as a de facto officer by reason of services rendered in favor
of the Province of Batangas. He then posits the view that to disallow
his compensation and in the process allow the Province of Batangas to
keep and enjoy the benefits derived from his services actually rendered
would be tantamount to deprivation of property without due process of
law, and impairment of obligation of contracts duly enshrined in the
Constitution.
On the other hand, the respondent Commission, through the Office
of the Solicitor General, maintains that the decisions cited by
petitioner do not find application in petitioner’s case. In the case of
Menzon, what was extended was an appointment to the vacant position of
Vice-Governor. Here, what was extended to petitioner was not an
appointment but a mere designation. Thus, the nature of petitioner’s
designation and in the absence of authority of the Governor to authorize
the payment of the additional salary and RATA without the appropriate
resolution from the Sangguniang Panlalawigan does not make the ruling on
de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioner’s insistence that he could
still claim the salary and RATA differential because he actually
performed the functions pertaining to the office of Acting Assistant
Provincial Treasurer and, therefore, entitled to the salary and benefits
attached to it despite the fact that the Governor of Batangas had no
authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that:
“Sec. 471. Assistant Treasurers. – (a) An
assistant treasurer may be appointed by the Secretary of Finance from a
list of at least three (3) ranking eligible recommendees of the governor
or mayor, subject to civil service law, rules and regulations.xxx
xxx
xxx
In fact, the appointing officer is authorized by law to order the
payment of compensation to any government officer or employee designated
or appointed to fill such vacant position, as provided under Section
2077 of the Revised Administrative Code which states that:
“Section 2077. Compensation for person appointed to temporary service.
xxx
xxx
xxx“In case of the temporary absence or disability of a provincial
officer or in case of a vacancy in a provincial office, the President of
the Philippines or officer having the power to fill such position may,
in his discretion, order the payment of compensation, or additional
compensation, to any Government officer or employee designated or
appointed temporarily to fill the place, but the total compensation paid
shall not exceed the salary authorized by law for the position filled.”
Undoubtedly, the aforecited laws do not authorize the Provincial
Governor to appoint nor even designate one temporarily in cases of
temporary absence or disability or a vacancy in a provincial office.
That power resides in the President of the Philippines or the Secretary
of Finance.
Necessarily, petitioner’s designation as Assistant Provincial
Treasurer for Administration by Governor Mayo being defective, confers
no right on the part of petitioner to claim the difference in the
salaries and allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was
merely a designation not an appointment. The respondent Commission
clearly pointed out the difference between an appointment and
designation, thus:
“There is a great difference between an appointment and
designation. While an appointment is the selection by the proper
authority of an individual who is to exercise the powers and functions
of a given office, designation merely connotes an imposition of
additional duties, usually by law, upon a person already in the public
service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA
125).“Designation is simply the mere imposition of new or additional
duties on the officer or employee to be performed by him in a special
manner. It does not entail payment of additional benefits or grant upon
the person so designated the right to claim the salary attached to the
position (COA Decision No. 95-087 dated February 2, 1995). As such,
there being no appointment issued, designation does not entitle the
officer designated to receive the salary of the position. For the legal
basis of an employee’s right to claim the salary attached thereto is a
duly issued and approved appointment to the position (Opinion dated
January 25, 1994 of the Office for Legal Affairs, Civil Service
Commission, Re: Evora, Carlos, A. Jr., Designation).”[6]
This Court has time and again ruled that:
“Although technically not binding and controlling on the courts,
the construction given by the agency or entity charged with the
enforcement of a statute should be given great weight and respect (In re
Allen, 2 Phil. 630, 640), particularly so if such construction, as in
the case at bar, has been uniform, and consistent, and has been observed
and acted on for a long period of time (Molina vs. Rafferty, 38 Phil.
167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs.
Collector of Customs, 51 Phil. 143).”[7]
We see no justifiable reason to sustain petitioner’s argument that
non-payment of his salary differential and RATA would be a violation of
his constitutional right against deprivation of property without due
process of law and the non-impairment of obligation of contracts clause
in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is
based on the assumption that the appointment or designation thereof was
made in accordance with law. Considering that petitioner’s designation
was without color of authority, the right to the salary or an allowance
due from said office never existed. Stated differently, in the absence
of such right, there can be no violation of any constitutional right nor
an impairment of the obligation of contracts clause under the
Constitution.
The nature of petitioner’s designation and the absence of
authority of the Governor to authorize the payment of the additional
salary and RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment
from one having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its face. It is
likewise defined as one who is in possession of an office, and is
discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or informal, so
that the incumbent be not a mere volunteer.[8]
Then a de facto officer is one who is in possession of an office in the
open exercise of its functions under color of an election or an
appointment, even though such election or appointment may be irregular.[9]
Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto officer is entitled to receive the salary for services actually rendered. However, his reliance on the Menzon case is misplaced. In Menzon,
what was extended was an appointment to the vacant position of
Vice-Governor, in petitioner’s case, he was designated. The appointment
of Menzon had the color of validity. This Court said:
“And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint the
petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation. There is no denying that the petitioner
assumed the Office of the Vice-Governor under a color of a known
appointment. As revealed by the records, the petitioner was appointed by
no less than the alter ego of the President, The Secretary of Local
Government, after which he took his oath of office before Senator
Alberto Romulo in the Office of Department of Local Government Regional
Director Res Salvatierra. Concededly, the appointment has the color of
validity.”
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does not apply in petitioner’s case. In Cui, this Court held:
“Petitioners’ appointments on December 1 and 12, 1955 by the then
mayor of the municipality were legal and in order, the appointing mayor
still in possession of his right to appoint. For such appointments to be
complete, the approval of the President of the Philippines is required.
The law provides that pending approval of said appointment by the
President, the appointee may assume office and receive salary for
services actually rendered. Accordingly, therefore, in that duration
until the appointment is finally acted upon favorably or unfavorably,
the appointees may be considered as ‘de facto’ officers and entitled to
salaries for services actually rendered.”
Finally, the appointment signed by Finance Undersecretary Juanita D.
Amatong is dated July 8, 1994. Petitioner’s claim that the appointment
retro-acts to his assumption of office is not confirmed by the express
phraseology of the appointment itself, which states:
“Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A.
piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di
aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.”[12]
The subsequent appointment of petitioner to the position on July 8,
1994, cannot justify petitioner’s retention of the excess amount of
P61,308.00, which corresponds to the amount disallowed and ordered
refunded by COA representing the salary and RATA in excess of what was
due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.
[1] COA Decision No. 95-467.
[2] Annex “A,” Petition, Rollo, pp.16-19.
[3] P. 5, Petition.
[4] G.R. No. L-13753.
[5] 197 SCRA 253.
[6] COA Decision, Annex “A,” Petition, pp.16-19, Rollo.
[7] Animos vs. Philippine Veterans Affairs Office, 174 SCRA 214, 218.
[8] Philippine Law Dictionary, p.162.
[9] People vs. Gabitanan, 43 OG 3211; 8 App. Ct. Rep. 623.
[10] 197 SCRA 253.
[11] 107 Phil. 1000.
[12] Annex “B,” Petition, Rollo, p. 20.