G.R. No. 14956. February 27, 1961
TEOFILO ARCEL AND JUAN CALINAWAN, PETITIONERS AND APPELLANTS, VS. SERGIO OSMEÑA, JR., ET AL., RESPONDENTS AND APPELLEES.
BARRERA, J.:
and/or damages was instituted in the Court of First Instance of Cebu by
Teofilo Arcel and Juan Calinawan, to compel Sergio Osmeña, Jr., in his
capacity as mayor, the municipal board, the treasurer, and the auditor,
all of Cebu City, to reinstate petitioners to the positions of watchman
and skilled laborer, respectively and to pay their back salaries. The
respondents in due time filed their answer. Thereafter, the parties,
through their respective counsel, submitted to the court a stipulation
of facts which, insofar as pertinent to the present case, is hereunder
partly reproduced:
“1. The petitioner,
Teofilo Arcel, a USAFEE Veterans of the Second World War, was
originally appointed to the unclassified position of Watchman in the
Office of the City Treasurer, Cebu with compensation at the rate of
P2.00 per day, effective January 4, 1947, by former Mayor of Cebu City,
Vicente S. del Rosario. Later on, his daily wage was increased to P2.70
per day, effective July 1, 1951 by then Acting Mayer of Cebu City,
Pedro Elizalde. Finally, his daily wage was increased to P4.00 per day
effective July 1, 1952, by former Mayor of Cebu City, Jose V.
Rodriguez, to comply with the provisions of the Minimum Wage Law.* * * * * * *
“2.
On December A, 1956, while the petitioners, Teofilo Arcel, now insured
since July 31, 1947, and Juan Calinawan, also insured since July 1,
1952, were discharging the duties assigned to them in the service of
the Government of the City of Cebu, Ordinance No, 220, the General Fund
Budget of the City of Cebu for the fiscal year beginning July 1, 1956,
and ending June 30, 1957, was enacted and approved. Said Ordinance
reduced the total number of Watchmen from Item ’59. Two (2) Watchmen at
P4.00 each per day under the Office of the City Treasurer, (as provided
for by the previous General Fund Budget of the City of Cebu under
Ordinance No. 200) to Item ’40. One (1) Watchman at P1,440.00 per
annum, under Department of Finance, Administrative Division, Property
Section, in the Office of the City Treasurer, City of Cebu. * * *“3.
On January 5, 1956, the petitioners received from the respondent Sergio
Osmeña, Jr. two (2) similarly worded termination and removal orders,
the one for Teofilo Arcel, dated December 31, 1956, and the other, for
Juan Calinawan, dated December 29, 1956, both substantially, to wit:‘Sir:
In view of the abolition of your position pursuant to Ordinance No.
220, as published in two (2) newspapers of general circulation in the
City, please be advised that your services are hereby terminated at the
close of office hours on December 31, 1956.
Immediately
upon receipt of the aforementioned orders, the petitioners pleaded with
the respondent Mayor, Sergio Osmeña, Jr., to reconsider and withdraw
said orders; but the respondent refused to withdraw said termination
orders.* * * * * * *
“5. On January 10, 1957, while serving the government, the petitioners
received two (2) similarly worded ‘appointments’ from the respondent
Mayor, both dated December 29, 1956, the one ‘appointing’ Teofilo Arcel
as ‘Clerk-Collector in the Office of the City Treasurer, Municipal
License Section, Municipal License and Realty Tax Division, with
compensation at the rate of P1,440.00 per annum, effective January 1,
1957, and good until revoked under, Finance Department, chargeable to
Item No. 98, General Fund Budget, 1956-57.’“6. On December 29, 1956, while the petitioners were still in
the service, the respondent Mayor Sergio Osmeña, Jr., issued an
‘appointment’ to Catalino Lañete ‘appointing’ him as ‘Watchman,
Property Section, Administrative Division, in the Office of the City
Treasurer of Cebu, City of Cebu, with compensation at the rate of
P1,440.00 per annum effective January 1, 1957, and good until revoked
chargeable to Item No. 40, Property Section, Administrative Division,
in the Office of the City Treasurer of Cebu, City of Cebu, with
compensation at the rate of P1,440.00 per annum effective January 1,
1957, and good until revoked, chargeable to Item No. 40, Property
Section, Administrative Division, Finance Department, General Fund
Budget, 1956-57’ * * *. The above-mentioned ‘appointees’, consequently,
qualified for their positions. Thereafter, the respondents City
Treasurer and City Auditor, stopped the payment of the salaries of
petitioners.“The parties respectfully submit the foregoing
Stipulation of facts as their partial evidence of the case, hereby
reserving unto themselves the right to present additional evidence they
may deem proper to arrive at a 5ust determination of the present
action.”
Upon the above facts and other
additional evidence presented during the trial, the court below
rendered judgment dismissing the petition, on the ground that the
Municipal Board of Cebu has authority to reduce the number of, or even
abolish, positions in the service of the city government; that there is
no evidence that in the exercise of such discretion by the Board, there
was fraud or abuse of power; that petitioners are not civil service
eligibles; that the City of Cebu, which is an indispensible party, was
not included in the complaint, that there was non-exhaustion of
administrative remedies, petitioners having failed to bring the action
of the Mayor to the attention of the President. From this judgment,
only Teofilo Arcel has appealed by means of the instant petition for
certiorari.
It appears from the abovequoted stipulation of
facts that in the budget of the City of Cebu for the fiscal year
beginning July 1, 1956 and ending June 30, 1957, the total number of
Watchmen was reduced from “Two (2) Watchmen at P4.00 each per
day” to “One (1) Watchman at P1,440.00 per annum” (No. 2, Stipulation);
that neither of the occupants of the original two positions of watchman
in the 1955-56 was appointed to the same item, as reduced, thus
resulting in their being separated from the service; and that said
position, Item 40 of the 1956-57 budget, was filled in by a certain
Catalino Lañete on December 29, 1956 (No. 6, Stipulation). The issue
involved in the instant case, therefore, is whether the dismissal of
the occupants of the original positions, Teofilo Arcel specifically, is
lawful or not.
There is no question that under its charter
(Com. Act 58), the Municipal Board of Cebu has authority to reduce the
number of or even abolish positions in the service of the said city
government. Such right, however, it was declared by this Court, can not
be used to discharge employees in violation of the civil service law.[1] (Gacho vs. Osmeña, 103 Phil., 837; 55 Off. Gaz., [48] 1007; Briones vs. Osmeña, 104 Phil., 588).
It is true that, as found by the trial court, there is no evidence that
petitioner Teofilo Arcel is a civil service eligible. However, it
appearing that Arcel was appointed to an unclassified position (No. 1,
Stipulation), his lack of eligibility did not remove him from the
operation and protection of the civil service law. As pronounced by
this Court in the case of Lacson vs. Romero, 84 Phil., 740; 47
Off. Gaz. 1778, Article XII of the Constitution, which contains the
provisions on Civil Service, contemplates the entire Civil Service
regardless of whether the employees embraced therein belong to the
classified or unclassified service. Officers and employees in the
unclassified service, like those occupying classified positions, are
protected by the aforementioned provision of the organic law. As Item
No. 40 of the 1956-57 budget is not an entirely new item but
the same item in the 1955-56 budget, although reduced, previously
occupied by Teofilo Arcel and Narciso Cabarrubias, who were in the
service since January 4, 1947, and December 18, 1953, respectively,
said position should have been filled in by Teofilo Arcel who is the
more senior of the two and is preferred for being a veteran,[2] instead of putting in a new appointee.
Herein respondents also capitalize on the fact that prior to his
separation, petitioner Arcel was extended an appointment as
Clerk-Collector in the Office of the City Treasurer, with compensation
at P1,440.00 per annum, which Arcel refused to accept, to bolster their
contention that the City Mayor did not abuse his descretion in
terminating petitioner’s services. In this regard, it may be pointed
out that the appointment being offered to petitioner was made
“effective January 1, 1957, and good until revoked”. Clearly, it is
temporary appointment the tenure of which is dependent upon the will of
the appointing power. Petitioner Arcel is, therefore, justified in
refusing to accept the same. Having been occupying a permanent position
from which he was removed, his acceptance of a temporary appointment
thereafter would have barred him from questioning his previous
dismissal.[3]
Anent the matter of non-inclusion of the City of Cebu as
party-respondent in the petition for reinstatement and back wages, we
have already held that the naming of the City Mayor, Municipal Board,
City Treasurer, and City-Auditor in the petition is substantial
compliance with the law.[4] There is no reason in this instance why we should depart from said ruling.
In view of the foregoing considerations, the decision of the lower
court is set aside and another one hereby entered, ordering the City
Mayor of Cebu City to reinstate herein petitioner to the position of
Watchman in the Office of the City Treasurer, then Item 40 in the
1956-57 budget, or the corresponding item in the current budget, with
back salaries. Without costs. So ordered.
Bengzon, Acting C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Paredes, and Dizon, JJ., concur.
[1]
“No officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law.” (Art. XII, Sec. 4,
Philippine Constitution; also Sec. 694 Revised Administrative Code, as
amended by Com. Act 177 and Rep. Act 2260.)
[2] Rep. Act 68, as amended by Rep. Act 154; Ribo vs. Orais, 49 Off. Gaz., 5386; Inocente vs. Ribo, 94 Phil., 652; 50 Off. Gaz., 4853.
[3] Pinullar vs. President of the Senate, 104 Phil, 131; 65 Off. Gaz., 3488; Roque vs. President of the Senate, L-10949, July 25, 1958.
[4] Velasco vs. Court of Appeals 108 Phil., 449.