JESUS T. GESOLGON, ET AL., PETITIONERS AND APPELLEES, VS. ARSENIO H. LACSON, ETC. ET AL., RESPONDENTS AND APPELLANTS.

Appeal by respondents from the decision of the Court of First Instance of
Manila, dated December 8, 1959, the dispositive portion of which reads—

“For the foregoing considerations, the Court hereby renders judgment,
commanding the respondents to provide for the payment of back salary increases
to each of herein petitioners from February 1, 1953 up to October 31, 1955, and
from November 1, 1955 up to the present, in accordance with the standardization
of pay provided for in the various budget ordinances.”

The facts, embodied in the Stipulation of Facts entered into by the parties,
are substantially as follows:

Petitioners are members of the Detective Bureau of the Manila Police
Department, while respondents Lacson, Sarmiento and Erestain are, respectively,
the incumbent Mayor, Treasurer and Auditor for the City of Manila, and are sued
in their official capacity. On different dates in July, 1952, petitioners were
dismissed from the service by respondent mayor. Upon suits separately filed
questioning their dismissal, the Court of First Instance of Manila ordered
petitioners’ reinstatement, who were accordingly reinstated on September 14,
1955, except petitioner Rosendo Meneses, who was reinstated on March 14, 1956.
Thereafter, petitioners were paid their salaries for the period of their
separation at the same rate that they were receiving prior to dismissal.

Meanwhile, on October 31, 1952, during petitioners’ separation, respondent
mayor approved Ordinance No, 3538, the budget for the City of Manila for the
fiscal year 1952-1953, where provisions were made for salary increases to all
members of the Manila Police Department. Pursuant thereto, promotional
appointments, effective February 1, 1953, were extended to a majority of the MPD
police force.

On September 10, 1955, respondent mayor approved Ordinance No. 3667, the City
of Manila budget for the fiscal year 1955-1956, which provided further increases
in the salaries of the members of the Manila Police Department, pursuant to
which, promotional appointments were again extended to some members of the
Manila Police Department. On March 14, 1958 and on July 9, 1958, the City
budgets covering the fiscal years 1957-1958 and 1958-1959 were also
approved.

Petitioners have not enjoyed the full benefits of these ordinances, the
majority of them continuing to receive the same rate they had prior to their
dismissal, except five of them who have since then been granted
increases, but still short of those provided in Ordinance No. 3667 for the
fiscal year 1955-1956 (Exhibit “M” “T”). On August 11, 1958, petitioners
formally demanded from respondent mayor the payment to them of the salary
increases under the aforesaid ordinances, but this demand was denied by a letter
dated August 29, 1958 (Exhibits “S” & “T”).

In issuing the writ of mandamus prayed for below, the lower court acted on
the belief that the desired increases in petitioner’s salaries were not
promotions, but merely standardization or adjustment in pay; that consequently,
the issuance in favor of petitioners of promotional increases under the budget
ordinances aforesaid was a purely ministerial act on the part of the respondent
mayor and, assuming that he enjoyed discretion on the matter, that respondent
mayor committed a grave abuse of discretion in refusing to extend promotional
appointments to petitioners. The contrary propositions are maintained in this
appeal.

We are aware of no law, rule or regulation, and are pointed to none, which
grants to a civil service employee the right to automatically enjoy the salary
to which his item has been increased while occupying the same. That an increase
in the salary attached to a position is considered a promotion, has to be
conceded. Section 256 of the Revised Administrative Code provides:

“Where a new position is created or the salary of an existing position is
increased, appointment to such new position or promotion to the increased
salary shall not be effective, unless expressly so provided, prior to the
enactment of the law creating the new position or authorizing the higher salary;
and aside from exceptional cases approved as such by the proper Head of
Department, an appointment or promotion shall not be effective as of a date
prior to that upon which the appointment or promotion is actually made.”
(emphasis supplied)

Note that while the afore-quoted provision speaks of the time at which an
appointment shall be deemed effective, it is nevertheless apposite as to the
meaning and scope of promotion, which, under said provision, appears to include
increases in salary. Also, promotions in the service, as laid down by the Office
of the President in its Circular dated March 5, 1954 (see Administrative
Investigations by Pangramuyen & Daga, Appendix 37, p. 259), are limited to
“not more than two grades for promotions in the same position or from the
position to another without any increase in duties and responsibilities.”
(emphasis supplied). Even without a change in position a salary increase is
still a promotion. Where the law does not distinguish, the courts should
not.

But not only that. Executive Order No. 94, series of 1947, issued pursuant to
Republic Act No. 51, entitled “An Act Authorizing the President of the
Philippines to Reorganize Within 1 Year the Different Executive Departments,
Bureaus, Offices, Agencies and other Instrumentalities of the Government,
including the Corporations owned or controlled by it”, among others, classifies
positions into “Chiefs of Divisions, Chief of Sections, Supervisory Positions
& Positions of Equivalent Rank” on one hand, and “Subordinate Clerical or
Equivalent Positions” on the other. The first classification provides for
fifteen (15) grades with the corresponding salary rates ranging from P2,400.00
to P6,000.00 per annum; the second, divided into eight (8) grades, with salary
rates ranging from P1,440 to P2,280 per annum. The desired increases in
petitioners’ salaries definitely would involve ascent into the higher salary
grades as classified in the above Executive Order. Authorities have held that
“each salary group in the same classification of positions constitutes a
separate group of positions for the purpose of promotion.” (67 C.J.S., p.
220).

As a matter of established practice in the government, enjoyment of an
increased salary attached to an item has not been regarded as an absolute right
or an automatic acquisition.

“We take judicial notice of the practice being followed in the Philippine
Civil Service that an increase in the salary appropriated for a position does
not actually accrue to the holder of the position until and unless said holder
(of the position) has been given the increased salary. * * * An increase in
an appropriation or salary should not automatically entitle the holder of the
position to such increased salary; this increase may have possibly been
effected because of the greater importance or responsibility attached or to be
attached to the recreated position. But the fact that an employee holds that
position does not necessarily imply that he is fully entitled or qualified to
receive the increased salary provided for.” (Board of Directors of
Philippine Charity Sweepstakes Office vs. Alandy, et al., 110 Phil.,
1062; 60 Off. Gaz. 7200 (italics supplied.)

In official indorsements issued by the Office of the President (Exhibits “1”
& “2”), pertaining to appointments of policemen in the City of Manila, the
same view is maintained:

“* * * this Office is of the view that the increase of the salary attached to
an item occupied by an employee, whether made singly or in mass as in so-called
salary readjustments, does not automatically entitle the employee to receive the
full item. It is usual in the public service that an employee may be appointed
to receive a salary lower than that provided for in the item to be occupied by
him; it is only when the employee is promoted to the higher salary rank that he
may enjoy his full item. This is done only when the employee is deserving. * *
*”

Interpretations of administrative officials in charge of enforcing a law are
entitled to great weight and consideration (In Re Allen, 2 Phil., 630; Gov’t of
P.I. vs. Mun. of Binalonan, 32 Phil., 634; Guano vs. Fernandez, 55
Phil., 814, and others). Far from being automatic, enjoyment of an increased
salary in an item appears conditioned on a promotional appointment, pursuant to
law and as laid down by practice. And, corollarilly, it has been held that:

“An appointment to office is intrinsically an executive act, involving the
exercise of judgment and discretion.

“The power to appoint to office carries with it discretion the exercise of
the power and a valid appointment requires a choice by the appointing power of
the person appointed. * * *. The right to an appointive office rests on a due
and proper appointment. * * *” (67 C.J.S. 157; 158-59).

But discretion is not a blanket authority for its abusive exercise. Except as
to petitioners Eusebio Campillo and Jose Gonzales, we agree with the lower court
that respondent mayor committed a grave abuse of discretion in refusing to issue
promotional appointments to petitioners. As of March, 1959, their average length
of service spanned more than 22 years, individually ranging from 12 to 34 years
(Exhibit “AA”). Of petitioners, seven (7) received the same rate that they had
prior to their illegal dismissal, and while Ruben del Rosario, Eduardo Advincula
and Gorgonio Mariano now receive more than what they did prior to dismissal, it
is still short of that provided in the present salary scale (Exhibit “M”). And
yet, almost all of petitioner’s efficiency ratings have consistently been well
above 85% from the semester ending December, 1955 to December, 1958, except as
to Campillo and Gonzales, who appear to have obtained ratings much below 85% in
many semesters covered by the period. As to the rest, their ratings, as
observed, have been well above 85%, even during the semester ending June, 1952,
prior to their illegal separation from the service (the rating of Meneses for
the semester preceding his illegal dismissal was not available, but this is not
essential because his record upon reinstatement shows ratings above 85%).

No evidence of any pending administrative or criminal charges exists against
almost all of petitioners , at the time the ordinances providing for increased
salaries took effect and up to the present. Mariano and Gesolgon appear, to have
had pending administrative cases on the effectivity of said ordinances, but
these were dismissed on November 14, 1955 and October 3, 1956, respectively.
Saldaña was charged only on October 28, 1958, and even this stood as dismissed
as of March 24, 1959 (Exhibit “FF”). Clearly, these dismissed charges could not
have been valid impediments to promotion.

In fact, however, it is undisputed, and the records abundantly show, that
promotional appointments were extended to others who either had a pending case
(Exhibit “EE”; “CC”) or against whom there were records of administrative
charges subsequently dropped (Exhibits “EE”; “CC”; “CC-3”; “CC-4”; “CC-5”;
“CC-6”; “CC-7”; “CC-9”; “CC-12”; “CC-13”; “CC-15”). All of which show that even
respondent mayor did not consider dismissed charges an impediment to promotion.
Petitioners’ previous dismissal, which by court decisions were all held to have
been illegally effected, should not also bar their promotion. Moreover,
promotions have also been given to at least two policemen. Who, along with
petitioners, had been illegally dismissed but subsequently reinstated, and who
bow receive the rates established in the present salary scale (Exhibits “E”;
“Y”; “Z”; par. 15, Stipulation)

The circumstances under which petitioners have been refused promotional
appointments show discrimination. Promotions in the civil service, while a
discretionary function of the appointing power, must never be based on
considerations alien to the fitness of the employee and his performance of his
job as shown by records. Integrity in public service, as a goal yet to be
achieved, demands that government employees must not become parasitic pawns of a
whimsical bureaucracy. To tolerate these tendencies is to sanction further
demoralization of the public service and to encourage practices that would
undermine faith in popular government. At bar is a case where, to correct a
gross abuse of discretion, a palpable excess of authority resulting in manifest
injustice, mandamus will lie (see Villanueva vs. Araneta, et al.,
47 Phil., 836; Tavera-Luna Inc. vs. Nable, 67 Phil., 340; Antiquiera
vs. Baluyot, et al., 91 Phil., 213).

What clearly reveals the arbitrary and discriminatory nature of respondent
Mayor’s conduct is his refusal or failure to give any plausible reason for
denying increased salaries to petitioners who are civil service personnel.
Neither here nor in the court below has he attempted to justify his keeping
their salaries at such a level that a lieutenant (Gesolgon) still receive the
same pay that is now that of a sergeant. Such arbitrariness can not constitute
legal discretion.

But while petitioners have shown themselves entitled to promotion (except
Campillo and Gonzales whose ratings in many semesters fall below 85%), we see no
reason for ordering the payment to them of back salaries. Section 256 of the
Revised Administrative Code is explicit in laying down that appointments are not
to take effect prior to the date of appointment, unless so provided by the Head
of Department for exceptional reasons. Moreover, petitioners themselves aver
that these appointments have yet to be passed upon and approved by the Office of
the President thru proper channels. To order payment of back salaries is to
impose on a co-equal branch of the government.

Wherefore, the appealed decision is set aside; and another is entered
ordering the issuance of promotional appointments to herein petitioners (except
Eusebio Campillo and Jose C. Gonzales), within the limits allowed by law, and
the pertinent rules and regulations, effective from date of appointment; and,
without delay, to forward these appointments to the proper authorities for
approval pursuant to law. Without costs.

Bautista Angelo, Labrador,
Barrera, Paredes, Dizon, De Leon, and Natividad, JJ., concur.