GENE M. TULAWIE, PETITIONER AND APPELLEE, VS. THE PROVINCIAL AGRICULTURIST OF SULU, RESPONDENT AND APPELLANT.

On August 20, 1959, the petitioner-appellee Gene M. Tulawie was
extended by the Secretary of Agriculture and Natural Resources
(hereinafter referred to as the Secretary) a temporary appointment as
Assistant Provincial Agriculturist of Sulu, upon the recommendation of
the Director of Agricultural Extension (referred to as Director). This
appointment was approved by the Commissioner of Civil Service and was
forwarded to the Provincial Agriculturist of Sulu.

On November 7, 1959, the said petitioner appeared before the
Provincial Agriculturist of Sulu, herein respondent-appellant, and
requested that he be allowed to enter upon the performance of his
duties as per his appointment. But the said respondent-appellant asked
him to come back and start working on the 16th of that month.

A few days thereafter, or on November 10, 1959, the
respondent-appellant Provincial Agriculturist sent a telegram to the
Director of Agricultural’ Extension, reading: “personnel PLANTILLA
RECEIVED FROM YOUR OFFICE LISTED BENJAMIN LAJOT AS ASSISTANT PROVINCIAL
AGRICULTURIST STOP GENE TULAWIE ALSO HAS APPOINTMENT SAME POSITION
PLEASE WIRE CLARIFICATION.”

In answer to this telegram the Director wrote the
respondent-appellant telling him that it was Gene Tulawie, and not Mr.
Lajot, who had been appointed to the position in question. Pertinent
portion of the letter reads:

“* * * please be informed that Mr. Tulawie has been
appointed Asst. Provincial Agriculturist and not Mr. Lajot. This is
because of the insistence of the Governor for his appointment to this
position as according to him. the former is a native of Sulu, a Moslem
and son of the former Governor of that province and was, therefore, in
a bettor position to teach the farmers in modern agriculture. Those are
stated in his letter fluted August 20, 1959, copy hereto inclosed.
Although Mr. Tulawie is not eligible his appointment is authorized
under Sec. 23 of Rep. Act 2260 under the paragraph on cultural
minorities.

“Mr. Lajot was listed in the plantilla because
this office had a plan to propose him for appointment to Assistant
Provincial Agriculturist. At that time h

“For this reason and following the policy
initiated by the former Director of this Bureau that the Provincial
Governor be given initiative in filling positions in the Agricultural
Fund, this office recommended Mr. Tulawie for the position of Asst.
Provincial Agriculturist of that province.”

On November 12, 1959, respondent-appellant wrote a confidential letter to the Director, pertinent portion of which reads:

“Now the election is over. It is significant because the results
will have a direct beating on the appointment of Mr. Tulawie us well as
the future relationship of our office with the newly elected members of
the Provincial Board. Before I explain this point further, permit me to
mention that the appointment of Mr. Tulawie was made possible thru the
personal intervention of Governor Fernandez inspite of the fact that
Mr. Lajot a Sr. Teacher of Agriculture eligible was recommended for the
position. This would have been all right if Governor Fernandez was
reelected. In fact. I asked Mr. Tulawie to report on November 15, 1959
but since Governor Fernandez was not reelected, the picture so to
speak changed. The elected Governor Atty. Benjamin Abubakar as well as
the Vice Governor and two Board Members who belong to the Liberal Party
were personally attacked during the election campaigns especially the
Governor and Vice Governor elect by Atty. Rene Tulawie, the brother of
Gene, both sons of Ex-Governor Arolas Tulawie, Campaign Manager of the
NP during the election. I am sure these two Governor elects will not
just take the attacks on their persons lying down and will see in the
appointment of Mr. Gene Tulawie if he will be allowed to report for
duty immediately their chance to hit back which may also boomerang on
us for allowing him to become a personnel of our office inspite of the
results of the election.

*        *        *        *        *        *        *

”In view of the above developments, I would
recommend therefor the following if I may be permitted to do so
without forgetting also the fact that your say on the matter is final:

“1.
That Mr. Tulawie must be directed not to report for duty until after
the new provincial administration takes over on January 1, 1960.

“2.
That Mr. Tulawie can only report for duty after he can present a
written note or letter from the new Governor concurring his
appointment.”

On November 16, 1959, the respondent-appellant received wire from
the Regional Administrator instructing him to defer the assumption of
office of the petitioner-appellee. Petitioner’s entrance into office
was thus deferred for months.

On June 10,1960, Tulawie sent a letter to the respondent-appellant
Provincial Agriculturist, reiterating his desire to assume office. A
week thereafter, the said petitioner-appellee took his oath of office
before a Justice of the Peace, on the same day executing a statement of
his assets and liabilities. Not withstanding his oath, however, he was
not allowed to assume office. Feeling aggrieved, he filed with the
Court of First Instance of Sulu a petition for mandamus with
preliminary injunction against the Provincial Agriculturist of Sulu,
alleging that he had been unlawfully excluded from the enjoyment of an
office to which he is entitled; that he suffered damages amounting to
no less than Pl,102.10 and that he has no other plain, speedy and
adequate remedy in the ordinary course of law.

After the filing of the case, the Provincial Fiscal who was
requested to appear for the respondent-appellee wired the Secretary
informing him about it and at the same time inquiring if the said
Secretary was really objecting to Tulawie’s assumption to office and if
so, what grounds.

The said telegram was on June 24, 1960 indorsed to the Director of
Agricultural Extension, for comment. On July 5, 1960, the telegram was
forwarded to the Secretary in an indorsement, to wit:

“* * * In view of the representations made to this
Office by Provincial Agriculturist Yanga and the objection of the
Governor to the proposed appointment of Mr. Gene Tulawie as Assistant-Provincial Agriculturist whose salary will be paid from the
Provincial Agricultural Fund and who has not yet taken his oath of
office although his appointment has already been approved by all
authorities concerned, this office in order to insure the cooperation
of the local Government authorities in the administration of the
agricultural extension service in that province has seen fit to shift
Mr. Tulawie to the position of Provincial Rural Clubs Agent with
assignment in the province of Agusan at a higher salary range. Anyway
this item to which Mr. Tulawie will be shifted is still in the
provincial level.

“Mr Tulawie was appointed as Asst.
Provincial Agriculturist mainly because he is an agricultural college
graduate and although he has no civil service eligibility his
employment with respect to this requirement has been dispensed with
under the clause of cultural minorities, in line with the policy of
Congress to accelerate their integration, under Sec. 23 of Republic Act
No. 2260. Provincial Agriculturist Yanga has accordingly been
instructed to return to Jolo and advise the Provincial Fiscal of the
action proposed to he taken by this Office.”

This indorsement was returned to the Director of Agricultural Extension, duty noted.

On August 8, 1960, the said Director again forwarded the papers to
the Secretary, together with a copy of an indorsement sent by the said
Director to the Provincial Agriculturist of Sulu in connection with the
proposed change in the designation of Mr. Tulawie from Assistant
Provincial Agriculturist to Provincial Rural Clubs Agent of Agusan. The
Director, in returning the papers to the Secretary, reiterated the
inadviaability of petitioner’s occupying the position of Asst.
Provincial Agriculturist of Sulu and recommended that h!s appoinment as
such be revoked and another one be prepared to designate him Rural
Clubs Agent for Agusan.

In a 5th Indorsement, also dated August 8, 1960, the Secretary
manifested to the Director that he had no objection to the revocation
of petitioner-appellee’s questioned appointment. In line therewith,
said petitioner was appointed Provincial Clubs Agent, with a higher
salary. The respondent-appellant was duly notified of this arrangement.

The trial of the case thus proceeded and after its submission for
decision, the lower court, on April 17, 1961, rendered judgment
declaring that petitioner had been duly appointed and had qualified in
office as Assistant Provincial Agriculturist of Sulu and is entitled to
collect all the emoluments pertaining to the office from June 17, 1960
until he shall have entered upon the performance of his duties as
Provincial Rural Clubs Agent of Agusan.

The respondent, represented by the Solicitor General, has appealed.

The appeal is without merit.

Firstly, there is nothing in the argument of the Solicitor General
that the petitioner-appellee has not exhausted all administrative
remedies before coming to court. It is quite clear from the facts that
the case had reached the Secretary of Agriculture and Natural Resources
and the latter being the alter ego of the President, his action bears
the implied approval of the latter (Dimaisip vs. Court of Appeals, 106
Phil., 237; 57 Off. Gaz., 4425; Villena vs. Secretary, 67
Phil. 451). The principle is that failure to appeal a decision of a
Department Secretary to the President is not a violation of the
exhaustion rule.

Going into the merits of the case, there is no question that when
the petitioner-appellee appeared before the respondent-appellant for
the first time on November 7, 1959, intendedly to assume office, he was
holding a valid appointment as Assistant Provincial Agriculturist of
Sulu, said appointment having been duly signed by the Secretary and
approved by the Commissioner of Civil Service. The appointment states
that it shall take effect upon entrance to duty of the appointee. Under
these circumstances, it is very plain that the petitioner-appellee
Tulawie had the right to occupy the questioned position and it was
ministerial upon the respondent Provincial Agriculturist to allow him
after the taking of his oath of office. The reason relied upon by the
respondent, that petitioner-appellee did not belong to the political
party of the governor elect, is not a valid reason for denying him the
right to the office.

It is true that a temporary appointment may be withdrawn at any
time. Note, however, that the Secretary here who is the appointing
authority, did not actually withdraw or cancel the questioned
appointment. Instead, he appointed the petitioner-appellee as
Provincial Rural Clubs Agent of Agusan. If this latter appointment may
constitute an implied revocation of the previous one, nevertheless, it
would not alter the fact that the petitioner-appellee was illegally
deprived of his right to that office. Indeed, he had his rights under
the first appointment until it was revoked. There is likelihood that if
the respondent-appellant did not take it upon himself to bar
petitioner’s entrance into the duties of the position of Assistant
Provincial Agriculturist, the latter would have taken his oath earlier
than June 17, 1960. As a matter of fact, he was ready as early as
November 7, 1959.

Considering the circumstances, we are inclined to award in favor of
the petitioner-appellee the emoluments of the office of Assistant
Provincial Agriculturist of Sulu for six months, which is the maximum
period for a temporary appointment (Sec. 24[d], Rep. Act 2260)^[1],
starting upon the date of his oath. However, if within this period the
petitioner-appellee had entered into the performance of his office as
Rural Clubs Agent, he is entitled to said emoluments only up to that
time that he assumed the latter position.

With the only modification that he is entitled to collect the
emoluments of the office of Assistant Provincial Agriculturist for a
period not exceeding six months, the judgment of the lower court is
hereby affirmed. Costs de oficio.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Paredes and Makalintal, JJ., concur.

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^[1] This supersedes Sec. 682 of the Revised Administrative Code which fixes the maximum period to three months.