G.R. No. 24989. July 21, 1967
PEDRO GRAVADOR, PETITIONER-APPELLEE, VS. EUTIQUIO MEMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL DISTRICT, THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIE…
RUIZ CASTRO, J.:
The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary
School in Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then
Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation from the service
on the ground that he had reached the compulsory retirement age of 65. The advice reads:
“According to your pre-war records as a teacher in the public
schools, including your Employee’s Record Card, which has just been found in
connection with the verification of the services of all school officials
including elementary school principals in this division, you were born on November
26, 1897. As of this date, therefore,
you are now 66 years, 8 months, and 22 days old.
“In view of the above, you are hereby advised of your
separation from the service effective immediately unless you can show valid
proof in the form of a baptismal or
birth certificate that you are below sixty-five of age today.
A
few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of the said
elementary school.
On August 31, 1964
the petitioner wrote the Director of Public Schools, protesting his forced
retirement on the ground that the date of his birth is not November 26, 1897 but December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A. Sienes, both of Amlan, Negros Oriental, in which
these two affiants declared that they knew that the petitioner “was born on
December 11, 1901, in the Municipality of Amlan,
formerly known as New Ayuquitan, Province of Negros Oriental, Philippines” because, “we were the
neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner’s parents], and that we
were present when said PEDRO GRAVADOR was born; furthermore, we were also invited
during the baptismal party a few weeks after the birth of said PEDRO
GRAVADOR.”
On October 19, 1964
the petitioner wrote to the Division Superintendent of Schools, reiterating his
claim that he had not reached the age of 65 and enclosing some papers in
support thereof.
On April 13, 1965
he filed this suit for quo warranto, mandamus and
damages in the Court of First Instance of Negros
Oriental. He asked the court to adjudge
him entitled to the office of principal of the Sta.
Catalina Elementary School
and to order payment to him of not only his back salaries but also damages in
the total amount of P52,400. Named as
respondents were Eutiquio Mamigo,
the District Supervisor, the Superintendent of Schools, the Director of Public
Schools and the Secretary of Education.
The respondents filed their answer, entered into a stipulation
of facts with the petitioner, and thereafter the case was submitted for
decision. The trial court concluded that
the petitioner was born on December
11, 1901 and accordingly granted his petition. Immediate execution was ordered, as a result
of which the petitioner was reinstated.
The respondents appealed
directly to this Court.
On July 6,
1967 the petitioner asked
for the dismissal of the appeal on the ground that the issues posed thereby had
become moot with his retirement from the service on December
11, 1966 and the
payment to him of the corresponding retirement benefits. We deem it necessary, however, to review the
trial court’s decision on the merits, considering that the computation of
retirement annuities is based, among other things, on the number of
years of service of a retiree,[1]
and that payment of benefits already made to the petitioner on the basis of
December 11, 1901 as the date of his birth would not exempt him from the
obligation to make a refund should this Court ultimately rule that he was
actually born on November 26, 1897, as the respondents claim.
The amount of annuity at the age of 57 is P20 plus, for each year
of service rendered after June 16, 1957, 1.6% of the average monthly salary
received during the last five years, plus, for each year of service rendered
prior to June 16, 1951, if such service lasted for at least seven years, 1.2%
of the average monthly salary. This amount is adjusted actuarially if
retirement is at an age other 57, but the maximum amount of the monthly salary
is no case more than 2/3 of the average monthly salary or P500, whichever is
the smaller amount.
The formula-
R = P20 + [(1.6% x M) x (1.2% x P) [A]
Where-
R = Monthly annuity at 57
A = Average monthly salary for the last 5 years
M = No. of years of service after June 16, 1951
P = No. of years of service before June 16, 1951 if at least 7 years
If retirement is at an age other than 57, the monthly annuity at
57 is first computed after which the amount obtained is multiplied by the actuarial
adjustment factor corresponding to the age at the retirement in accordance with
the following table:
Age Adj.
Factor Age Adj. Factor
52 years……….87 59 years………………………1.06
53 years……….89 60 years………………………1.09
54 years……….92 61 years……………………….1.12
55 years……….94 62 years……………………….1.16
56 years……….97 63 years……………………….1.20
57 years………1.00 years…………………………..1.24
58 years………1.03 65 years……………………….1.24
(GSIS Handbook of Information on Retirement Insurance, 14-15
[1965]
The controversy on the
petitioner’s date of birth arose as a result of the conflicting records of the
Division of Schools of Negros Oriental. On the one hand the pre-war records show his
date of birth to be November 26, 1897. These records consist of two Insular
Teacher’s Cards[2] and one Employee’s Record Card.[3] It is on the basis of these records that the
Superintendent of Schools determined the petitioner’s age to be 66 years, 8
months and 22 days on August 15, 1964.
On the other hand, the post-war records, consisting of on
Elementary Teacher’s Report Card,[4]
an Employee’s Record Card[5]
and an Employee’s Record of Qualifications,[6]
state that the petitioner was born on December
11, 1901. These are the
records on which the petitioner bases his claim.
The problem is aggravated
by two uncontroverted facts, namely, that the records
of the church where the petitioner was baptized were destroyed by fire, and
that the municipal civil register contains no record of the petitioner’s birth.
According to the trial court, the post-war records were intended
to replace the pre-war records and therefore the correct date of birth of the
petitioner is December 11, 1901. The court also took into account the verified
answer in a cadastral proceeding in the Court of First Instance of Negros Oriental,
dated March 15, 1924, filed
by the petitioner’s brother, Romulo Gravador, now deceased.
It is therein stated that the petitioner, said to be one of the
co-owners of a piece of land, was at the time 23 years old.
The respondents now contend that the trial court erred in placing
full reliance on the post-war records to establish the date of birth (December
11, 1901) of the petitioner. They argue
that these records were made only because it was thought that the pre-war
records had been lost or destroyed, but as some pre-war records had since been
located, the date contained in the pre-war records should be regarded as controlling; and that the finding
of the Superintendent of Schools that the petitioner was born on November 26,
1897 is an administrative finding that should not be disturbed by the court.
That the findings of fact of administrative officials are binding
on the courts if supported by substantial evidence, is a settled rule of
administrative law. But whether there is
substantial evidence supporting the finding of the Superintendent of Schools is
precisely the issue in this case. The
school official based his determination of the petitioner’s age on the pre-war
records in the preparation of which the petitioner does not appear to have
taken a part.[7]
On the other hand, the petitioner relies on post-war records which he personally
accomplished to prove the date of his birth.[8]
It is our considered view that the lower court correctly relied
upon the post-war records, for three cogent reasons.
In the first place, as Moran states, although a person can have
no personal knowledge of the date of his birth, he may testify as to his age as
he had learned it from his parents and relatives and his testimony in such
case is an assertion of a family tradition.[9]
Indeed, even in his application for back pay which he filed with the Department
of Finance, through the Office of the Superintendent of Schools, on October 7,
1948, the
petitioner stated that the date of his birth is December 11, 1901. He
repeated the same assertion in 1956 and again in 1960 when he asked the Government Service Insurance System and the
Civil Service Commission to correct the date of his birth to December 11, 1901.
In the second place, the
import of the declaration of the petitioner’s brother, contained in a verified
pleading in a cadastral case way back in 1924, to the effect that the
petitioner was then 23 years old, can not be ignored. Made ante litem
motam by a deceased relative, this statement
is at once a declaration regarding pedigree within the intendment and meaning
of section 33 of Rule 130 of the
Rules of Court.
Thus, December
11, 1901 is
established as the date of birth of the petitioner not only by evidence of
family tradition but also by the declaration ante litem
motam of a deceased relative.
Finally, the parties are agreed that the petitioner has a
brother, Constantino, who was born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The petitioner then could not have been born
earlier than Constantino, say in 1897 as the pre-war
records indicate, because Constantino is admittedly
older than he.[10]
Still it is argued that the petitioner’s action was prematurely
brought because he had not availed of all administrative remedies. This argument is without merit. Suits for quo warranto
to recover a public office must be brought within one year.[11]
Before filing this case the petitioner waited for eight months for the school
officials to act on his protest. To require
him to tarry a little more would obviously be unfair to him since on April 13, 1965, when this case was
filed, he had only four months left within which to bring the case to
court. There was neither manner nor form
of assurance that the decision of the Director of Public Schools would be forthcoming. The rule on exhaustion of administrative
remedies does not apply where insistence on its observance would result in the
nullification of the claim being asserted.[12]
ACCORDINGLY, the judgment a quo is affirmed.
No pronouncement as to costs.
Reyes, JBL, Makalintal, Bengzon, Zaldivar, Sanchez, Angeles,
and Fernando, JJ., concur.
Concepcion, C.J., and Dizon, J., did not take part.
[1]
See Government Service Insurance Act (Com. Act No. 186), sec. 11 (1936).
The amount of monthly annuity at
the age of 57
is P20 plus, for each year of service rendered after June 16, 1951, 1.6% of the
average monthly salary received during the last five years, plus, for each year
of service rendered prior to June 16, 1951, if such service lasted for at least
seven years, 1.2% of the average monthly salary. This amount is adjusted actuarially if
retirement is at an age other than 57, but the maximum amount of the monthly
salary is in no case more than 2/3 of the average monthly salary or P500, whichever
is the smaller amount.
The formula is ?
R = P20 + [(1.6% x M) + (1.2% x P] [A]
Where –
R = Monthly annuity at 57
A = Average monthly salary for
the last 5 years
M = No. of years of service
after June 16, 1951
P = No. of years of service
before June 16, 1951 if
at least 7 years
If retirement is
at an age other than 57, the
monthly annuity at 57 is first computed after which the amount obtained is multiplied by
the actuarial adjustment factor corresponding to the age at retirement in
accordance with the following table:
|
AGE |
ADJ. |
AGE |
ADJ. |
|
52 |
.87 |
59 |
1.06 |
|
53 |
.89 |
60 |
1.09 |
|
54 |
.92 |
61 |
1.12 |
|
55 |
.94 |
62 |
1.16 |
|
56 |
.97 |
63 |
1.20 |
|
57 |
1.00 |
64 |
1.24 |
|
58 |
1.03 |
65 |
1.24 |
(GSIS Handbook of Information on Retirement Insurance 14-15 [1965])
[2]
Stipulation of Facts (hereinafter cited as Stipulation), Annexes G & I.
[3]
Id., Annex
I-1.
[4]
Id., Annex
I-2.
[5]
Id., Annex
I-3.
[6]
Id., Annex
J.
[7]
Id., par. 7.
[8]
Id., par. 8.
[9]
5 M. Moran, Comments on the Rules of
Court 314 (1963).
[10]
Stipulation, Annex P.
[11]
E.g., De la Maza vs. Ochave, G.R. L-22336, May 23, 1967; Unabia vs.
City Mayor, 99 Phil. 253 (1956)
[12]
Alzate vs. Aldana,
G.R. L-14407, Feb. 29, 1960.