EVELIO B. JAVIER, RIZAL G. PAGTANAC, JOVITO C. PLAMERAS, JR., SILVESTRE E. UNTARAN, JR. AND ALFONSO V. COMBONG, JR., PETITIONERS, VS. HON. COURT OF APPEALS, MAXIMIANO SENTINA, J…

The issues raised in this petition for review on certiorari
revolve around the validity of Resolution No. 206 of the Provincial Board of
Antique abolishing the Office of the Provincial Engineer.

On 19 April 1974, Provincial Engineer Maximiano
Sentina and forty (40) officials and employees of the
Office of the Provincial Engineer filed a petition for mandamus and
damages against the entire Provincial Board of Antique. The petition was
anchored on the hypothesis that the abolition of the Office of the Provincial
Engineer was a circumvention of the constitutional mandate on security of
tenure and intended only to weed out provincial officials and employees who
opposed the Provincial Board’s candidacy in the 08th November 1971 elections.

Respondents, denying petitioners’ ascriptions, insisted that the
abolition of the Office of the Provincial Engineer was motivated instead by a
provision of Presidential Decree No. 17, which lowered the internal revenue
allotment to the road and bridge fund of the province from 50% to 17.5% thereby
leaving an inadequate allotment for materials, salaries and operating expenses
of the Office of the Provincial Engineer. Respondents averred that the power of
the provincial board to create an office carried with it the power to abolish
it; that administrative remedies had not been exhausted by petitioners; and
that mandamus was an improper remedy inasmuch as the power to appropriate funds
for the Office was not ministerial but within the sound judgment of
respondents.

In due course, the lower court^[1]
rendered a decision. Finding for respondents, the court held that the
“drastic decrease in the amount available for appropriation” was the
principal consideration that impelled the Provincial Board to abolish the
Office. The court a quo also took note of the resolutions of several municipal
councils in Antique calling the attention of the
Provincial Board to the neglect in the maintenance of provincial roads. The
lower court decreed:

“PREMISES CONSIDERED, the Court finds and so holds that
Resolution No. 206, Series of 1973, was validly enacted by the herein
respondents, composing the Provincial Board of Antique, and consequently
dismisses the herein petition. Likewise, the counterclaim is dismissed. Without costs.

SO ORDERED.”

A motion for the reconsideration of the decision of the lower
court having been denied, petitioners appealed to the Court of Appeals.

On 15 February 1977, the appellate court, reversing the court a
quo, held that “the passage of Resolution No. 206 was prompted in the main
by reasons other than those stated therein,” and that the evidence on
record “adequately justifie(d) the charge that personal and political animosities on
the part of petitioner Sentina, on (the) one hand,
and respondents, on the other, (had) caused the respondent Provincial Board to
enact said resolution.”^[2]
The appellate court rendered judgment,^[3]
thus:

“WHEREFORE, the judgment appealed from is hereby reversed and
set aside. In lieu thereof, another one is rendered (a) declaring Resolution
No. 206, Series of 1973 of the Provincial Board of Antique, to be null and
void; (b) granting the writ of mandamus, and ordering the respondents, or their
successors as members of the Provincial Board of Antique, to reinstate the
petitioners to the positions they held in the Office of the Provincial Engineer
as of June 30, 1973; and to appropriate the necessary amounts for the
maintenance of said office and the payment of the back salaries of the
petitioners from July 1, 1973 until the date of their reinstatement, minus the
sums any of the petitioners may have received from other employments in the
meantime; (c) ordering the respondents, jointly and severally, to pay each of
the petitioners the amount of P3,000.00, P2,000.00 and P500.00 for moral
damages, exemplary damages and attorney’s fees, respectively; (d) ordering the
lower court to conduct further proceedings to determine the amount allowable as
back salaries to each of the petitioners in accordance with the guidelines
stated above; and (e) ordering the respondents-appellees
to pay the costs.

“IT IS SO ORDERED.”

On 14 September 1978, the Court of
Appeals denied, for lack of merit, the motion for reconsideration.

The Provincial Board thereupon instituted the instant petition
for review on certiorari.

On 18 August 1982, during the pendency
of this appeal, Enrique A. Zaldivar, then incumbent
governor of Antique, filed a motion for leave to intervene,^[4]
which the Court granted.^[5]
Governor Zaldivar contended, in his memorandum in
intervention, that should the displaced officials and employees of the Office
be reinstated and paid their back salaries from 01 July 1973, it would be to
the great sacrifice of Antique’s development programs.^[6]

Critical in the instant petition are two basic questions: whether
or not the provincial board had the authority under the then existing laws to
enact the questioned resolution, and, in the affirmative, whether or not that
authority was legitimately exercised.

Private respondents claim that the abolition of the Office of the
Provincial Engineer is not only constitutionally infirm but also violative of General Order No. 3 issued shortly after the
proclamation of martial law in 1972. Private respondents explain that Section
9, Article XVII, of the 1973 Constitution –

“SEC. 9. All officials and employees
in the existing Government of the Republic of the Philippines shall continue in
office until otherwise provided by law or decreed by the incumbent President of
the Philippines, but all officials whose appointments are by this Constitution
vested in the Prime Minister shall vacate their respective offices upon the
appointment and qualification of their successors.” –

has been so framed as to allow the policy
and purpose behind General Order No 3 to continue, i.e., to consolidate in the
hands of the President, the power to appoint, dismiss and control all officials
of the government, both national and local, in line with the nature and spirit
of martial law.^[7]
Respondents quote a portion of the Journal of the Constitutional Convention
during its 287th plenary session of 25 November 1972, where their counsel,
Arturo Pacificador, a constitutional convention
delegate, stated on the floor during the discussions on Section 9, Article
XVII, of the 1973 Constitution, that “x x x the local government unit who may believe that an office
they (have) created is no longer necessary may petition the President to issue
a decree abolishing the same, but it will be beyond their power to abolish by
themselves said office in view of the clear’ mandate of the provision of the
Constitution.”^[8]

Undoubtedly, Section 9, Article XVII, of the 1973 Constitution
did convey an authority to carry out a valid reorganization in any branch or
agency of the Government,^[9]
recalling to mind General Order No. 3 issued on 22 September 1972, but this
general provision could not have meant or envisioned an absolute proscription
on local governments, if and when minded, from themselves creating or
abolishing positions, an authority that they theretofore had under the then
existing laws. One such law was Section 18 of Republic Act No. 5185 (Local
Autonomy Act), then still in force, which empowered provincial governments to
create, among other positions, the office of a provincial engineer. While the
law did not expressly vest on provincial governments the power to abolish that
office, absent, however, any contrary provision, that authority should be
deemed embraced by implication from the power to create it. Section 23 of the
Act, in fact, expressed that an “implied power of a province x x x (should) be liberally
construed in its favor” and “(a)ny
fair and reasonable doubt as to the existence’ of the power should be
interpreted in favor of local government and it 
(should) be presumed to exist.”

We must rule then that the power of the province
of Antique to abolish the office in
question did exist at the time.

The real debatable issue focuses on the real reasons behind the
questioned action of the provincial board. An abolition of office is not per se
objectionable but this rule carries a caveat that the act is done in good
faith.

We have scrutinized closely the records, most especially in this
case, in view of the disagreement between the trial court and the appellate
court on their factual findings; the result of our examination is that there,
indeed, appears to be evidence to support their own respective findings. On the
one hand, valid reasons have been shown that tend to substantiate the need at
the time for the abolition of the office in question by the Provincial Board.
Upon the other hand, it cannot be discounted that personal and political
motives did contribute in no small measure in that final decision of the board.
In sum, we see a situation where the abolition of the office could have well
been justified except for the convexity of circumstances attendant to the
decision process that clearly appear to have greatly influenced the final
action taken by the board. “We are not prepared, however, to conclude a
clear case of bad faith on the part of respondents.

Given the peculiar factual settings heretofore expressed, we
would have, under ordinary circumstances, simply issued an order of
reinstatement. The Court cannot, however, close its eyes to the multifarious
and significant events that have since taken place on, among other things the
national and local government structures, as well as their offices and
incumbents; the law itself, both constitutional and statutory; as well as the
personal and other circumstances of concerned parties, including no less than
petitioners and private respondents themselves. It is our considered view that
in lieu of an order for reinstatement of private respondents, an award for backwages, equivalent to five (5) years without
qualification or deduction, should be paid to said
respondents.

The above holding is not without precedent. The Court had an
opportunity to adjudicate similarly in Rubio, et al., vs. People’s Homesite & Housing Corporation, et al.^[10]
There, the petitioners, who were issued original and permanent appointments by
the PHHC in the Multi-Storey Tenement Projects, occupying regular and permanent
positions, were improperly separated from service in 1966 due to an alleged
abolition of positions. In awarding back salaries, in lieu of reinstatement,
this Court, speaking through now Chief Justice Andres R. Narvasa,
said:

“The Court therefore also declares that the Trial Court was
correct in directing reinstatement of the petitioners-employees to their former
positions, and the payment to them of back salaries and other benefits they would
otherwise have earned.

“This is however no longer an easy matter. In the first place,
it is doubtful if reinstatement as a remedy would be feasible in view of the
fact that more than twenty-three (23) years have already elapsed since the
petitioners-employees’ positions were abolished. Many of them will have found
employment elsewhere. Some may have passed away. Many others will have reached
retirement age or will no longer be employable on account of age or inadequacy
of qualifications, by this time. In the second place, as the PHHC and the other
respondents allege, it would be unfair to “permit a dismissed laborer to earn
back wages for all time,” or for a very long period of time, without allowing
the employer to prove the salaries the laborer had earned during the period of
his separation, or what efforts he had exerted to find gainful employment; x x x.”

In Antiporda vs. Ticao
(160 SCRA 40), the Court, citing previous cases, held that since the
reinstatement of an employee unjustly terminated was no longer feasible, the
latter should instead be awarded “backwages
equivalent to five (5) years without qualification or deduction.”

WHEREFORE, the
decision of the Court of Appeals is SET ASIDE. In lieu thereof, JUDGMENT is
hereby rendered ORDERING petitioners, or their incumbent successors in the
Provincial Government of Antique, to cause to be paid to private respondents
back salaries, computed as of the date of their removal, equivalent to five (5)
years without qualification or deduction. No costs.

SO ORDERED.

Feliciano (Chairman), Bidin, Romero, and Melo, JJ., concur.

^[1] Presided by Judge Celso L. Magsino.

^[2] Rollo, p. 94.

^[3]
Penned by Associate Justice Conrado M. Vasquez and
concurred in by Associate Justices Delfin Fl. Batacan and Jose B. Jimenez.

^[4] Rollo, p. 433.

^[5]
Resolution of September 29, 1982;
Rollo, p.
437.

^[6] Rollo, p. 442.

^[7]
Private Respondents’ Comment on the Petition, p. 3; Rollo, p. 258.

^[8] Rollo, pp.
262-263. The existence of this portion of the Journal of the Constitutional
Convention was belied by petitioners’ counsel, former Associate Justice of this
Court, Calixto O. Zaldivar,
who appended to petitioners’ reply brief, the letter of 1971 Constitutional
Convention President Diosdado Macapagal
stating that the 287th plenary session of the Convention was bald on November
26, 1972, not on November 25, 1972, that the purported interpellation or speech
of Arturo Pacificador during said plenary session did
not occur at all and that there were indeed reports about fabricated speeches
inserted in the Constitutional Convention Journal (Rollo, p. 343).

^[9] National
Land Titles and Deeds Registration
Administration v. Civil Service
Commission, 221 SCRA 145.

^[10]
185 SCRA 656, 22 May 1990.