INOCENTES L. FERNANDEZ, PETITIONER, VS. MANUEL S. ALBA, MINISTER OF THE BUDGET, RESPONDENT.

This is a petition for mandamus to compel the respondent
Minister of the Budget to release sufficient amount for the payment of the
increase in the monthly annuity of petitioner pursuant to Republic Act No.
6031, out of the funds from the National Treasury not otherwise appropriated.

Petitioner, then municipal judge of Dumalinao,
Zamboanga del Sur, was receiving a monthly salary of Five Hundred Fifty
(P550.00) pesos under Republic Act No. 4533.

On August 4, 1969,
Republic Act No. 6031, providing among other things an increase in the salary
rates of municipal judges, was approved into law.  Thus, Republic Act No. 6031 entitled “AN
ACT TO INCREASE THE SALARIES OF MUNICIPAL JUDGES AND TO REQUIRE THEM TO DEVOTE
FULL TIME TO THEIR FUNCTIONS AS JUDGES,
TO CONVERT MUNICIPAL AND CITY COURTS INTO COURTS OF RECORD, TO MAKE FINAL THE
DECISIONS OF COURTS OF FIRST INSTANCE IN APPEALED CASES FALLING UNDER THE
EXCLUSIVE ORIGINAL JURISDICTION OF MUNICIPAL AND CITY COURTS EXCEPT IN
QUESTIONS OF LAW, AMENDING THEREBY SECTIONS 45, 70, 77 AND 82 OF REPUBLIC ACT
NUMBERED TWO HUNDRED AND NINETY SIX, OTHERWISE KNOWN AS THE JUDICIARY ACT OF
1948, AND FOR OTHER PURPOSES”, provides inter alia:

“SEC. 5.  Section eighty-two of the said Act, as amended, is hereby further amended to read as follows:

‘SEC 82.  Salaries of municipal
judges.  – Municipal
judges shall receive the following salaries per annum:

‘(a)  In municipalities which are the capitals of
their respective provinces, twelve thousand pesos each;

‘(b)  Of circuit courts and in the municipalities of
the first class and second class, ten thousand eight hundred pesos each;

‘(c)  In municipalities of the third class, fourth class and fifth class, nine thousand six hundred pesos each;

‘(d)  In
municipalities of the sixth class, seventh class and munici­pal districts and
other places not especially provided for by law, eight thousand four hundred
pesos each.’

“SEC. 6.  Such sums as may be necessary to provide
for the salary authorized and
salaries for positions created
under this Act are hereby
authorized to be appropriated out of any funds in the National Treasury not otherwise appropriated.  Thereafter,
such sums shall be included in the
annual General Appropriations Act.

“SEC.
7.  This Act shall take effect upon its approval.

“Approved, August 4,
1969”  (Underlining
supplied).

Hence, herein petitioner’s salary was supposed to be increased
from five hundred fifty (P550.00) pesos to eight hundred (P800.00) pesos a
month by virtue of paragraph (c), Section 82 of Republic Act No. 6031.  This was not the case however, as Republic
Act No. 6031 was not yet implemented.

On August 31, 1969, petitioner retired as municipal judge of Dumalinao, Zamboanga del Sur, and received a five-year lump sum as retirement
gratuity at the rate of five hundred fifty (P550.00) pesos per month under
Republic Act No. 4533 since as already
stated, Republic Act No. 6031 was not yet implemented.

On June 1, 1971, or two years after petitioner’s retirement,
Republic Act No. 6031 was implemented.

In September, 1974, or five (5) years after petitioner’s
retirement, he began receiving a monthly retirement gratuity of five hundred
fifty (P550.00) pesos under Republic Act No. 4533.

It appears from the
records that then Secretary, now Associate Justice, Vicente Abad
Santos, in a letter dated July 28, 1971, requested for authority to adjust the
salaries of eighty four (84) municipal judges who retired before the
implementation but after the enactment of Republic Act No.
6031.  This was reiterated on March 15,
1974 when then Chief Justice, now Batasang Pambansa Speaker, Querube C. Makalintal, wrote a letter to the Commissioner of the
Budget (now Minister of the Budget), pertinent portion of which reads:

“Republic Act No. 6031 provides, among others, increases in
the rates of salaries of municipal judges. 
Said Act which was approved on August
4, 1969, was implemented on June
1, 1971 only.  We concur with the Secretary of Justice that
these retirees are also entitled to the benefits provided for under Republic Act 6031.

“In order to adjust the under­payment of their terminal
leaves, it is requested that the amount of P94,303 be
released under personal services out of the amounts certified to accounts
payable during the fiscal years 1969-70 and 1970-71, which were already
reverted to surplus adjustment under Journal Vouchers Nos. 1512112 and 1443904,
dated June 30, 1972 and June 30, 1973, respectively, pursuant to Section 5 of General Auditing
Office Circular No. 80, dated July 1, 1963. 
Likewise, it is requested that the amount of P85,200
be released out of the Retirement Gratuity Fund under Item No. 62, page 391 of Presidential Decree 233, to pay the
underpayment of retirement gratuities of those who retired under Republic Act
1616, as amended.  Moreover, the amount
needed to cover the adjustment of retirement gratuities of those who retired
under Republic Act 5095, in the amount of P1,173,000, is requested for release,
pursuant to the provision of Section 2 of said Act” (pp. 6-7, rec., under­lining
supplied).

On May 12, 1975,
petitioner addressed a letter to the President requesting that his monthly
retire­ment gratuity be increased from P550.00 to P800.00 citing as legal basis
the increased rates authorized by Republic Act No. 6031.

In said letter,
petitioner stated among others the following:

“Mr. President, I believed that Presidential Decree No. 644
is not applicable in my case as Act No. 6031 was already approved and effective
when I retired but was not only implemented.  It is injustice and not in equity that now
I am receiving a monthly
pension of P550.00 based on Act No. 4533 which was already amended and
superseded by Act No. 6031 when I retired” (p. 5, rec., underscoring
supplied).

The letter was endorsed
to the Budget Commission (now Ministry of the Budget) for comment and recom­mendation
(p. 8, rec.).

On August 22, 1975, the
Commissioner of the Budget sent his 2nd Indorsement
to the Presidential Staff, pertinent portions of which state:

“Republic Act No. 6031, an enabling act, merely authorized an
appropriation whose nature the Supreme Court in the case of GENATO, et al. vs.
SY-CHANGCO (SCRA, Vol. 20, p. 12) ruled that: 
‘x x x an appropriation is per se
nothing more than a legislative authorization prescribed in the Constitution x x x the said authorization
requires implementation of allocation of funds x x
x.’ Pur­suant to Republic Act No. 992 (Revised Budget Act), authorized
appropriation shall be programmed and allotted quarterly.  There being no appropriation under Republic
Act No. 6031, there was nothing to program and to allot.  The current appropriations decree, PD No.
733, has not also provided funds under Republic Act No. 6031, to cover
adjustment of terminal leaves, retirement gratuities and salary differentials
of municipal judges for the period from August 4, 1969 to May 31, 1971.

“The within request,
if allowed, will generate identical requests of retirees from all branches of
the government to have their retirement gratuities based on the higher salaries
authorized under laws enacted while they were still in the service but
implemented only after their retirement from the service.  The inevitable after-effect will be bigger
appropriation which the government will have to provide, but which it cannot
afford, to cover adjustment of terminal leaves, retire­ment gratuities and
salary differentials” (p. 9, rec.).

On April 3, 1979,
petitioner sent a letter to the late Chief Justice Fred Ruiz Castro stating
among others that “according to Section 2 of Republic Act No. 5095 under
which we retired, these benefits can be paid from any fund in the National
Treasury not otherwise appropriated” (p. 10, rec.).  The aforesaid letter was endorsed to the
Minister of the Budget on April 21, 1979, which was allegedly not
answered (p. 11, rec.).  However, in the
comment filed by the Solicitor General, it was stated that herein petitioner
sent a second letter to the President on July 5, 1979 reiterating his claim for
the increase of his monthly pension from P550.00
to P800.00.  The said letter was
allegedly referred by the Supervising Presidential Staff Officer to the
Minister of the Budget for comment.  In
allegedly replying thereto, the Minister of the Budget reiterated his previous
position denying the claim.

Hence,
the instant petition.

The main issue is whether
petitioner is entitled to the benefits provided for under Republic Act No. 6031
which was enacted during his tenure of office but was implemented after his
retirement.

Upon review of the
records, WE find the con­tention of petitioner herein devoid of merit.

While WE are not
unmindful of the sad plight of herein petitioner who is now very old and
sickly, and who has spent the best years of his life in the government service
as municipal judge of Dumalinao, Zamboanga
del Sur, and who has to make do with his meager
monthly pension of P550.00 in this time of economic hardship, nonetheless, WE
hold that payment to him of whatever increase in his monthly annuity, terminal
leave and other retirement gratuity benefits brought about by the enactment of
Republic Act No. 6031 increasing the salary rates of municipal judges, must
yield to the overriding economic consideration of availability of funds which
the government must set aside for the purpose.

As pointed out by the
Commissioner of the Budget in his 2nd indorsement
dated August 22, 1975 to the Presidential Staff, Republic Act No. 6031 did not
actually appropriate the funds to cover adjustment of terminal leaves,
retirement gratuities and salary differentials of municipal judges for the
period from August 4, 1969 to May 31, 1971. 
Section 6 of said Act No. 6031 merely “authorized to be
appropriated out of any funds in the National Treasury not otherwise
appropriated”, “such sums as may be neces­sary to provide for the
salary authorized x x x
under this Act x x x“.

There being no
appropriation, herein petitioner cannot compel the Minister of the Budget to
release sufficient amount for the payment of the increase in the monthly
annuity of petitioner herein pursuant to Republic Act No. 6031 because
“such allocation entails the exercise of judgment and discretion which
cannot be controlled by mandamus”
(Genato vs. Sy-Changco, 20
SCRA 12, 14).

Finally, in the case of
Board of Administrators, PVA vs. Agcaoili, 58 SCRA
72, 77, WE had the occasion to state that:

“But even if we have thus defined the precise terms, nature
and scopes of the entitlement of the respondent Abrera,
for the guidance of the petitioner, we nevertheless refrain from ordering the
petitioner to pay the amount of P120.00 per month from January 1972 that is due
to the respondent by virtue of the mandate of Section 9 of Republic Act 65, as
amended by Republic Act 5753, because the Government has thus far not
provided the necessary funds to pay all valid claims duly approved under
the authority of the said statute” (italics supplied).

The petitioner and all other retirees similarly situated should
appeal to the law-making authority for the appropriation of the necessary
funds.

WHEREFORE, THE PETITION FOR MANDAMUS IS HEREBY
DISMISSED.  NO COSTS.

Aquino, Concepcion,
Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Relova, and
Gutierrez, Jr., JJ., concur.

Fernando, C.J., Teehankee, and Abad Santos, JJ., no part.