RUBEN E. CELERIAN, PETITIONER, VS. HONORABLE FRANCISCO S. TANTUICO, JR., CHAIRMAN, COMMISSION ON AUDIT, RESPONDENT.

In this petition for review, petitioner Ruben E. Celerian assails the decision of the Commission on Audit
dated July 25, 1984 which
disallowed in audit his claim for payment of his salary as driver during the
period from August 1, 1982
to November 30, 1982 at
the rate of P494.00 per month or the total amount of P1,976.00.

Petitioner Ruben E. Celerian, a
non-civil service eligible, (he finished third year high school) was employed
as a service driver at the City Health Office in Pagadian City,
Zamboanga del Sur from December 1, 1980 to November 30, 1981 under a temporary appointment.  After his appointment expired, petitioner
still continued to discharge his duties as driver and in recognition of
services actually rendered, the City Mayor of Pagadian
City issued a memorandum dated December 1, 1981 whereby petitioner was detailed as a casual worker at the City
Health Office from December 1, 1981 to January 31, 1982.^[1]

Subsequently, upon
learning of his imminent replacement by Virgilio Padayao, another non-eligible, who was recommended to the
position of driver by Dr. Patrocinio Arao, an ex oficio
city health officer, petitioner lodged a protest dated January 10, 1982 with
the Office of the Regional Director of Zamboanga
City against the proposed appointee.^[2]

Despite the fact
petitioner’s original temporary appointment ended on November 30, 1981, it was
only on February 1, 1982 that Dr. Arao, with the
approval of City Mayor Filemon Pajares,
officially informed petitioner that his temporary appointment had expired on
November 30, 1981 and he was advised to desist from reporting for duty as his
services in that office would no longer be recognized.  The appointment of Virgilo Padayao
was made effective on the same day, February 1, 1982.  Upon
receipt of said termination advice the following day or on February
2,1982, petitioner
forthwith applied for and was paid his commuted vacation and sick leave credits
for the period beginning February 2, 1982 up to March 15, 1982.^[3]

From March
16, 1982 to April
15, 1982 and from June 1,
1982 to July 31,
1982, petitioner was
temporarily employed as assistant equipment operator at the Office of the City
Engineer in Pagadian City.^[4]

After six months or on June 3,
1982, petitioner’s
protest against the appointment of Padayao was
finally decided in his favor by
Dr. Milagros Fernandez,
Officer-in-Charge of the Regional Health Office in a letter addressed to the
Director of the Civil Service Commission, Zamboanga City.^[5] Subsequently, on July 26, 1982, the City Health Office received petitioner’s
“renewal appointment” dated September 1, 1981 and duly approved by the Civil Service Commission as temporary for the period from December 1, 1981 to
November 30, 1982.^[6] Said appointment was signed by the Regional
Health Director “by authority
of the Minister of Health.”^[7] Upon learning of the receipt of his renewal
appointment, petitioner twice asked for a copy thereof but his request was
refused by Belinda Bariuan, an administrative
assistant at the City Health Office.  Bariuan also reportedly barred him from reporting for work upon orders from her superiors. 
For such conduct, petitioner instituted an administrative complaint against Bariuan which was later dismissed by the Civil
Service Commission for want of substantial evidence.

On April 28,
1983, petitioner wrote the city health officer claiming his salary amounting to P1,976.00
corresponding to the period from August
1, 1982 to November 30,
1982 when he was allegedly
prevented from reporting for duty.^[8]
In support of his claim, petitioner cited the decision of the Auditor General in the similar case
of Natividad Casals^[9]
which stated:

“The facts and circumstances hereinbefore recited show that
Miss Casals was prevented against her will, and
for no valid cause, from performing the duties of the position to which she was legally
appointed.  Where a public officer is
wrongfully deprived of his office,
the rule is:  ‘Unless he waives his
rights by abandoning the Office he may recover his salary for the time he is
wrongfully prevented from entering the Office and performing its duties or for
the time he is kept out of Office by wrongful removal.  x x x.’ (Sec. 380, 43 Am. Jur. pp. 162–163).”^[10]

Petitioner’s claim
was forwarded by the City Mayor to the City Auditor for resolution. 
On August 26, 1983,
the City Auditor refused to give due
course to petitioner’s claim and indorsed the same to the Regional Director of
the Commission on Audit who disallowed the claim in
audit.^[11]

In its third indorsement dated July 25, 1984, respondent Commission on
Audit sustained the previous actions taken by the City Auditor of Pagadian City and the COA Regional Director
citing the following reasons: (1) petitioner’s original and renewed
appointments as driver were temporary, thus the same could be terminated at any
time; (2) temporary appointments are
terminable at the pleasure of
the appointing authority at any time, with or without cause,
and (3) petitioner had ceased to hold the position of driver from the time he
had notice of the termination of his employment.^[12]

In its 11th Indorsement, public respondent denied petitioner’s motion
for reconsideration.  Hence this
recourse.

The sole issue in this
case is whether or not a supposedly terminated employee is entitled to the
salary corresponding to the remaining period of his temporary
“renewed” appointment without rendering actual service therefor.  To answer
this, we need to resolve the corollary issue of who has the power to appoint
and consequently remove an employee of the city health office.

Under the Revised
Administrative Code, the power to appoint and remove subordinate
officers and employees, as in the case of petitioner, is vested in the
Secretary of Health.  Thus:

“SEC. 79 (D).  Power to
appoint and remove. – The Department Head, upon the recommendation of the chief
of the Bureau or office concerned, shall appoint all subordinate officers and
employees whose appointment is not expressly vested by law in the President of
the Philippines,
and may remove or punish them except as especially
provided otherwise, in accordance with the Civil Service Law.  x x x .”

Petitioner’s original temporary appointment as service driver
(copy thereof is not found in the records) covered the period from December 1, 1980 to November 30, 1981.  Thereafter, petitioner was allowed to
continue in his post as a detailed casual worker under a
memorandum order from the City Mayor. 
This order, which eventually turned out to be a superfluity, was
obviously made to enable petitioner to draw his salary, as petitioner’s renewal
appointment, although favorably recommended and forwarded to the Civil Service
Commission as early as September 1, 1981, had not yet been approved.

However, on the strength of another memorandum dated February 1, 1982 issued by City Health
Officer Dr. Arao and “approved by” the City
Mayor, petitioner was officially informed that his temporary appointment had
expired on November 30, 1981.

Had it been his appointment as a casual worker by the City Mayor
that was being terminated, then the act of the City Health­ Officer as
“approved by the Mayor” would have been valid under the basic
principle that the power to appoint carries with it the power to remove.^[13]
It should be noted, however, that when he was advised on February 2, 1982 not
to report for duty anymore, what was being terminated was his temporary
appointment as service driver in the City Health Office, to which position,
unbeknownst to the persons involved, petitioner would eventually be
re-appointed by the Regional Director, acting on behalf of the Secretary (then
Minister) of Health.  That new
appointment, being in accordance
with the organizational structure of the Department of Health, as provided in the Administrative Code then in
force, and in the absence of a protest, was effective from December 1, 1981 to November 30, 1982. 
Since as aforestated, the power to appoint the
service driver in the City Health Office pertained at that time to the Regional
Director, acting on behalf of the Secretary (then Minister) of Health, and not
the City Health Officer or the City Mayor, the “official” termination
of petitioner on February 2, 1982 was clearly not in accordance with law and
therefore ineffective.

Respondent Commission on Audit contends that petitioner had in
fact consented to his termination when he collected the cash equivalent of his
terminal leave and when he later worked at the City Engineer’s Office.

The argument is untenable. 
Petitioner should not be faulted for commuting his leave to which he was
rightfully entitled and for seeking employment elsewhere for his economic survival.  He was then of the honest belief that he had
been validly removed from his post as driver. 
He had clearly acted under a mistake of fact brought about by the delay
in the approval and transmittal of his “renewal appointment” papers.

Equally untenable is the
allegation that petitioner should not be compensated for the period from August 1, 1982 to November 30, 1982 since he did not render actual service based
on the “no work no pay” principle. 
Where it has been sufficiently shown, as in the instant case, that a
public official was wrongfully prevented from entering the office and carrying
but his duties, then he may recover his salary for the duration that he was
thus prevented from assuming his post. 
And that proposition should apply with equal force to a temporary
appointee because what is material is not the nature of the appointment but the
act of wrongful deprivation of office.

The Court cannot help but
admire the dogged determination and persistence shown by petitioner in pursuing
his claim even if it is for a
meager sum of P1,947.00.  Such action could only be taken to mean that
he truly believed in the merit
of his cause.

We rule for
petitioner.  Under both legal and equitable grounds, petitioner is entitled
to the payment of his salary
corresponding to the period from August 1, 1982 to the expiration of his term where by reason of a combination of
circumstances he was effectively prevented from carrying out his duties through
no fault of his own.

WHEREFORE, respondent Commission on
Audit’s disallowance of petitioner’s claim is hereby reversed and set
aside.  Respondent is directed to expedite the processing and
payment of petitioner’s salary
in the amount of P1,947.00.  This
decision is immediately executory.

So Ordered.

Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ.,
concur.

^[1]
Records, p. 30.

^[2]
Records, pp. 58-60.

^[3]
Records, pp. 31 and 93.

^[4]
Records, p. 24.

^[5]
Records, pp. 95-96.

^[6]
Records, p. 25.

^[7]
Ibid.  The records do
not indicate the reason for the delay in the processing and transmittal of
petitioner’s “renewal appointment”
papers.

^[8]
Records, p. 33.

^[9]
4th Indorsement dated April 5, 1955, GAO File No. 3.01.

^[10]
Records, p. 34.

^[11]
Records, pp. 42–44, 45.

^[12]
Decision No. 342, Records, pp. 83-85.

^[13]
Decano vs. Edu, No.
L-30070, August 29, 1980,
99 SCRA 311; Lacanilao vs. de Leon, G.R. No.
76532, January 26, 1987,
147 SCRA 266.