NORBERTO DE LA REA, PETITIONER-APPELLEE, VS. HON. ABELARDO SUBIDO, IN HIS CAPACITY AS CIVIL SERVICE COMMISSIONER, AND HON. JOSE D. CALDERON, GENERAL MANAGER, NATIONAL MARKETING …

The following matters have been submitted to the Court for
resolution:

(1)  De le Rea’s second motion for clarification
and reconsideration filed on August 5,
1968 wherein he raises the following points:

“I

The holding of this Honorable Court that
for services rendered as auditor or corporate auditor, NAMARCO, prior to the effectivity of the disapproval of his appointment as such,
he was entitled to a salary of P15,600 per 
annum should be deemed modified by the change that transpired after the
commencement of the action and during the pendency of
this appeal, to wit:  sometime in 1965
the salary of the Assistant General Manager, NAMARCO, was in­creased from
P15,600.00 to P16,200.00 per annum effective retroactively as of July 1,
1964.  The salary of the auditor is in an
amount equal to the salary prescribed for the Assistant General Manager (Sec.
1, R.A. 2266);

II

The holding that after the effectivity of the disapproval of his appointment as
auditor or corporate auditor, NAMARCO, de la Rea was en­titled to a salary of
P11,400.00 per annum 
which was the old rate of salary of the, City Auditor, Pasay City, should be deemed modified by Rep. Act 4477
which automatically adjusted the salary of the said office from P11,400.00 per
annum to P15,000.00 per annum effective retroactively as of July 1, 1965;

III

Whatever excess in salaries that de la Rea
received from the NAMARCO was collected in good faith on a bi-monthly basis,
and, there­fore, the refund to be made by him should be similarly on a
bi-monthly basis;

IV

Since this Honorable Court found that de la
Rea is and has been actually out of the service illegally on account of the
pertinent decision and orders of the Civil Service Com­missioner, de la Rea is
entitled to back sala­ries from March 8, 1967 until reinstated, de­ducting therefrom, however, the penalty of sus­pension from office
for six (6) months imposed upon him; and

V

Since de la Rea is deemed reverted to his
former position as City Auditor, Pasay City, upon the
disapproval of his appointment as auditor or corporate auditor, NAMARCO, his
immediate reinstatement should be ordered pending the accounting to be made in
the lower court.”

(2)  The motion for reconsideration filed by the
Auditor General and the Commissioner of Civil Service on August 9, 1968 submitting the following issues:

(a)  That the penalty of suspension for six months,
without pay, imposed upon de la Rea by final decision of the Commissioner of
Civil Service in connection with admi­nistrative charges filed against him
should first be served by him – even assuming, arguendo,
that he should be “deemed to have reverted” to his former position as
Auditor of Pasay City, and that such period of
suspension is not compensable with the first six months of the period during
which de la Rea has actually been kept out of the service; (b) that de la Rea
was not removed from office nor kept out thereof by reason of the decision and
orders of the Commissioner of Civil Service but by reason of the writ of
preliminary injunction issued by this Court on March 7, 1967; (c) that de la
Rea should be deemed to have abandoned the position of Auditor of Pasay City when, after the Commissioner of Civil Service
had disapproved his promotional appointment as NAMARCO Auditor, and considered
him as still the Auditor of Pasay City, he refused to
accept or abide by the ruling.

We shall first take up the grounds upon which de la Rea relies in
support of his second motion mentioned above.

(1)  It is an admitted fact that de la Rea^rs
promotional appointment to the position of Auditor or Corporate Auditor of
NAMARCO carried a salary of P15,600 per annum – which
was the same annual salary, at that time, for the position of Assistant General
Manager of NAMARCO.  It is also a fact
that subsequently the latter’s salary was increased to P16,200
per annum effective retroactively as of July
1, 1964.  De la Rea claims
that he is entitled to this latter increased salary of the Assistant General
Manager of NAMARCO – to which the salary of the Auditor of the same entity
should be equal – during the time he had actually served as Auditor of
NAMARCO.  We find this to be without
merit.

The increase, by law or otherwise, of the annual salary of the
Assistant General Manager of NAMARCO did not automati­cally and correspondingly
increase that of its Auditor.  For this
purpose there was need of an appointment (promotional as to salary) fixing his
new compensation at the increased rate (Genato vs. Sychangco, G. R. No. L-23095, May 12, 1967).

(2)  For the same reason stated above, We find de la Rea’s second contention with respect to the
salary of the Auditor of Pasay City to be without
merit.

(3)  De la Rea’s third contention is that the
excess in salary that he is required to refund to NAMARCO having been
collected in good faith on a bi-monthly basis, the refund should be made on the
same basis, except for the amounts collected by him under our resolution of July 26, 1966 in G. R. No. L-26082
and the writ of execution pending appeal issued in his favor.  This is also untenable.  While he collected a portion of his salary on
a bimonthly basis, the fact is that, actually, he has had full enjoyment
of the total amount thereof.  We deem it
reasonable for him, therefore, to make the refund likewise in lump sum.

De la Rea next contends that since it has been ruled that he has
been kept out of the service by reason of the decision and orders of the Civil
Service Commissioner, he should be entitled to back salaries from March 8, 1967
until reinstated, deducting therefrom, however, the
salary cor­responding to the period of six months suspension imposed upon him
as mentioned heretofore.

We have said in our emended decision of July 31, 1968 that, due to the peculiar facts
involved, We were forced to rely upon, and were
actually guided by “broad considerations of fairness and equity” in
rendering our decision.

Compensation for services not actually rendered is not the
rule.  In the case of de la Rea, there is
no ground to say that NAMARCO and/or the Commissioner of Civil Service acted illegally
or in bad faith to keep him out of office. 
As stated heretofore in our original decision and in our resolution
deciding the first motion for reconsideration, de la Rea only became involved
in the struggle between the office of the Auditor General, on the one hand, and
the Commission of Civil Service, on the other, with respect to their respective
power over appointments of corporate auditors. 
The decision rendered and orders issued by the Commission of Civil
Service made effective by the writ of preliminary injunction issued by this
Court must be presumed to be valid until reversed.  As de la Rea chose to fight for what he
deemed to be his rights as an appointee of the Auditor General, he must bear
the consequences of his stand.  The
Court, therefore, feels that even the broad principles of equity in the light
of which we resolved the issues raised in these cases would hardly justify his
claim for back pay.

Lastly, as far as his reinstatement to the position of Auditor of
Pasay City is concerned, the same should be
accomplished only upon our decision in these cases becoming executory,
the accounting to be made in the lower court re­garding the refund provided for
in our original decision notwithstanding.

Coming now to the points raised in the motion of the Auditor
General and the Commissioner of Civil Service, We feel that what we have said
heretofore in this resolution, in the original decision and in the resolution
of July 31, 1968, is enough
to deny them.  Consequently, whether de
la Rea was removed or not, or was kept out of office as a result of the
preliminary injunction issued by us on March 7, 1967 are questions that need no
further discussion.

Lastly, We disagree – in the light of the facts herein involved –
with the contention of the Auditor General and the Commissioner of Civil
Service to the effect that de la Rea should be deemed to have abandoned the
position of Auditor of Pasay City because, after the
Commissioner of Civil Service had disapproved his promotional appointment as
NAMARCO auditor and considered him as still the auditor of Pasay
City, he refused to accept or abide by that ruling.  Abandonment of a public office by one duly
appointed thereto requires clear and strong proof.  There is none in this case where the
contention of NAMARCO and the Commissioner of Civil Service is based only upon
an inference drawn from the fact that de la Rea continued acting as auditor of
NAMARCO even after the Commissioner of Civil Service had disapproved his
appointment thereto and considered him still as auditor of Pasay City.  He was entitled, We
believe, to do so while involved in a legal proceeding wherein the validity or
correctness of the ruling of the Commissioner of Civil Service was the
issue.  On the other hand, the statement
made in the motion for reconsideration filed by NAMARCO and the Commissioner of
Civil Service to the effect that, upon the disapproval by the latter of de la
Rea’s appointment as NAMARCO auditor, said Commissioner considered him as still
the auditor of Pasay City strengthens our ruling that
upon such disapproval, de la Rea should be deemed reverted to the aforesaid
office.

Anent the claim that de le Rea’s return to the position of
auditor of Pasay City will cause difficulties because
other parties had been appointed to occupy the same in the meantime, all that
We need to say is that that is an administrative problem to be resolved by
proper authorities.  To be borne in mind
in connection therewith is the fact that those who were appointed to that
position while these cases were pending must naturally be charged with
knowledge of the pendency of said cases and that the
result could affect their own appointment.

WHEREFORE, both motions under consideration are hereby
denied.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Sanchez,
Castro, Fernando, and Capistrano, JJ., concur.