PoliRev_PublicOfficers

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of the Court of Appeals in CA-G.R. No. 39670,[2] declaring null and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo City.

The facts are:

Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980.[3]

In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position, thus:

COMPARATIVE DATA SHEET

OFFICE: PMO ILOILODIVISION: RES. MANAGEMENT DIVISIONPOSITION: DIVISION MANAGER

REQUIRED CS ELIG.: CS PROF / RA 1080

CANDIDATES ELIGIBILITY xxx TOTAL

1. MONSERATE, JULIETA CS Prof. xxx 79.52. ANINO, RAMON 1st grade xxx 703. TEODOSIO, APRIL PD 907 (CPA) xxx 674. MORTOLA, DARIO CS Prof. xxx 675. ESPINOSA, AMALIK Bar xxx 63.5

6. PERFECTO, BASCOS RA 1080 xxx 59.5

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed[5] respondent to the position of Manager II (Resource Management Division). On even date, respondent assumed office and discharged the functions thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA) approved her appointment.

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting against respondents appointment. The PPA Appeals Board, in a Resolution[6] dated August 11, 1988, sustained the protest and rendered ineffective respondents appointment based on (1) CSC MC No. 5, s. 1988, Par. 3;[7] (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; [8] and (3) Civil Service Eligibility. These grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:

WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources Management Division Manager of the Port Management Office of Iloilo.

On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9] (entitled Creation of the PPA Managers Pool), dated September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list and placed instead the name of petitioner as Manager II, Resource Management Division. In effect, the Special Order implemented the August 11, 1988 Resolution of the PPA Appeals Board.

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated November 2, 1988.[10] She questioned her replacement under PPA Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino; [11] (3) she was not informed of the reasons behind her replacement; and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in the said proceedings.

On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy of PPA Special Order No. 492-88[12] dated October 21, 1988, also issued by General Manager Dayan. This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager.

Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her earlier appeal/request for clarification, respondent filed on November 25, 1988 a precautionary appeal[13] with the CSC. She manifested that as of said date (November 25), she has not yet been furnished a certified copy of the PPA Appeals Board Resolution.

On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer dated October 1, 1988.[14] It was also during this time when she learned that PPA General Manager Dayan had just issued petitioners appointment dated October 21, 1988 as Manager II in the Resource Management Division effective February 1, 1988.

On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Aninos appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution. In the meantime, she assumed the position of Administrative Officer.

Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995, dismissed respondents appeal, thus:

It is well-established rule that an appointment, although approved by this Commission, does not become final until the protest filed against it is decided by the agency or by the Commission. Although Monserate had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x.

Monserates claim that she is more qualified than Anino is not relevant to the issue before this Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question.

Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-6640 dated October 24, 1995.

In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General Manager and petitioner Anino.

On June 20, 1997, the Court of Appeals rendered a Decision [16] nullifying the twin Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly

issued due to lack of proper notice to respondent with respect to the Boards proceedings. It concluded that her reassignment from the position of Manager II, Resource Management Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. The dispositive portion of the Court of Appeals' Decision reads:

THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and directing the reinstatement of the petitioner to the position of Resource Management Division Manager II.

SO ORDERED.

Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On November 30, 1997, petitioner Anino retired from the government service.[17]

Petitioners ascribe to the Court of Appeals the following errors:

I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.

II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATES APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC.

III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD.[18]

The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino from her position as Manager II, Resource Management Division, and demoted as Administrative Officer.

Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not charged of any administrative case. Rather, she was displaced from her position as an aftermath of the PPA

reorganization, authorized by law, the implementation of which having been carried out with utmost good faith.

Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the PPA Appeals Board which sustained petitioner Aninos timely protest against respondents appointment. Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not become final until the protest filed against her was favorably decided in her favor by the CSC. In support of this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), which provides inter alia:

SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position. However, the appointment, together with the decision of the department head, shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance, otherwise the appointment becomes ineffective thereafter. Likewise, such appointment shall become ineffective in case the protest is finally resolved against the protestee, in which case, he shall be reverted to his former position.

Petitioners also contend that the head of an agency, being the appointing authority, is the one most knowledgeable to decide who can best perform the functions of the office. The appointing authority has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law. Consequently, the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation of the Civil Service Law and Rules.

The petition is unmeritorious.

In the first place, the PPA reorganization in 1988 has nothing to do with respondents demotion from the contested position of Manager II, Resource Management Office (SG-19), to the lower position of Administrative Officer (SG-15). Antithetically, it was precisely because of the said reorganization that respondent applied to the higher position of Division Manager II. In fact, the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6) contenders to the said post. Respondent was eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its functions. This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA.

Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is further shown by the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan:

1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent Monserate from the PPA Managers pool-list;

2. Appointment of respondent, dated October 1, 1988, to the position of Administrative Officer;

3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned respondent to the position of Administrative Officer; and

4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager II, Resource Management Division, effective February 1, 1988.

Therefore, contrary to petitioners claim, respondent was demoted, not by reason of the PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Aninos protest against respondents appointment.

Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA Appeals Board which upholds the appointment of Ramon A. Anino as Resource Management Division Manager. But how can it uphold his appointment when he was not yet appointed then? It bears stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months after August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated differently, the PPA Appeals Board could not uphold an appointment which was not yet existing.

Equally questionable are the grounds for respondents demotion stated in the August 11, 1998 Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility. These grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion.

We uphold the Court of Appeals finding that the August 11, 1998 PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent. As aptly held by the Appellate Court:

In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC

No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil service eligibility.

"x x x

To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as Manager. x x x.

With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and recommendation of her appointment as Manager II, passed several committees created by the PPA. x x x.Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03. x x x.

On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility.

She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private respondents appointment as Division Manager even if on August 11, 1988, he was not yet extended any appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).

Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void. She was never notified of any proceeding; she was not furnished either a copy of the resolution.What she received instead was a Special Order dated September 29, 1988 already ordering her demotion. She was not at all given the oppurtunity of defending herself before the Appeals Board.

x x x.

In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988 Resolution of the Appeals Board. She did not even know that she was demoted until after she received a copy of the of the Special Order No. 479-88.[19]

From all indications, it is indubitable that substantial and procedural irregularities attended respondents demotion from the position of Manager II, Resource Management Division, to the lower position of Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as

Manager II, is a patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil Service Commission,[20] this Court emphasized that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service.[21] However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her. Respondents security of tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.[22]

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division, it merely restored her appointment to the said position to which her right to security of tenure had already attached. To be sure, her position as Manager II never became vacant since her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is null and void ab initio."[23]

We now delve on the backwages in favor of respondent.

The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Aninos appointment to the contested position. Also, petitioner Anino retired from the service on November 30, 1997.

In this respect, while petitioner Aninos appointment to the contested position is void, as earlier discussed, he is nonetheless considered a de facto officer during the period of his incumbency.[24] A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.[25] InMonroy vs. Court of Appeals,[26] this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jureofficer for

whatever salary he received during the period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive Secretary,[27] this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus:

x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office.

In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith.This rule, however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of Manager II up to his retirement on November 30, 1997.

SO ORDERED.

Vitug (Acting Chairman), Panganiban, and Carpio, JJ., concur.Melo, J. (Chairman), on official leave.

G.R. No. L-23258 July 1, 1967

ROBERTO R. MONROY, petitioner, vs.HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.

E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.Sycip, Salazar, Luna and Associates for respondents.

BENGZON, J.P., J.:

Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question.

Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.1äwphï1.ñët

This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of Appeals.

Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do — review a resolution of the Commission on Elections. The submission is without merit.

The Constitution empowers the Commission on Elections to

x x x decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials x x x . 2 (Emphasis supplied)

And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections," necessarily its adjudicatory or quasi-judicial powers are likewise limited to controversies connected with the "conduct of elections." This phrase covers all the administrative process of preparing and operating the election machinery so that the people could exercise their right to vote at the given time.4 All questions and controversies that may arise therefrom are to be resolved exclusively by the Commission, subject to review only by the Supreme Court.

However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question or controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's certificate of candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a controversy before the Commission, the same did not and could not possibly have anything to do with the conduct of elections. What the parties are actually controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections for the seat of Congressman for the first district of Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of municipal mayor or not. The only interest and for that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the running candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the certificate announcing his candidacy for Congressman, as far as the Commission could be concerned, petitioner was no longer interested in running for that seat. The matter of his having forfeited his present position and the possible legal effect thereon by the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the cognizance of the courts.

Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev. Election Code providing that —

Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy,"

makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:

x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable since the vacating is expressly made as of the moment of the filing of the certificate of candidacy x x x . (Emphasis supplied)

Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere appears that the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals expressly found as a fact that the certificate in question was filed with petitioner's knowledge and consent. And since the nature of the remedy taken by petitioner before Us would allow a discussion of purely legal questions only, such fact is deemed conceded.5

Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was subsequently ousted as a result of an election contest. These peculiar facts called for the application of an established precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest filed against him and can retain the compensation paid during his incumbency. But the

case at bar does not involve a proclaimed elective official who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case can not therefore be applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de factothe salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title"6 that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers.7 The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office.8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner. So ordered.

CIVIL SERVICE COMMISSION, Petitioner, vs.ENGR. ALI P. DARANGINA, Respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated October 7, 20041 and March 18, 20052 in CA-G.R. SP No. 71353.

The undisputed facts are:

Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment as director III, Plans and Policy Services, in the same office. On October 11, 2000, the Civil Service Commission (CSC), petitioner, approved this temporary appointment effective for one (1) year from the date of its issuance unless sooner terminated.

On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the temporary appointment of respondent on the ground that he is not a career executive service eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC disapproved his appointment, stating that respondent could only be replaced by an eligible.

On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18, 2001 sustaining the termination of his temporary appointment but ordering the payment of his salaries from the time he was appointed on September 25, 2000 until his separation on October 31, 2000.

Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No. 02-439 granting the same with modification in the sense that respondent should be paid his backwages from the time his employment was terminated on October 11, 2000 until September 24, 2001, the expiration of his one year temporary appointment.

On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement as director III and payment of backwages up to the time he shall be reinstated.

On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondent’s motion for partial reconsideration being a second motion for reconsideration which is prohibited.

Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure to implead the OMA Executive Director and the incumbent of the disputed position.

Respondent filed a motion for reconsideration.

In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February 27, 2004, thus:

ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the assailed CSC resolutions are hereby MODIFIED in that the petitioner is reinstated to his post to finish his 12-month term with backwages from the date of his removal until reinstatement.

SO ORDERED.

The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution dated March 28, 2005.

Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying the appointment status of public officers and employees in the career service, reads:

SEC. 27. Employment Status. – Appointment in the career service shall be permanent or temporary.

(1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.

(2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility:Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the position to which he is being appointed, including the appropriate eligibility.3 Differently stated, as a rule, no person may be appointed to a public office unless he or she possesses the requisite qualifications. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee.4 In Cuadra v. Cordova,5 this Court defined a temporary appointment as "one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power." Thus, the temporary appointee accepts the position with the condition that he shall surrender the office when called upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same Code, the term of a temporary appointment shall be 12 months, unless sooner terminated by the appointing authority. Such pre-termination of a temporary appointment may be with or without cause as the appointee serves merely at the pleasure of the appointing power.6

Under the Revised Qualifications Standards prescribed by the CSC, career executive service eligibility is a necessary qualification for the position of director III in Plans and Policy Services, OMA. It is not disputed that on September 25, 2000, when respondent was extended an appointment, he was not eligible to the position, not being a holder of such eligibility. Hence, his appointment was properly designated as "temporary." Then on October 31, 2000, newly-appointed OMA Executive Director Tomawis recalled respondent’s temporary appointment and replaced him by appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A game of musical chairs then followed. Sani was subsequently replaced by Tapa Umal, who in turn, was succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees were also disqualified for lack of the required eligibility.

The Court of Appeals ruled that such replacements are not valid as the persons who replaced respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to serve the remaining term of his 12-month term with salaries.

This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited.7

Moreover, in Achacoso8 cited earlier, this Court held that when a temporary appointee is required to relinquish his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no longer any remaining term to be served . Consequently, he can no longer be reinstated.

As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary during the entire twelve-month period in spite of the fact that he served only from September 25, 2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the Court of Appeals. Considering that respondent’s employment was validly terminated on October 31, 2000, he is ordered to refund the salaries he received from that date up to September 24, 2001.

No costs.

SO ORDERED.

LIGHT RAIL TRANSIT AUTHORITY, Petitioner, vs.PERFECTO H. VENUS, JR., BIENVENIDO P. SANTOS, JR., RAFAEL C. ROY, NANCY C. RAMOS, SALVADOR A. ALFON, NOEL R. SANTOS, MANUEL A. FERRER, SALVADOR G. ALINAS, RAMON D. LOFRANCO, AMADOR H.POLICARPIO, REYNALDO B. GENER, and BIENVENIDO G. ARPILLEDA, Respondents.

x-----------------------------x

G.R. No. 163881 March 24, 2006

METRO TRANSIT ORGANIZATION, INC., Petitioner, vs.COURT OF APPEALS, PERFECTO H. VENUS, JR., BIENVENIDO P. SANTOS, JR., RAFAEL C. ROY, NANCY C. RAMOS, SALVADOR A. ALFON, NOEL R. SANTOS, MANUEL A. FERRER, SALVADOR G. ALINAS, RAMON D. LOFRANCO, AMADOR H. POLICARPIO, and REYNALDO B. GENER, Respondents.

D E C I S I O N

PUNO, J.:

Before us are the consolidated petitions of Light Rail Transit Authority (LRTA) and Metro Transit Organization, Inc. (METRO), seeking the reversal of the Decision of the Court of Appeals directing them to reinstate private respondent workers to their former positions without loss of seniority and other rights and privileges, and ordering them to jointly and severally pay the latter their full back wages, benefits, and moral damages. The LRTA and METRO were also ordered to jointly and severally pay attorney’s fees equivalent to ten percent (10%) of the total money judgment.

Petitioner LRTA is a government-owned and controlled corporation created by Executive Order No. 603, Series of 1980, as amended, to construct and maintain a light rail transit system and provide the commuting public with an efficient, economical, dependable and safe transportation. Petitioner METRO, formerly Meralco Transit Organization, Inc., was a qualified transportation corporation duly organized in accordance with the provisions of the Corporation Code, registered with the Securities and Exchange Commission, and existing under Philippine laws.

It appears that petitioner LRTA constructed a light rail transit system from Monumento in Kalookan City to Baclaran in Parañaque, Metro Manila. To provide

the commuting public with an efficient and dependable light rail transit system, petitioner LRTA, after a bidding process, entered into a ten (10)-year Agreement for the Management and Operation of the Metro Manila Light Rail Transit System from June 8, 1984 until June 8, 1994 with petitioner METRO.1The Agreement provided, among others, that –

1. Effective on the COMMENCEMENT DATE, METRO shall accept and take over from the AUTHORITY [LRTA] the management, maintenance and operation of the commissioned and tested portion of the [Light Rail Transit] System x x x [par. 2.02];

2. The AUTHORITY [LRTA] shall pay METRO the MANAGEMENT FEE as follows x x x [par. 5.01];

3. In rendering these services, METRO shall apply its best skills and judgment, in attaining the objectives of the [Light Rail Transit] System in accordance with accepted professional standards. It shall exercise the required care, diligence and efficiency in the discharge of its duties and responsibilities and shall work for the best interest of the [Light Rail Transit] System and the AUTHORITY [LRTA] [par. 2.03];

4. METRO shall be free to employ such employees and officers as it shall deem necessary in order to carry out the requirements of [the] Agreement. Such employees and officers shall be the employees of METRO and not of the AUTHORITY [LRTA]. METRO shall prepare a compensation schedule and the corresponding salaries and fringe benefits of [its] personnel in consultation with the AUTHORITY [LRTA] [par. 3.05];

5. METRO shall likewise hold the AUTHORITY [LRTA] free and harmless from any and all fines, penalties, losses and liabilities and litigation expenses incurred or suffered on account of and by reason of death, injury, loss or damage to passengers and third persons, including the employees and representatives of the AUTHORITY [LRTA], except where such death, injury, loss or damage is attributable to a defect or deficiency in the design of the system or its equipment [par. 3.06].

Pursuant to the above Agreement, petitioner METRO hired its own employees, including herein private respondents. Petitioner METRO thereafter entered into a collective bargaining agreement with Pinag-isang Lakas ng Manggagawa sa METRO, Inc. – National Federation of Labor, otherwise known as PIGLAS-METRO, INC. – NFL – KMU (Union), the certified exclusive collective bargaining representative of the rank-and-file employees of petitioner METRO.

Meanwhile, on June 9, 1989, petitioners LRTA and METRO executed a Deed of Sale where petitioner LRTA purchased the shares of stocks in petitioner METRO.2However, petitioners LRTA and METRO continued with their distinct and separate juridical personalities. Hence, when the above ten (10)-year Agreement expired on June 8, 1994, they renewed the same, initially on a yearly basis, and subsequently on a monthly basis.

On July 25, 2000, the Union filed a Notice of Strike with the National Conciliation and Mediation Board – National Capital Region against petitioner METRO on account of a deadlock in the collective bargaining negotiation. On the same day, the Union struck. The power supply switches in the different light rail transit substations were turned off. The members of the Union picketed the various substations. They completely paralyzed the operations of the entire light rail transit system. As the strike adversely affected the mobility of the commuting public, then Secretary of Labor Bienvenido E. Laguesma issued on that same day an assumption of jurisdiction order3directing all the striking employees "to return to work immediately upon receipt of this Order and for the Company to accept them back under the same terms and conditions of employment prevailing prior to the strike."4

In their memorandum,5Department of Labor and Employment Sheriffs Feliciano R. Orihuela, Jr., and Romeo P. Lemi reported to Sec. Laguesma that they tried to personally serve the Order of assumption of jurisdiction to the Union through its officials and members on July 26, 2000, but the latter refused to receive the same. The sheriffs thus posted the Order in the different stations/terminals of the light rail transit system. Further, the Order of assumption of jurisdiction was published on the July 27, 2000 issues of the Philippine Daily Inquirer6and thePhilippine Star.7

Despite the issuance, posting, and publication of the assumption of jurisdiction and return to work order, the Union officers and members, including herein private respondent workers, failed to return to work. Thus, effective July 27, 2000, private respondents, Perfecto Venus, Jr., Bienvenido P. Santos, Jr., Rafael C. Roy, Nancy C. Ramos, Salvador A. Alfon, Noel R. Santos, Manuel A. Ferrer, Salvador G. Alinas, Ramon D. Lofranco, Amador H. Policarpio, Reynaldo B. Gener, and Bienvenido G. Arpilleda, were considered dismissed from employment.

In the meantime, on July 31, 2000, the Agreement for the Management and Operation of the Metro Manila Light Rail Transit System between petitioners LRTA and METRO expired. The Board of Directors of petitioner LRTA decided not to renew the contract with petitioner METRO and directed the LRTA management instead to immediately take over the management and operation of the light rail transit system to avert the mass transportation crisis.

On October 10, 2000, private respondents Venus, Jr., Santos, Jr., and Roy filed a complaint for illegal dismissal before the National Labor Relations Commission (NLRC) and impleaded both petitioners LRTA and METRO. Private respondents Ramos, Alfon, Santos, Ferrer, Alinas, Lofranco, Policarpio, Gener, and Arpilleda follwed suit on December 1, 2000.

On October 1, 2001, Labor Arbiter Luis D. Flores rendered a consolidated judgment in favor of the private respondent workers8–

WHEREFORE, judgment is hereby rendered in favor of the complainants and against the respondents, as follows:

1. Declaring that the complainants were illegally dismissed from employment and ordering their reinstatement to their former positions without loss of seniority and other rights and privileges.

2. Ordering respondents Metro Transit Organization, Inc. and Light Rail Transit Authority to jointly and severally pay the complainants their other benefits and full backwages, which as of June 30, 2001 are as follows:

1. Perfecto H. Venus, Jr. P247,724.36

2. Bienvenido P. Santos, Jr. 247,724.36

3. Rafael C. Roy 247,724.36

4. Nancy [C.] Ramos 254,282.62

5. Salvador A. Alfon 257,764.62

6. Noel R. Santos 221,897.58

7. Manuel A. Ferrer 250,534.78

8. Salvador G. [Alinas] 253,454.88

9. Ramon D. Lofranco 253,642.18

10. Amador H. Policarpio 256,609.22

11. Reynaldo B. Gener 255,094.56

TOTAL P2,746,453.52

3. Ordering respondents Metro Transit Organization, Inc. and Light Rail Transit Authority to jointly and severally pay each of the complainants the amount of P50,000.00 as moral damages.

4. Ordering respondents Metro Transit Organization, Inc. and Light Rail Transit Authority to jointly and severally pay the complainants attorney’s fees equivalent to ten percent (10%) of the total money judgment.

SO ORDERED.

The complaint filed by Bienvenido G. Arpilleda, although initially consolidated with the main case, was eventually dropped for his failure to appear and submit any document and position paper.9

On May 29, 2002, on appeal, the NLRC found that the striking workers failed to heed the return to work order and reversed and set aside the decision of the labor arbiter. The suit against LRTA was dismissed since "LRTA is a government-owned and controlled corporation created by virtue of Executive Order No. 603 with an original charter"10and "it ha[d] no participation whatsoever with the termination of complainants’ employment."11In fine, the cases against the LRTA and METRO were dismissed, respectively, for lack of jurisdiction and for lack of merit.

On December 3, 2002, the NLRC denied the workers’ Motion for Reconsideration "[t]here being no showing that the Commission committed, (and that) the Motion for Reconsideration was based on, palpable or patent errors, and the fact that (the) said motion is not under oath."

On a petition for certiorari however, the Court of Appeals reversed the NLRC and reinstated the Decision rendered by the Labor Arbiter. Public respondent appellate court declared the workers’ dismissal as illegal, pierced the veil of separate corporate personality and held the LRTA and METRO as jointly liable for back wages.

Hence, these twin petitions for review on certiorari of the decision of public respondent appellate court filed by LRTA and METRO which this Court eventually consolidated.

In the main, petitioner LRTA argues that it has no employer-employee relationship with private respondent workers as they were hired by petitioner METRO alone pursuant to its ten (10)-year Agreement for the Management and Operation of the Metro Manila Light Rail Transit System with petitioner METRO. Private respondent workers recognized that their employer was not petitioner LRTA when their certified exclusive collective bargaining representative, the Pinag-isang Lakas ng Manggagawa sa METRO, Inc. – National Federation of Labor, otherwise known as PIGLAS-METRO, INC. – NFL – KMU, entered into a collective bargaining agreement with petitioner METRO. Piercing the corporate veil of METRO was unwarranted, as

there was no competent and convincing evidence of any wrongful, fraudulent or unlawful act on the part of METRO, and, more so, on the part of LRTA.

Petitioner LRTA further contends that it is a government-owned and controlled corporation with an original charter, Executive Order No. 603, Series of 1980, as amended, and thus under the exclusive jurisdiction only of the Civil Service Commission, not the NLRC.

Private respondent workers, however, submit that petitioner METRO was not only fully-owned by petitioner LRTA, but all aspects of its operations and administration were also strictly controlled, conducted and directed by petitioner LRTA. And since petitioner METRO is a mere adjunct, business conduit, and alter ego of petitioner LRTA, their respective corporate veils must be pierced to satisfy the money claims of the illegally dismissed private respondent employees.

We agree with petitioner LRTA. Section 2 (1), Article IX – B, 1987 Constitution, expressly provides that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters." Corporations with original charters are those which have been created by special law and not through the general corporation law. Thus, in Philippine National Oil Company – Energy Development Corporation v. Hon. Leogrado, we held that "under the present state of the law, the test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporations created by special charter are subject to its provisions while those incorporated under the general Corporation Law are not within its coverage."12There should be no dispute then that employment in petitioner LRTA should be governed only by civil service rules, and not the Labor Code and beyond the reach of the Department of Labor and Employment, since petitioner LRTA is a government-owned and controlled corporation with an original charter, Executive Order No. 603, Series of 1980, as amended.

In contrast, petitioner METRO is covered by the Labor Code despite its later acquisition by petitioner LRTA. InLumanta v. National Labor Relations Commission,13this Court ruled that labor law claims against government-owned and controlled corporations without original charter fall within the jurisdiction of the Department of Labor and Employment and not the Civil Service Commission. Petitioner METRO was originally organized under the Corporation Code, and only became a government-owned and controlled corporation after it was acquired by petitioner LRTA. Even then, petitioner METRO has no original charter, hence, it is the Department of Labor and Employment, and not the Civil Service Commission, which has jurisdiction over disputes arising from the employment of its workers.

Consequently, the terms and conditions of such employment are governed by the Labor Code and not by the Civil Service Rules and Regulations.

We therefore hold that the employees of petitioner METRO cannot be considered as employees of petitioner LRTA. The employees hired by METRO are covered by the Labor Code and are under the jurisdiction of the Department of Labor and Employment, whereas the employees of petitioner LRTA, a government-owned and controlled corporation with original charter, are covered by civil service rules. Herein private respondent workers cannot have the best of two worlds, e.g., be considered government employees of petitioner LRTA, yet allowed to strike as private employees under our labor laws. Department of Justice Opinion No. 108, Series of 1999, issued by then Secretary of Justice Serafin R. Cuevas on whether or not employees of petitioner METRO could go on strike is persuasive –

We believe that METRO employees are not covered by the prohibition against strikes applicable to employees embraced in the Civil Service. It is not disputed, but in fact conceded, that METRO employees are not covered by the Civil Service. This being so, METRO employees are not covered by the Civil Service law, rules and regulations but are covered by the Labor Code and, therefore, the rights and prerogatives granted to private employees thereunder, including the right to strike, are available to them.

Moreover, as noted by Secretary Benjamin E. Diokno, of the Department of Budget and Management, in his letter dated February 22, 1999, the employees of METRO are not entitled to the government amelioration assistance authorized by the President pursuant to Administrative Order No. 37 for government employees, because the employees of METRO are not government employees since Metro, Inc. "could not be considered as GOCC as defined under Section 3 (b) of E.O. 518 x x x x"14

Indeed, there was never an intention to consider the employees of petitioner METRO as government employees of petitioner LRTA as well – neither from the beginning, nor until the end. Otherwise, they could have been easily converted from being employees in the private sector and absorbed as government employees covered by the civil service when petitioner LRTA acquired petitioner METRO in 1989. The stubborn fact is that they remained private employees with rights and prerogatives granted to them under the Labor Code, including the right to strike, which they exercised and from which the instant dispute arose.

We likewise hold that it is inappropriate to pierce the corporate veil of petitioner METRO. In Del Rosario v. National Labor Relations Commission, we ruled that "[u]nder the law a corporation is bestowed juridical personality, separate and distinct from its stockholders. But when the juridical personality of the corporation

is used to defeat public convenience, justify wrong, protect fraud or defend crime, the corporation shall be considered as a mere association of persons, and its responsible officers and/or stockholders shall be held individually liable. For the same reasons, a corporation shall be liable for the obligations of a stockholder, or a corporation and its successor-in-interest shall be considered as one and the liability of the former shall attach to the latter. But for the separate juridical personality of a corporation to be disregarded, the wrongdoing must be clearly and convincingly established. It cannot be presumed."15In Del Rosario, we also held that the "substantial identity of the incorporators of the two corporations does not necessarily imply fraud."16

In the instant case, petitioner METRO, formerly Meralco Transit Organization, Inc., was originally owned by the Manila Electric Company and registered with the Securities and Exchange Commission more than a decade before the labor dispute. It then entered into a ten-year agreement with petitioner LRTA in 1984. And, even if petitioner LRTA eventually purchased METRO in 1989, both parties maintained their separate and distinct juridical personality and allowed the agreement to proceed. In 1990, this Court, in Light Rail Transit Authority v. Commission on Audit, even upheld the validity of the said agreement.17Consequently, the agreement was extended beyond its ten-year period. In 1995, METRO’s separate juridical identity was again recognized when it entered into a collective bargaining agreement with the workers’ union. All these years, METRO’s distinct corporate personality continued quiescently, separate and apart from the juridical personality of petitioner LRTA.

The labor dispute only arose in 2000, after a deadlock occurred during the collective bargaining between petitioner METRO and the workers’ union. This alone is not a justification to pierce the corporate veil of petitioner METRO and make petitioner LRTA liable to private respondent workers. There are no badges of fraud or any wrongdoing to pierce the corporate veil of petitioner METRO.

On this point, the Department of Justice Opinion No. 108, Series of 1999, issued by then Secretary of Justice Serafin R. Cuevas is once again apropos:

Anent the issue of piercing the corporate veil, it was held in Concept Builders, Inc. v. NLRC (G.R. No. 108734, May 29, 1996, 257 SCRA 149, 159) that the test in determining the applicability of the doctrine of piercing the veil of corporate fiction is as follows:

"1. Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own;

2. Such control must have been used by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or dishonest and unjust act in contravention of plaintiff’s legal rights; and

3. The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.

The absence of any one of these elements prevents ‘piercing the corporate veil.’ In applying the ‘instrumentality’ or ‘alter ego’ doctrine, the courts are concerned with reality and not form, with how the corporation operated and the individual defendant’s relationship to that operation."

Here, the records do not show that control was used to commit a fraud or wrong. In fact, it appears that piercing the corporate veil for the purpose of delivery of public service, would lead to a confusing situation since the outcome would be that Metro will be treated as a mere alter ego of LRTA, not having a separate corporate personality from LRTA, when dealing with the issue of strike, and a separate juridical entity not covered by the Civil Service when it comes to other matters. Under the Constitution, a government corporation is either one with original charter or one without original charter, but never both.18

In sum, petitioner LRTA cannot be held liable to the employees of petitioner METRO.

With regard the issue of illegal dismissal, petitioner METRO maintains that private respondent workers were not illegally dismissed but should be deemed to have abandoned their jobs after defying the assumption of jurisdiction and return-to-work order issued by the Labor Secretary. Private respondent workers, on the other hand, submit that they could not immediately return to work as the light rail transit system had ceased its operations.

We find for the private respondent workers. In Batangas Laguna Tayabas Bus Co. v. National Labor Relations Commission,19 we said that the five-day period for the strikers to obey the Order of the Secretary of Justice and return to work was not sufficient as "some of them may have left Metro Manila and did not have enough time to return during the period given by petitioner, which was only five days."20 In Batangas Laguna Tayabas Bus Co.,21we further held –

The contention of the petitioner that the private respondents abandoned their position is also not acceptable. An employee who forthwith takes steps to protest his lay-off cannot by any logic be said to have abandoned his work.

For abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. This refusal must be clearly established. As we stressed in a recent case, mere absence is not sufficient; it must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.

In the instant case, private respondent workers could not have defied the return-to-work order of the Secretary of Labor simply because they were dismissed immediately, even before they could obey the said order. The records show that the assumption of jurisdiction and return-to-work order was issued by Secretary of Labor Bienvenido E. Laguesma on July 25, 2000. The said order was served and posted by the sheriffs of the Department of Labor and Employment the following day, on July 26, 2000. Further, the said order of assumption of jurisdiction was duly published on July 27, 2000, in the Philippine Daily Inquirer and the Philippine Star. On the same day also, on July 27, 2000, private respondent workers were dismissed. Neither could they be considered as having abandoned their work. If petitioner METRO did not dismiss the strikers right away, and instead accepted them back to work, the management agreement between petitioners LRTA and METRO could still have been extended and the workers would still have had work to return to.

IN VIEW WHEREOF, the Decision of public respondent Court of Appeals is AFFIRMED insofar as it holds Metro Transit Organization, Inc. liable for the illegal dismissal of private respondents and orders it to pay them their benefits and full back wages and moral damages. Further, Metro Transit Organization, Inc. is ordered to pay attorney’s fees equivalent to ten percent (10%) of the total money judgment. The petition of the Light Rail Transit Authority is GRANTED, and the complaint filed against it for illegal dismissal is DISMISSED for lack of merit.

SO ORDERED.

ALEX A. ABILA, petitioner, vs.CIVIL SERVICE COMMISSION and FLORENTINA E. ELERIA, respondents.

G.R. No. 92867 June 3, 1991

QUEZON CITY, represented by the Honorable Brigido R. Simon, Jr., petitioner, vs.CIVIL SERVICE COMMISSION and FLORENTINA E. ELERIA, respondents.

Z.P. Reyes Law Office for petitioner Abila.The City Attorney for petitioner Quezon City.Pedro F. Martinez for private respondent.

R E S O L U T I O N

FELICIANO, J.:

On 1 September 1987, Amado Villafuerte retired from his position as Administrative Officer IV in the Health Department of the City Government of Quezon City. Then Quezon City Officer-in-Charge Brigido Simon, Jr. appointed petitioner Alex Abila as Villafuerte's successor. Petitioner Abila who had theretofore been the Acting Assistant Civil Security Officer, Civil Intelligence and Security Department of the Quezon City Government, assumed the Administrative Officer IV position on 2 December 1987.

A day earlier, private respondent Florentina Eleria, Administrative Officer III of the Health Department, Quezon City Government, filed a protest with the Merit System Protection Board ("Board") in respect of Abila's appointment. The Board indorsed the protest to the Quezon City Officer-in-Charge, Reynaldo Bernardo, who rendered a decision dismissing the protest.

Private respondent Eleria appealed to the Board. On 27 October 1988, the Board promulgated a decision revoking petitioner Abila's appointment and directing the Quezon City Officer-in-Charge or Mayor to appoint private respondent Eleria in

lieu of petitioner Abila. The Board found that both petitioner Abila and private respondent Eleria met the minimum eligibility and education requirements for Administrative Officer IV, but ruled that respondent Eleria had the edge in terms of rank and experience as an Administrative Officer. The Board also held that respondent Eleria was holding a position next in rank to that of the vacancy, which circumstance, according to the Board, under Section 4 of the Civil Service Commission Resolution No. 83-343, gave her "promotional priority" over petitioner.

Petitioner Abila appealed to the Civil Service Commission ("Commission"). The Commission affirmed in toto the Board's decision and resolution dated 21 November 1989. Petitioner moved for reconsideration, without success.

Petitioner is now before this Court on certiorari. He contends that the respondent Commission, having verified that both petitioner and private respondent were legally qualified to fill the vacancy, should not have proceeded to comparing the parties' qualifications and choosing the person that it believed to be the appropriate appointee. Those functions, petitioner urges, belong to the City Mayor as part of his appointing power and cannot be appropriated for itself by the respondent Commission.

In a Resolution dated 19 April 1990, the Court granted a temporary restraining order enjoining respondent Commission from implementing its resolutions.

The Quezon City Government, represented by its elected Mayor, Brigido Simon, Jr., filed an identical Petition with this Court, docketed as G.R. No. 92867, seeking annulment of respondent Commission's resolution and upholding the validity of the appointment of petitioner Abila on substantially the same grounds pleaded by the latter.

In a resolution dated 26 July 1990, the Court ordered consolidation of the two (2) cases for their more convenient disposition.

The recurring issue posed in this case is whether the respondent Commission has authority to substitute its own judgment for that of the official authorized by law to make an appointment to the government service, in the matter of weighing an appointee's qualifications and fitness for a position, after it has been shown that the appointee possesses the minimum qualifications prescribed for the position.

In a long line of cases,1 the Court has held that respondent Commission has no such authority, the power of appointment, which is essentially discretionary, being vested by law in the head of the office concerned. The head of the office is the person on the spot. He occupies the ideal vantage point from which to identify and

designate the individual who can best fill the post and discharge its functions in the government agency he heads. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of service which can best be made by the head of the office concerned, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function.

In Lapinid vs. Civil Service Commission (supra), the Court through Mr. Justice Cruz, stressed:

We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.

Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee –– taking into account the totality of his qualifications, including those abstract qualities that define his personality –– is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws.2

The Commission, the Court said in Chang v. Civil Service Commission,3 "is not a co-manager or surrogate administrator of government offices and agencies."

In the case at bar, the respondent Commission itself acknowledged that both petitioner Abila and respondent Eleria are legally qualified for the position in question.4 Having made the determination, the Commission had exhausted its powers and may not act any further except to affirm the validity of petitioner's appointment. More specifically, the Commission had no authority to revoke petitioner's appointment because the Commission believed that private respondent Eleria was better qualified for the position involved; the Commission's acts in this respect constituted an encroachment upon a discretionary authority vested by law in the Quezon City Mayor and not in the Commission.

The Court notes that a vacant position in the Civil Service may be filled by promotion, transfer of present employees, reinstatement and re-employment or appointment of outsiders who have the necessary eligibility.5The next-in-rank rule invoked by respondent Commission to justify its choice of respondent Eleria over petitioner Abila, applies only where a vacancy is filled by promotion, a process which denotes a scalar ascent of an officer to another position higher either in rank or salary. A promotion involves a situation quite different from the situation in the case at bar where the appointment of petitioner Abila was effected through lateral transfer from a position in one department of the city government to a position of greater responsibility in another department of the same government.6 In Medenilla v. Civil Service Commission,7 the Court very recently stressed that:

. . . We have already held in cases subsequent to Millares that the next-in-rank rule is not absolute; it only applies in cases of promotion (see Pineda v. Claudio, 28 SCRA 34 [1969]). And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order (see Pineda v. Claudio, supra; Luego v. Civil Service Commission, 143 SCRA 327 [1986]). There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law. (Emphasis supplied)

The Court further notes that even if the vacancy here had been filled by promotion rather than by lateral transfer, the concept of "next in rank" does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. What Section 19 (3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is filled by a promotion, the person holding the position next in rank thereto "shall be considered for promotion."8

In Taduran v. Civil Service Commission,9 the Court construed that phrase to mean that the person next in rank "would be among the first to be considered for the vacancy, if qualified.10 In Santiago, Jr. v. Civil Service Commission,11 the Court elaborated the import of the rule in the following manner:

One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to

the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. . . .12

It appears to the Court that Section 4 of respondent Commission's Resolution No. 83-343 which provided that:

Rule on Promotion

x x x x x x x x x

Section 4. An employee who holds a next in rank position who is competent and qualified, possesses an appropriate civil service eligibility and meets the other conditions for promotion shall be promoted to the higher position, when it becomes vacant. (Emphasis supplied)

has been superseded by Section 2 of Rule 3 of the respondent Commission's subsequent Resolution No. 89-779 which reads as follows:

B. Rules on Protest Cases

x x x x x x x x x

Rule III. Procedure in Filling Vacancies

x x x x x x x x x

Section 2. Positions in the Second Level. — When a vacancy occurs in the second level of the career service as herein defined, the employees in the department who occupy the next lower positions in the occupational group under which the vacant position is classified, and in other functionally related occupational groups, who are competent and qualified and with appropriate civil service eligibility shall be considered for appointment to the vacancy. (Emphasis supplied)

When, in the exercise of its rule-making power, it promulgated Section 4 of its earlier Resolution No. 83-343, the Commission clearly exceeded the scope of its statutory authority since the Civil Service law itself, in Section 19 (3) of P.D. No. 807, had simply provided that persons next in rank who are qualified "shall be considered for promotion." The current regulation found in Section 2 of Rule III of the Commission's Resolution No. 89-779 is, fortunately, more consistent with the Commission's enabling statute.

Finally, respondent Commission will find no comfort in Meram v. Edralin13 which it cites. In that case, the Court affirmed the appointment of the next in rank "because the original appointee's appointment was made in consideration of the political, ethnic, religious or blood ties totally against the very purpose behind the establishment of professionalism in the civil service."14 In the case at bar, respondents have not asserted the existence of any circumstances, such as those in Meram, which would have warranted intervention by the Commission to correct an arbitrary and merely capricious exercise of power by the appointing authority.

ACCORDINGLY, the Court Resolved to TREAT respondents' Comments as their Answers, to GRANT due course to the Petition for Certiorari and to ANNUL and SET ASIDE the Resolutions of the respondent Civil Service Commission Nos. 89-869 (21 November 1989) and 90-240 (5 March 1990), respectively. The Temporary Restraining Order dated 19 April 1990 is hereby MADE PERMANENT.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

BRICCIO Ricky A. POLLO,Petitioner,

- versus -

CHAIRPERSON KARINA CONSTANTINO-DAVID,DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,DIRECTOR IV LYDIA A.CASTILLO, DIRECTOR III

G.R. No. 181881

Present:

CORONA, C.J.,CARPIO,VELASCO, JR.,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,*

ABAD,VILLARAMA, JR.,PEREZ,MENDOZA,SERENO,REYES, andPERLAS-BERNABE, JJ.

ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION,Respondents.

Promulgated:

October 18, 2011x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employees personal files stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision[1] dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct

prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked Confidential and sent through a courier service (LBC) from a certain Alan San Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked Confidential are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The ChairwomanCivil Service CommissionBatasan Hills, Quezon City Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who

have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted. Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions.[4] After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read:

Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better.

All PCs Of PALD and LSD are being backed up per memo of the chair.

CO IT people arrived just now for this purpose. We were not also informed about this.

We cant do anything about it its a directive from chair.

Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via mms[5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: Sir may mga taga C.O. daw sa kuarto natin.[6] At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters[7] in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order[8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft

pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he lawyering for people with cases in the CSC. He accused CSC officials of conducting a fishing expedition when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being fruits of a poisonous tree.[10]

On February 26, 2007, the CSC issued Resolution No. 070382[11] finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.[15] Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the

prosecution to proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsels non-appearance.[17] This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134[19] denying petitioners motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420, [20] the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.[21]

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings

of the United States Supreme Court, and cited the leading case of OConnor v. Ortega[22] as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the probable cause or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed

for the inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that

I

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY

RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,[27] which provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and seizures.[28] But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an

enclosed public telephone booth violated his right to privacy and constituted a search and seizure. Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus recognized that employees may have a reasonable expectation of privacy against intrusions by police.

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v. Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that [i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.[35] A plurality of four Justices concurred that the correct analysis has two steps: first, because some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable, a court must consider [t]he operational realities of the workplace in order to determine whether an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.[36]

On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches:

x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individuals office. We agree with JUSTICE SCALIA that [c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer, x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.[37] (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed an expectation of privacy that society is prepared to consider as reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise

exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the searchwas not a reasonable search under the fourth amendment. x x x [t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search.A determination of the standard of reasonableness applicable to a particular class of searches requires balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees legitimate expectations of privacy against the governments need for supervision, control, and the efficient operation of the workplace.

x x x x

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the common-sense realization that government offices could not

function if every employment decision became a constitutional matter. x x x

x x x x

The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from the normal need for law enforcement. x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable

damage to the agencys work, and ultimately to the public interest. x x x

x x x x

In sum, we conclude that the special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable, x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place, x x x

Ordinarily, a search of an employees office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

In OConnor the Court recognized that special needs authorize warrantless searches involving public employees for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.[40]

OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of these cases involved a government employers search of an office computer, United States v. Mark L. Simons[41] where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access.The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the contents of Simons computer; computer diskettes found in Simons

desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced inOConnor because at the inception of the search, the employer had reasonable grounds for suspecting that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x

x x x x

x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the

Internet. Additionally, we conclude that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would audit, inspect, and/or monitor employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, as deemed appropriate. x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment.

x x x x

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.

x x x x

In the final analysis, this case involves an employees supervisor entering the employees government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy equipment that the employer knew contained evidence of crimes committed by the employee in the employees office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons office to retrieve the hard drive is one in

which a reasonable employer might engage. x x x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the employees relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item. These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.[44] Thus, where the employee used a

password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.[45]

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as full of people, his friends, unknown people and that in the past 22 years he had been discharging his functions at the PALD, he is personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer. [46] Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to

assist them in the performance of their respective jobs. 3. Use of the Computer Resources is a privilege that may be

revoked at any given time.

x x x x

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network.Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.

x x x x

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may

access the computer system with another Users password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular Users password. Only members of the Commission shall authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.

One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation.Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the affirmative.

The search of petitioners computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, selling cases and aiding parties with pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x[50]

A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.[51] Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation

of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.[52]

Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was lawyering for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of lawyering for parties with pending cases before the Commission would be a highly repugnant scenario, then such a

case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.[53]

Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject

pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases

pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo,lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money a legal mercenary selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the

formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed.Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment.

x x x x

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by

provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.[58] Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR MARGALLO, respondents.

D E C I S I O N

MENDOZA, J.:

This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr.,[1] but many incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave.

The facts are as follows:

Private respondents are public school teachers. On various dates in September and October 1990, during the teachers strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of their 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered dismissed from the service effective October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months effective December 4, 1990.[2]

Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of conduct prejudicial to the best interest of the service and imposed on him a six-month suspension.[3] The other respondents also appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal memorandum on time.[4]

On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them reinstated to their former positions.

Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular No. 1-95, the case was referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of reasonable office rules and regulations only and imposed on him the penalty of reprimand.[5]

Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against them and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining its finding that private respondents were guilty of violation of reasonable office rules and regulations for which they should be reprimanded, ruled that private respondents were entitled to the payment of salaries during their suspension beyond ninety (90) days. Accordingly, the appellate court amended the dispositive portion of its decision to read as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, 1993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and other benefits during the period of their suspension/dismissal beyond the ninety (90) day preventive suspension. No pronouncement as to costs.[6]

Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the payment of private respondents salaries during the period of their appeal.[7] His motion was, however, denied by the appellate court in its resolution of October 6, 1997.[8] Hence, this petition for review on certiorari.

Petitioner contends that the administrative investigation of respondents was concluded within the 90-day period of preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence, the government should not be held answerable for payment of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private respondents are considered under preventive suspension during the period of their appeal and, for this reason, are not entitled to the payment of their salaries during their suspension.[9]

Petitioners contentions have no merit.

I. Preventive Suspension and the Right to Compensation in Case of Exoneration

The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case, the law provides:

SEC. 47. Disciplinary Jurisdiction. -

. . . .

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.

. . . .

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a

presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47(4)).

Preventive suspension pending investigation is not a penalty.[10] It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits beyond the ninety (90) day preventive suspension. In other words, no compensation was due for the period of the preventive suspension pending investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated.

The separate opinion of Justice Panganiban argues that the employee concerned should be paid his salaries after his suspension.

The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35 read:

Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent, the respondent shall be reinstated in the service. If the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension.[11]

However, the law was revised in 1975 and the provision on the payment of salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be without pay. Sec. 24 reads:

Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This conclusion is in accord with the rule of statutory construction that -

As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment.[12]

The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for the preventive suspension pending investigation.

First, it says that to deny compensation for the period of preventive suspension would be to reverse the course of decisions ordering the payment of salaries for such period. However, the cases[13] cited are based either on the former rule which expressly provided that if the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension[14] or that upon subsequent reinstatement of the suspended person or upon his exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid,[15] or on cases which do not really support the proposition advanced.

Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was no reason at all to suspend them and thus makes their preventive suspension a penalty.

The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechems A Treatise on the Law of Public Offices and Officers as follows:

864. Officer not entitled to Salary during Suspension from Office. - An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even though it be subsequently determined that the cause for which he was suspended was insufficient. The reason given is that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services.[16]

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.[17]

The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered unjustified, even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the

investigation is not finished, the law provides that the employee shall be automatically reinstated.

Third, it is argued in the separate opinion that to deny employees salaries on the frivolous ground that the law does not provide for their payment would be to provide a tool for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses. Indeed, the possibility of abuse is not an argument against the recognition of the existence of power. As Justice Story aptly put it, It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere - wherever it may be vested it is susceptible of abuse. [18] It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such employees of full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.[19] In the case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation has been deleted.

B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is Exonerated

But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal.

It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the governments theory would be to make the administrative decision not only executory but final and executory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require.

Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely under preventive suspension if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D. No. 807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of the public service.[20] Nor was there provision for immediate execution of administrative decisions ordering dismissal or suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598, 1.[21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the charges[22] or their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service Commissioner that it was necessary in the interest of the public service.[23] On the other hand, payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the decision was ordered by the Civil Service Commissioner in the interest of the public service.[24]

Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But though an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal.Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed.[25]

II. Private Respondents Entitled to Back Salaries Although Found Guilty of Violation of Office Rules and Regulations and Reprimanded

Private respondents were exonerated of all charges against them for acts connected with the teachers strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated:

With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the mass actions but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences.

Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.[26]

In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes.

Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by the three citing reasons for their absences, to wit: Abad, because she decided to stay home to correct student papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and Somebang because of economic reasons. Petitioner did not appeal from this ruling. Hence, he is bound by the factual findings of the CSC and the appellate court.

WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years.

SO ORDERED.

HON. KARINA CONSTANTINO-DAVID, HON. JOSE F. ERESTAIN, JR., and HON. WALDEMAR V. VALMORES, in their capacities as Chairman and Commissioners, respectively, of the CIVIL SERVICE COMMISSION, petitioners, vs. ZENAIDA D. PANGANDAMAN-GANIA, respondent.

D E C I S I O N

BELLOSILLO, J.:

A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity, so says Cardozo - an observation especially apt in the instant case involving the payment of back wages and other benefits resulting from the illegal dismissal of an employee due to improper personnel and non-disciplinary action.The disquieting procedural steps risked by respondent before the Court of Appeals, the tendency of the appellate court to overlook most of them, the doggedness of the Solicitor General to venture others, when neither the court a quo nor the parties to the case appear perturbed that elementary rules of procedure were either indulgently brushed aside or subtly exploited one after the other, do not leave us ensnared in borderline technical maneuvers, or so it is said, being too impotent to address the pith of this controversy.

Respondent Zenaida D. Pangandaman-Gania is a Director II and Manila Information and Liaisoning Officer of the Mindanao State University (MSU). She has been holding this position after the confirmation of her appointment by the MSU Board of Regents on 1 June 1995.

On 2 October 1998 respondent received a copy of Special Order No. 477-P dated 28 September 1998 designating a certain Agnes Mangondato as Acting Director in her place in view of the alleged expiration of her term and was no longer allowed to report for work. She verified the status of her appointment and found out that her appointment was not submitted to the Civil Service Commission for attestation.

Respondent immediately brought the matter to the CSC for a ruling on the validity of the termination of her employment.[1] In Resolution No. 00-1265 dated 24 May 2000 the CSC upheld her dismissal for lack of attestation and prolonged absence without official leave from the time she was removed from her post in September 1998 as a result of Special Order No. 477-P.

Respondent moved for reconsideration. In Resolution No. 01-0558 dated 8 March 2001 the CSC found merit in her motion, declared her removal from office as illegal, exonerated her from the charge of being on absence without official leave and ordered her reinstatement as Director II and Manila Information and Liaisoning

Officer of MSU but disallowed the payment of back salaries for the period she was not working as a result of the illegal dismissal. The CSC explained the non-payment of her back wages -

Be that as it may, the incumbency of Dr. Gania is governed by the principle of quantum meruit (as you work so shall you earn). In other words, her entitlement to compensation depends on her actual performance of work. Short of approval by the Commission, the appointment while already effective, by itself is not a basis for payment of salary but the assumption of duties of her office x x x x Such being the case, Dr. Gania is not entitled to compensation for the period that she was not reporting to work.[2]

MSU moved for reconsideration of CSC Resolution No. 01-0558 dated 8 March 2001, while respondent moved for its early execution. In Resolution No. 01-1225 dated 19 July 2001, the CSC denied MSUs motion for reconsideration and ordered its President to allow respondent to assume and exercise the functions of Manila Information and Liaisoning Officer.

MSU appealed from the denial of its motion for reconsideration under Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R. No. SP-66188, to the Court of Appeals, but the appellate court did not issue any restraining order or injunction to prevent the execution of the resolution on appeal.

Respondent did not seek a review of any of the resolutions of the CSC including the order denying back salaries and other benefits for the period she was out of work. She instead pursued her prayer for reinstatement but MSU refused to employ her back. Hence, she was compelled to file a second motion for the execution of CSC Resolution No. 01-0558 dated 8 March 2001, citing Sec. 82 of the Revised Uniform Rules on Administrative Cases in the Civil Service, which states that [t]he filing and pendency of petition for review with the Court of Appeals or certiorari with the Supreme Court shall not stop the execution of the final decision of the Commission unless the Court issues a restraining order or an injunction.

In Resolution No. 01-1616 dated 4 October 2001 the CSC granted respondents motion and held that CSC Resolution No. 01-0558 dated 8 March 2001 has attained finality and must be immediately implemented, as it again ordered the MSU President to reinstate respondent.

On 8 October 2001 respondent for the first time questioned the portion of CSC Resolution No. 01-0558 dated 8 March 2001 prohibiting the payment of back wages and other benefits to her for the period that her employment was terminated, and moved for the modification of the resolution by granting her the relief prayed for.

On 29 October 2001 the Court of Appeals dismissed MSUs petition for review on the ground that the certificate of non-forum shopping was not personally signed

by pertinent officers of the university but by its counsel of record. [3] MSU moved for reconsideration of the dismissal.

On 12 December 2001, there being still no action on her request to be paid her back salaries and other benefits, respondent moved for an immediate ruling thereon.

On 21 February 2002 the Court of Appeals denied MSUs motion for reconsideration of the dismissal of its petition for review for lack of merit.

On 28 February 2002 the CSC in Resolution No. 02-0321 denied respondents motion -

Since nowhere in the records does it show that [respondent Gania] actually assumed and performed the duties of her position, it logically follows that there can be no basis for the grant of back salaries in her favor.[4]

Without the aid of an attorney, respondent appealed CSC Resolution No. 02-0321 dated 28 February 2002 to the Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure, docketed as CA-G.R. SP No. 69668. In her petition for review, she did not mention that she did not seek a review of CSC Resolution No. 01-0558 dated 8 March 2001 which was the real object of her appeal.[5] In addition, she impleaded only the petitioners herein, Chairperson Karina Constantino-David and Commissioners Jose F. Erestain Jr. and Waldemar V. Valmores of the CSC, but did not name as party-respondent the Mindanao State University or any of its officers.

In its Comment before the Court of Appeals, the CSC through the Office of the Solicitor General (OSG) rebuffed respondents claim for back wages since she allegedly failed to actually assume the position of Director II and Manila Information and Liaisoning Officer of MSU. But the CSC did not assail the procedural infirmities of respondents petition and appeared contented to refute just the substantial arguments thereof.

On 28 October 2002 the Court of Appeals partially found merit in respondents petition for review.[6] Apparently failing to note that respondent did not appeal from the denial of her claim for payment of back salaries in CSC Resolution No. 01-0558 dated 8 March 2001, which she found objectionable, the Court of Appeals concluded that -

x x x petitioner had assumed and had been exercising the functions [at MSU] as early as June 1995, after the MSU Board of Regents approved her permanent appointment which was issued earlier x x x on April 10, 1995. It was only in September 1998, when she was terminated from service on the alleged ground of

expiration of term, that she was prevented from performing the functions of her position.[7]

The Court of Appeals ruled that back wages should be paid to respondent from the time of her illegal dismissal until she was ordered reinstated by the CSC as Director II of MSU on 8 March 2001, but excluded the period after the CSC had ordered MSU to admit respondent back to work since the damages she suffered for that period were chargeable in the proper forum against the MSU President who in bad faith refused to abide by the relevant CSC resolutions.

On 3 January 2003 the OSG filed the instant petition for review under Rule 45, 1997 Rules of Civil Procedure, allegedly in behalf of the petitioners named herein, and also signed for them the verification and certification of non-forum shopping. The OSG asserted as grounds for review the principle recognizing finality to factual findings of quasi-judicial agencies as well as its puzzling statement that [w]hile the dismissal of herein respondent was declared illegal, she was, however, not exonerated from the charges. Hence, respondent is not entitled to back wages.[8] Once again the OSG did not call attention to procedural defects in the petition of respondent before the Court of Appeals.

Respondent filed in her own behalf a Comment claiming that the CSC cannot be a party-petitioner in a case where its decision is the subject of review, citing Civil Service Commission v. Court of Appeals.[9] As to whether respondent actually assumed the duties of Director II, she referred not only to the finding of the Court of Appeals that she had assumed office and worked for MSU as early as June 1995 but also to the voluminous records of MSU showing that she reported for work until her illegal dismissal in September 1998.[10] She also manifested that she was reinstated to her job on 18 September 2002 while the proceedings before the Court of Appeals were ongoing although she was not paid her salary and other benefits. In another Manifestation before this Court, she affirmed that her salary as well as RATA and other benefits for the month of September 2002 were paid on 23 April 2003.

We deny the instant petition for review. It is true that respondent had lost the right to ask for the modification of CSC Resolution No. 01-0558 dated 8 March 2001 and to demand compensation for her back salaries and other benefits. She did not move for the reconsideration of this resolution within fifteen (15) days from receipt thereof[11] nor did she file a petition for its review within the same period under Rule 43 of the 1997 Rules of Civil Procedure.[12] To be sure, both the CSC and respondent herself admitted the finality of the Resolution and acted upon it when she was granted an order for its execution.

Meanwhile, MSU filed its petition for review with the Court of Appeals (CA-G.R. No. SP-66188) assailing CSC Resolution No. 01-0558 dated 8 March

2001 and CSC Resolution No. 01-1225 dated 19 July 2001 denying MSUs motion for reconsideration.

Ordinarily, under the foregoing circumstances, neither the Civil Service Commission nor the Court of Appeals has jurisdiction to direct the substantial amendment of CSCs relevant resolutions upon the behest of respondent.[13] The principle governing ordinary appeal from the Regional Trial Court to the Court of Appeals applies suppletorily[14] mutatis mutandis -

x x x where all the parties have either thus perfected their appeals by filing their notices of appeal in due time and the period to file such notice of appeal has lapsed for those who did not do so, then the trial court loses jurisdiction over the case as of the filing of the last notice of appeal or the expiration of the period to do so for all the parties.[15]

This rule is also articulated in Associated Bank v. Gonong[16] where we held that only after all the parties respective periods to appeal shall have lapsed that the court loses its jurisdiction over the case. What is left as residual jurisdiction of the Civil Service Commission pertains only to matters for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal or the immediate execution of its resolutions under the Revised Uniform Rules on Administrative Cases in the Civil Service. This is to ensure the orderly disposition of the case at both the levels of the CSC and the appellate court.[17]

Nonetheless, we cannot inflexibly dwell on the defect of a belated appeal and coldly thwart a review of the instant case. For it cannot be denied that even after acknowledging the finality of Resolution No. 01-0558 dated 8 March 2001, the CSC still entertained the twin motions of respondent on 8 October 2001 and 12 December 2001 to modify the same resolution and insert therein an order for the payment of back wages. The CSC in fact promulgated Resolution No. 02-0321 dated 28 February 2002 denying respondents importunate motions for the reason that she allegedly did not report for work but not because they were already time-barred.

No doubt, the Civil Service Commission was in the legitimate exercise of its mandate under Sec. 3, Rule I, of the Revised Uniform Rules on Administrative Cases in the Civil Servicethat [a]dministrative investigations shall be conducted without necessarily adhering strictly to the technical rules of procedure and evidence applicable to judicial proceedings. This authority is consistent with its powers and functions to [p]rescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws being the central personnel agency of the Government.[18]

Furthermore, there are special circumstances in accordance with the tenets of justice and fair play that warrant such liberal attitude on the part of the CSC and a

compassionate like-minded discernment by this Court.[19] To begin with, respondent was consistently denied reinstatement by the responsible officers of MSU and vehemently barred from resuming her previous position. The first order for her return to work was issued on 8 March 2001 which was followed by repeated personal appeals for the immediate execution of the CSC resolution. [20]Thereafter, when respondent was still forced out of work, the CSC issued its second and third orders on 19 July 2001 and 4 October 2001, respectively, for the President of MSU to restore her to the item from which she was illegally dismissed. As these private requests and official directives were cruelly rejected by her employer and the period of her unemployment was unduly prolonged, respondent had no choice and was compelled to ask for back salaries and other benefits to offset the callous repudiation of what was due her.

To prevent respondent from claiming back wages would leave incomplete the redress of the illegal dismissal that had been done to her and amount to endorsing the wrongful refusal of her employer or whoever was accountable to reinstate her. A too-rigid application of the pertinent provisions of the Revised Uniform Rules on Administrative Cases in the Civil Service as well as the Rules of Court will not be given premium where it would obstruct rather than serve the broader interests of justice in the light of the prevailing circumstances in the case under consideration.

As commented in Obut v. Court of Appeals,[21] we cannot look with favor on a course of action which would place the administration of justice in a straightjacket for then the result would be a poor kind of justice, if there would be justice at all. Verily, judicial orders x x x are issued to be obeyed, nonetheless a non-compliance is to be dealt with as the circumstances attending the case may warrant. What should guide judicial action is the principle that a party-litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on technicalities.

The same principle of liberality may also be drawn upon to gloss over the failure of respondent to implead MSU as party-respondent in the petition before the Court of Appeals while joining only herein petitioners as Chairman and Commissioners of the CSC to answer her petition. While as a rule it would have been necessary to adhere to this practice,[22] in the instant case no one among the Court of Appeals, the CSC and the Office of the Solicitor General saw it fit to name or cause to be included MSU as party-respondent. Indeed, the Comment of the OSG argued on the merits as if it was acting in unison with respondents employer, stressing all possible claims that may be alleged to defeat respondents petition. Ultimately, what is crucial is that both CSC and MSU are part of the same bureaucracy that manages and supervises government personnel, and as such, represent a common interest on the question raised in the petition to be defended by the same core of lawyers from the OSG or the Office of the Government Corporate Counsel (OGCC).[23]

Justifiably, where no injury has been done as probably all lines of reasoning to oppose the petition have been asserted by parties of the same principal and brought to the fore in the proceedings a quo, and considering further that the underlying principle in the administration of justice and application of the rules is substance rather than form, reasonableness and fair play in place of formalities, we deem it apposite to except this particular case from the rigid operation of the procedure for the joinder of parties.

In any event, none of these procedural defects were raised as an issue on appeal and are now deemed waived. Of course we are not surprised that the OSG did not touch on these procedural issues and would seemingly prefer a ruling squarely on the issue of respondents entitlement to back wages. As its services are paid for by taxpayers money, the OSG ought to be the foremost officers of the court who in suitable cases must delve into the real concerns.

Unfortunately, the OSG also treaded upon technically precarious grounds when it filed the petition in the name of the CSC and signed the verification and certificate of non-forum shopping in behalf of its client. Sure enough, respondent vigorously objects to the standing of the CSC as party-petitioner in the instant petition, citing our ruling in Civil Service Commission v. Court of Appeals.[24]

That the CSC may appeal from an adverse decision of the Court of Appeals reversing or modifying its resolutions which may seriously prejudice the civil service system is beyond doubt. In Civil Service Commission v. Dacoycoy [25] this Court held that the CSC may become the party adversely affected by such ruling and the aggrieved party who may appeal the decision to this Court.

The situation where the CSCs participation is beneficial and indispensable often involves complaints for administrative offenses, such as neglect of duty, being notoriously undesirable, inefficiency and incompetence in the performance of official duties, and the like, where the complainant is more often than not acting merely as a witness for the government which is the real party injured by the illicit act. In cases of this nature, a ruling of the Court of Appeals favorable to the respondent employee is understandably adverse to the government, and unavoidably the CSC as representative of the government may appeal the decision to this Court to protect the integrity of the civil service system.

The CSC may also seek a review of the decisions of the Court of Appeals that are detrimental to its constitutional mandate as the central personnel agency of the government tasked to establish a career service, adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service, strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. Nonetheless, the right of the CSC to appeal the adverse decision does not preclude the private complainant in appropriate cases from similarly elevating the decision for review.[26]

The ruling in Civil Service Commission v. Dacoycoy was further explained in Civil Service Commission v. Court of Appeals[27] where we held that the real party-in-interest in a case involving the non-renewal of the appointments of contractual employees would be the person who was allegedly dismissed from work and not the CSC, for it is he who would be benefited or injured by his reinstatement or non-reinstatement and who is present, available and competent to bring the matter on appeal. Like a judge whose order or decision is being assailed, the CSC should not be joined in the petition as it is not a combatant in a proceeding where opposing parties may contend their respective positions without the active participation of the CSC.[28]

In the instant case, the CSC is not the real party-in-interest as this suit confronts the Decision of the Court of Appeals to award back wages for respondent arising from an illegitimate personnel and non-disciplinary action of MSU, which is different from an administrative disciplinary proceeding where the injured party is the government. We fail to see how the assailedDecision can impair the effectiveness of government, damage the civil service system or weaken the constitutional authority of the CSC so as to authorize the latter to prosecute this case.As a rule, the material interest for this purpose belongs to MSU since it instigated the illegal dismissal and the execution of the Decision devolves upon it.[29]

Regrettably, however, respondent cannot insist that MSU be the indispensable party in the instant petition since the latter was not designated as respondent in the petition before the Court of Appeals. It would truly be a case of having her cake and eating it too for respondent to require MSU to undertake the present appeal from the assailed Decision when it was deprived of standing in the appellate court proceedings and unilaterally booted out as a prospective litigant herein. Hence, by force of circumstances, the CSC has the standing to initiate the instant petition for review.

Moreover, the OSG executed the verification and certificate of non-forum shopping in behalf of the CSC, citing as bases therefor City Warden of the Manila City Jail v. Estrella,[30] andCommissioner of Internal Revenue v. S.C. Johnson and Son, Inc.[31] Some clarification is in order to avoid perpetuating a misconception.

City Warden of the Manila City Jail v. Estrella is not an authority for the OSG to execute verification and certification of non-forum shopping on its own as legal representative of client agencies. The reason is that the OSG was in that case acting as a Peoples Tribune regardless of the official opinion of the relevant government agencies therein -

That the City Warden appears to have acquiesced in the release order of the trial court by his compliance therewith does not preclude the Solicitor General from taking a contrary position and appealing the same. The Solicitor General's duty is to

present what he considers would legally uphold the best interest of the Government[32] (underscoring added).

Hence, there was no necessity for the verification and certificate of non-forum shopping to be executed by the City Warden himself. To be sure, it would have been awkward and irregular for the City Warden to do so given that his position was not the same as those reflected in the petition of the OSG. No doubt, the real party-in-interest is the OSG itself as representative of the State.[33] In Pimentel v. Commission on Elections [34] we held

x x x the Solicitor General may, as it has in instances take a position adverse and contrary to that of the Government on the reasoning that it is incumbent upon him to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client's position x x x x As we commented on the role of the Solicitor General in cases pending before this Court, This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter of fact, the Court appreciates the participation of the Solicitor General in many proceedings and his continued fealty to his assigned task. He should not therefore desist from appearing before this Court even in those cases he finds his opinion inconsistent with the Government or any of its agents he is expected to represent. The Court must be advised of his position just as well.[35]

But the rule is different where the OSG is acting as counsel of record for a government agency. For in such a case it becomes necessary to determine whether the petitioning government body has authorized the filing of the petition and is espousing the same stand propounded by the OSG. Verily, it is not improbable for government agencies to adopt a stand different from the position of the OSG since they weigh not just legal considerations but policy repercussions as well. They have their respective mandates for which they are to be held accountable, and the prerogative to determine whether further resort to a higher court is desirable and indispensable under the circumstances.

The verification of a pleading, if signed by the proper officials of the client agency itself, would fittingly serve the purpose of attesting that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. Of course, the OSG may opt to file its own petition as a Peoples Tribune but the representation would not be for a client office but for its own perceived best interest of the State.

The case of Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., is not also a precedent that may be invoked at all times to allow the OSG to sign the certificate of non-forum shopping in place of the real party-in-interest. The ruling therein mentions merely that the certification of non-forum shopping executed by the OSG constitutes substantial compliance with the rule since the OSG is the only

lawyer for the petitioner, which is a government agency mandated under Section 35, Chapter 12, Title III, Book IV, of the 1987 Administrative Code (Reiterated under Memorandum Circular No. 152 dated May 17, 1992) to be represented only by the Solicitor General.[36]

By its very nature, substantial compliance is actually inadequate observance of the requirements of a rule or regulation which are waived under equitable circumstances[37] to facilitate the administration of justice[38] there being no damage or injury caused by such flawed compliance.[39] This concept is expressed in the statement the rigidity of a previous doctrine was thus subjected to an inroad under the concept of substantial compliance.[40] In every inquiry on whether to accept substantial compliance, the focus is always on the presence of equitable conditions to administer justice effectively and efficiently without damage or injury to the spirit of the legal obligation.

We have ruled previously[41] that substantial compliance with the certificate of non-forum shopping is sufficient. The equitable circumstances pleaded to show substantial compliance include the proximity of the filing of the complaint to the date of the effectivity of the circular requiring the certificate and the belated filing thereof, but the mere submission thereof after the filing of a motion to dismiss does not ipso facto operate as a substantial compliance.[42] As summarized in Bank of the Philippine Islands v. Court of Appeals,[43] [w]hen a strict and literal application of the rules on non-forum shopping and verification will result in a patent denial of substantial justice, they may be liberally construed. This guideline is especially true when the petitioner has satisfactorily explained the lapse and fulfilled the requirements in its motion for reconsideration.

The fact that the OSG under the 1987 Administrative Code is the only lawyer for a government agency wanting to file a petition, or complaint for that matter, does not operate per se to vest the OSG with the authority to execute in its name the certificate of non-forum shopping for a client office. For, in many instances, client agencies of the OSG have legal departments which at times inadvertently take legal matters requiring court representation into their own hands without the intervention of the OSG.[44] Consequently, the OSG would have no personal knowledge of the history of a particular case so as to adequately execute the certificate of non-forum shopping; and even if the OSG does have the relevant information, the courts on the other hand would have no way of ascertaining the accuracy of the OSGs assertion without precise references in the record of the case. Thus, unless equitable circumstances which are manifest from the record of a case prevail, it becomes necessary for the concerned government agency or its authorized representatives to certify for non-forum shopping if only to be sure that no other similar case or incident is pending before any other court.

We recognize the occasions when the OSG has difficulty in securing the attention and signatures of officials in charge of government offices for the

verification and certificate of non-forum shopping of an initiatory pleading. This predicament is especially true where the period for filing such pleading is non-extendible or can no longer be further extended for reasons of public interest such as in applications for the writ of habeas corpus, in election cases or where sensitive issues are involved. This quandary is more pronounced where public officials have stations outside Metro Manila.

But this difficult fact of life within the OSG, equitable as it may seem, does not excuse it from wantonly executing by itself the verification and certificate of non-forum shopping. If the OSG is compelled by circumstances to verify and certify the pleading in behalf of a client agency, the OSG should at least endeavor to inform the courts of its reasons for doing so, beyond instinctively citing City Warden of the Manila City Jail v. Estrella and Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc.

Henceforth, to be able to verify and certify an initiatory pleading for non-forum shopping when acting as counsel of record for a client agency, the OSG must (a) allege under oath the circumstances that make signatures of the concerned officials impossible to obtain within the period for filing the initiatory pleading; (b) append to the petition or complaint such authentic document to prove that the party-petitioner or complainant authorized the filing of the petition or complaint and understood and adopted the allegations set forth therein, and an affirmation that no action or claim involving the same issues has been filed or commenced in any court, tribunal or quasi-judicial agency; and, (c) undertake to inform the court promptly and reasonably of any change in the stance of the client agency.

Anent the document that may be annexed to a petition or complaint under letter (b) hereof, the letter-endorsement of the client agency to the OSG, or other correspondence to prove that the subject-matter of the initiatory pleading had been previously discussed between the OSG and its client, is satisfactory evidence of the facts under letter (b) above. In this exceptional situation where the OSG signs the verification and certificate of non-forum shopping, the court reserves the authority to determine the sufficiency of the OSGs action as measured by the equitable considerations discussed herein.

Finally, after our lengthy discourse on the technical imperfections afflicting the instant case, we resolve the substantive issue of whether respondent is entitled to receive back salaries and other benefits for the period that she was illegally dismissed. Obviously, the answer is in the affirmative.

There is more than substantial evidence in the record consisting of the general payroll and attendance sheets to prove that petitioner assumed and exercised the functions of Director II and Manila Information and Liaisoning Officer at MSU as early as June 1995 after the MSU Board of Regents approved her permanent appointment which was issued earlier on 10 April 1995.[45] It cannot be refuted that in September 1998 she was terminated from the service on the alleged ground of

expiration of her term and stopped from performing the functions of her position, and subsequently reinstated to her job upon the declaration of the CSC that her dismissal from the service was illegal. Clearly, the CSC gravely erred when thereafter it ruled that respondent did not actually assume and perform the duties of her position so as to deprive her of back wages and other benefits.

In Gabriel v. Domingo[46] this Court held that an illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement.

Respondent cannot be faulted for her inability to work or to render any service from the time she was illegally dismissed up to the time of her reinstatement. The policy of no work, no pay cannot be applied to her, for such distressing state of affairs was not of her own making or liking even as her family suffered tremendously as a consequence of her removal and while she was jobless. Verily, to withhold her back salaries and other benefits during her illegal dismissal would put to naught the constitutional guarantee of security of tenure for those in the civil service.

We also agree with the Court of Appeals that MSU cannot be made to pay all accruing back salaries and other benefits in favor of respondent. There are allegations to the effect that officials of MSU disobeyed in bad faith the writ of execution issued by the CSC. In Gabriel v. Domingo[47] we held that if the illegal dismissal, including the refusal to reinstate an employee after a finding of unlawful termination, is found to have been made in bad faith or due to personal malice of the superior officers then they will be held personally accountable for the employees back salaries; otherwise, the government disburses funds to answer for such arbitrary dismissal.[48] This rule is also enunciated in Secs. 38[49] and 39[50] of Book I, E.O. 292, and in Secs. 53,[51] 55,[52] 56[53] and 58[54] of Rule XIV of the Omnibus Civil Service Rules and Regulations.

Accordingly, MSU as a government institution must compensate respondent with back salaries and other benefits only from the time of her illegal dismissal, which according to the case record began sometime in October 1998, until the motion for reconsideration of the MSU was denied and a writ of execution for respondents reinstatement as Director II and Manila Information and Liaisoning Officer was issued. The reckoning period is not 8 March 2001 as determined by the appellate court but 19 July 2001 when CSC Resolution No. 01-1225 was promulgated wherein the motion for reconsideration of the MSU was denied with finality and the latter was explicitly commanded to allow respondent to assume and exercise the functions of Director II and Manila Information and Liaisoning

Officer. For, a final decision of the CSC is immediately executory unless a motion for reconsideration is filed in the meantime.[55]

The back wages and other benefits accruing after 19 July 2001 are to be treated separately since they must be collected in the proper forum wherein the assertions of malice and ill will in the failure to reinstate respondent to her post are threshed out and the concerned parties given the full opportunity to be heard. Until such separate proceeding has been instituted and decided, it is premature to fix the liability for this portion of respondents back wages and other benefits upon either the government as represented by MSU or the accountable officers thereof.

WHEREFORE, the instant Petition for Review is DENIED. The Decision of the Court of Appeals dated 28 October 2002 is AFFIRMED except that the cut-off date for the payment of back salaries to respondent should be adjusted from the date of her illegal dismissal to 19 July 2001, instead of 8 March 2001, since it was only on 19 July 2001 that MSUs motion for reconsideration was denied and the order of execution finally issued by the Civil Service Commission specifically directing MSU to reinstate respondent Pangandaman-Gania and exercise the functions of her position with the promulgation of CSC Resolution No. 01-1225.

This is without prejudice to respondents claim for back salaries and other benefits in the appropriate forum corresponding to the period after 19 July 2001 until she is actually reinstated as Director II and Manila Information and Liaisoning Officer.

SO ORDERED.