BULING, Erwin A. of Services; Appeal x · PDF filePRO version Are you a developer? Try out the...

pdfcrowd.comPRO version Are you a developer? Try out the HTML to PDF API

BULING, Erwin A.Re: Reorganization; Termination of Services; Appealx-----------------------------------------x

RESOLUTION NO. 020514

Mayor Erwin A. Buling, Municipality of San Juan, Leyte, appeals from Civil Service Commission RegionalOffice (CSCRO) No. VIII Non-Disciplinary Case Order Nos. 99-001 dated December 20, 1999 and 99-099 datedApril 11, 2000 relative to the reorganization undertaken by the Municipality. Order No. 99-001 declared not in orderthe separation from the service of certain employees and the demotion of others. On the other hand, Order No. 99-099 modified Order No. 99-001.

The pertinent portions of Order No. 99-001 read, as follows:

"A cursory perusal of the records and documents submitted show that althoughthere was a reduction in the number of itemized positions in the new staffing pattern of thelocal government unit, it appears that the reorganization was undertaken in violation of thesaid rules on reorganization.

"The order of preference and the preferential right of reappointment in the extensionof appointments to positions in the new staffing pattern was not observed. Xxx

"While the positions held by Alfaro (Community Affairs Assistant II), Corbete

http://pdfcrowd.com/html-to-pdf-api/?ref=pdf

http://pdfcrowd.com/customize/

http://pdfcrowd.com


(Cemetery Caretaker), Obeda (Day Care Worker), Lacano (Labor Foreman), Cambaya(Laborer I), Timkang (Laborer I), Gaza (Laborer I) and Segardor (Laborer I) were abolished,it appears that new positions were created or recreated in the new staffing. It can thus beimplied that the separated employees were not given the right to exercise their preferentialright to be appointed to positions xxx. Thus, if there are less positions available, theseseparated employees must be fairly ranked and evaluated if they are to be placed inpositions next lower if there are no comparable positions available, considering theirformer status, and qualifications. xxx

"Appellant Mercado who held the position of Utility Worker I in the old plantillashould have been appointed to the same position which was recreated in the new staffingpattern, he being a permanent appointee prior to the reorganization. The appointment ofCanlas, a former Electrician I to the said position impaired the vested right of Mercado tobe reappointed to the said position.

"Likewise, the right of appellant Fortuna who formerly held the position of MPDC tobe appointed to his former position which was recreated in the new staffing pattern wasimpaired. Xxx His demotion to the position of Assistant Registration Officer impaired hissecurity of tenure and is a diminution of rank, salary and status. Correspondingly, xxxMisoles who formerly held the position of Assistant Registration Officer under permanentcapacity should have been appointed to the same position, instead of Fortuna, as sheenjoys the preferential right to be reappointed to her former position, which was recreatedin the new staffing pattern.

"In the case of xxx Malubay, this Office finds her demotion to be in order. The oldplantilla shows that there were two (2) Midwife II positions prior to the reorganization. In thenew staffing pattern, the number was reduced from two (2) to one (1). There being only oneMidwife II position recreated, Malubay may be appointed to a next lower position, withouthowever, reduction in salary.



http://pdfcrowd.com


"Further, it is noted that three (3) former casual employees were appointed topermanent positions (Driver I) in the new staffing pattern. The said appointments violatedthe order of preference for appointment, in that the positions should have first been offeredto permanent employees who cannot be reappointed to their former positions by reason oftheir abolition xxx. Casuals are given the third priority in the recruitment in a reorganizedagency xxx.

"WHEREFORE, foregoing premises considered, the separation from the service ofIsidore Mercado, Ma. Wendy Mendoza and Emma Magno is hereby declared to be not inorder. Accordingly, Mayor Erwin Buling is directed to appoint said appellants to positionsin the new staffing pattern which are similar or comparable to their former positions and towhich they qualify, after proper assessment. Either of Mendoza or Magno may beappointed to a position next lower from their former position, if no comparable orequivalent position is available, in view of the reduction in number of the positions ofRevenue Collection Clerk I.

"Likewise, the termination of the services of Ludger Alfaro, Philip Corbete, PacitaObeda, Corazon Vero, Simaco Lacano, Romulo Cambaya, Marcelino Timkang, TartacioGazo and Diosdedit Segador are declared not in order. Mayor Buling is, thus, directed toappoint them to positions in the new staffing pattern which are equivalent to or comparableto their former positions. They may likewise, be placed to positions next lower from theirformer positions if there are not enough comparable positions in the new plantilla ofpersonnel. The separation of any of them, should it be inevitable, in view of the reducednumber of positions, should be based on fair and objective ranking of their relative fitnessbased on factors provided for under Sec. 6 of the Implementing Rules, being,Performance, Education and Training, Experience and Outstanding Accomplishment, andPhysical Characteristics and Personality Traits of the subject employees.

"As regards, the demotion of Bonifacio Fortuna and Aleli Misoles, the same arelikewise declared not in order. Accordingly, Mayor Buling is hereby directed to reappoint



http://pdfcrowd.com


them to their former positions, the same having been recreated in the new plantilla.

"The demotion of Trinidad Malubay however, is declared to be in order.

"Further, the appointments issued to the new recruits, except to the position ofMunicipal Accountant, provided she meets the qualification required for the position, aswell as the promotional appointments where the preferential right of appointment of hereinappellants are affected, are herein declared to be null and void.

"Furthermore, CSFO-Maasin, Southern Leyte is hereby directed to annotate theprovisions of this Order on the afore-stated appointments of concerned personnel andmonitor the implementation of the provisions of this Order."

On the other hand, the relevant portions of Order 99-099 read, as follows:

"Thus, if xxx Fortuna is to be reappointed to his former position as MPDC under thenew staffing pattern, he should show proof that he qualifies to the said position. In theinstant case, xxx having finished only four years of study of Bachelor of Science inMechanical Engineering xxx. As such, he falls short of the qualification prescribed by theCode for the position of MPDC. Thus, his demotion to the position of Asst. RegistrationOfficer xxx he is found to be qualified xxx. However, since said position which is recreatedposition under the new staffing pattern was formerly held by xxx Misoles, his appointmentthereto, would infringe on the preferential right of Misoles.

"In view however, of the reduced number of positions in the new staffing pattern, andto protect the right to security of tenure of Fortuna, who formerly held a higher position thanMisoles and much senior than the latter in terms of length of service, their currentappointments under their demoted positions as Asst. Civil Registration Officer andAccounting Clerk II xxx should no longer be disturbed. Xxx

"WHEREFORE, foregoing premises considered, this Office modifies its earlier



http://pdfcrowd.com


decision contained in CSRO8 Non-Disciplinary Case Order No. 99-001 dated December20, 1999, only as regards the cases of Bonifacio Fortuna and Aleli Misoles. As such, theaction of approval on the appointments of Bonifacio Fortuna and Aleli Misoles asAssistant Registration Officer and Accounting Clerk II, respectively are declared to be inorder. In accordance with the policy of no diminution in salary, they shall be allowed toretain the higher salaries of their former positions.

"Accordingly, the disposition of the respective appeals of the remaining thirteen (13)others appellants as contained in the aforecited Order (CSRO8 Non-Disciplinary CaseOrder No. 99-001) STANDS."

In his appeal, Mayor Buling represented, as follows:

"The CSC Region 8 committed grave abuse of discretion amounting to lack of jurisdictionby deliberately not furnishing a copy of the Order dated April 11, 2000 to the undersignedcounsel of record xxx

"5. Since the repercussion of the Order involves a far-reaching ADVERSE effect to themunicipality of San Juan, xxx the more reason that counsel xxx be provided a copy of theCSC Region 8 xxx. The right of the counsel xxx to be furnished a copy of the Order is NOTa mere formality that may be dispensed with.

"5.3 The deliberate act xxx is contrary to law, good morals, good customs, public policy,public order and public interest xxx.

"THE CSC REGION 8 ERRED IN DECLARING THE SEPARATION FROM THESERVICE OF XXX SEGADOR, XXX GAZO, XXX TIMKANG, XXX GAMBAYA, XXXSIMACO, XXX CORBETE, XXX MERCADO, XXX VERO, XXX OBEDA, XXX MAGNO,XXX MENDOZA, AND XXX ALFRARO AS NOT IN ORDER.

"5.7 SB Resolution No. 068-98 was an off-shoot of the briefing made by the Municipal



http://pdfcrowd.com


Treasurer, Municipal Budget Officer and the Municipal Human Resource ManagementOfficer before the members of the Sangguniang Bayan xxx. The reports xxx focused onfinancial condition, budgetary profile and personnel outlook xxx. With these reports, therewas an imperative need that there must be REORGANIZATION xxx in order to deliverbasic services to the community.

"5.7.3 xxx The plantilla of Laborer I was ABOLISHED due to conceived idea of hiring onlyEMERGENCY workers and xxx are co-terminus with the completion of municipal projects.This is in consonance to the provisions of Section 77 of the Local Government Code of1991.

"5.7.4 The plantilla of Community Affairs Assistant was ABOLISHED not being amandatory position.

"THE CSC REGION 8 ERRED IN DECLARING THE APPOINTMENT OF NEWRECRUITS AS NULL AND VOID;

"6. TO PROSCRIBE of hiring of new recruits would be contrary to the principle of merit andfitness.

"6.1. The hiring of new recruits was justified in the case of MENDINILLA vs. CIVILSERVICE COMMISSION, et al., 194 SCRA 278, xxx

"Undoubtedly, old employees should be considered first. Butit does not necessarily follow that they should then be automaticallyappointed. Xxx

"7. IN DENYING xxx "Motion for Reconsideration", CSC Region 8 relied heavily onthe affidavits submitted by xxx ANTONIO S. ENO and xxx CECILIO G. SIBUNGA.

"7.1. It is our contention that the affidavits of xxx Eno and xxx Sibunga has NO



http://pdfcrowd.com


probative value for being hearsay. As a matter of fact, respondent xxx was NOT aware ofthe existence of such affidavits because he was not afforded a copy of the complainant xxx"Rejoinder" to respondent xxx "Motion for Reconsideration. The element of fair play wasWANTING. NEITHER did the CSC Region 8 ordered the respondent xxx to comment onit.

"7.3. The documents xxx attached xxx BELIES the claims of ENO and SIBUNGA.Please take note that every document in the evaluation of the government employees ofthe municipality xxx bears the signatures of ENO and SIBUNGA as to their acquiescenceto the authenticity and due execution of the said documents including the contents thereof.

"7.7. FINALLY, it is quite queer that while the CSC Region 8 found the separationsof complainant xxx not in order and the new recruits as NULL AND VOID, yet there was nofinding on any of the grounds enumerated under Sec. 16 of the Rule of (sic) GovernmentReorganization."

By way of comment to the appeal, CSCRO No. VIII states, as follows:

"1. On the ground that this Office has a hidden agenda in not furnishing Atty.Reuben Tadena a copy of the Order dated April 11, 2000 denying the Motionfor Reconsideration, the same is denied. Indeed, no copy of said Order wasgiven to Atty. Tadena, but a copy of the same was sent to Mayor Erwin A.Buling of San Juan, Southern Leyte, as evidenced by the attached PostalRegistry Return Receipt showing that the mail containing a copy of the Orderwas received on April 19, 2000. The fact that his client, Mayor Buling actuallyreceived a copy of the assailed Order is sufficient notice to the client and hiscounsel. The client being the primary party represented by counsel and in thiscase, being no less than the local chief executive, knows the implication of saidOrder, in that if he feels aggrieved of the decision, he could have conveyed thesame to his counsel.



http://pdfcrowd.com


"Moreover, the instant case is non-disciplinary in nature, where the formal entryof appearance of a counsel is not required, and where there are no formalproceedings being observed, like the conduct of a hearing, the evaluationbeing on documents alone, hence, decisions are sent to the primary partiesalone.

"2. Assignment of Errors Nos. 2 and 4 had been exhaustively discussed andpassed upon in the Order dated April 11, 2000.

"3. On Assignment of Error No. 3, appellant failed to appreciate the full supportof the decision of the Supreme Court in the case of MEDINILLA vs. CSC, et al.,when it said that the hiring of new recruits during reorganization is notprohibited. What appellant overlooked was the fact that the Supreme Courtfurther said thus: ‘The preference given to permanent employees assumes thatemployees working in a Department for longer periods have gained not onlysuperior skills but also greater dedication to the public service. x x x. If afterconsidering all the current employees, the Department Secretary cannot findamong them the person he needs to revive a moribund office or to upgradesecond rate performance, there is nothing in the Civil Service Law to preventhim from reaching out the other departments or to private sector provided allhis acts are bona fide for the best interest of public service and the personchosen has the needed qualification.’

Thus, from the foregoing, outsiders may be considered only when there are noqualified from among the employees in the old staffing pattern. In the instantcase, there were enough qualified to fill-in the positions in the new staffingpattern, as such the order of preference should have been strictly observed inthe filling-up of positions, to uphold the security of tenure clause.

"4. On the allegation that the separated employees were subjected to



http://pdfcrowd.com


evaluation, the same is premised on shaky grounds. A cursory perusal of thedocuments which were the basis for determining the old employees were suitedto the positions in the new staffing pattern, shows that the same allegedperformance and character of the employee were based on a narration of thesame by the head of the unit and a summary made by the HRMO, with noevidence in support thereof, like the Performance Evaluation Ratings, ServiceRecords and Training Attended, among others. From the said set of document,no ranking was made to determine the relative fitness and credentials of theemployees as against the others, to aid the Placement Committee indetermining the best qualified for the position."

Records show that in Sangguniang Bayan (SB) Resolution No. 097-98 dated July 28, 1998, the SB of SanJuan, Leyte, authorized Mayor Buling to re-organize the staffing pattern of the municipal government of San Juan. InSB Resolution No. 117-98 dated August 25, 1998, the municipality’s new staffing pattern was created. SBResolution No. 117-98 was later amended by SB Resolution No. 130-98 dated September 14, 1998. Under the newstaffing pattern, forty-nine (49) positions were created out of the sixty-six (66) existing positions. Thus, a total ofseventeen (17) positions were abolished.

As a result of the reorganization, sixteen (16) employees with permanent appointments were separated fromthe service; five (5) were re-appointed to positions higher than those they previously held; nine (9) were re-appointedto positions lower than those they occupy prior to the reorganization; three (3) new recruits were issued permanentappointments; and three (3) employees holding casual appointments were issued permanent appointments.

Only twelve (12) of the terminated employees and three (3) of those re-appointed filed an action before theCSCRO No. VIII, questioning the legality of the action taken by Mayor Buling. They are:

Those who were terminated:

NAME POSITION1. Alfaro, Ludger Community Affairs Asst. II



http://pdfcrowd.com


2. Corbete, Philip Cemetery Caretaker3. Mercado, Isidore Utility Worker I4. Obeda, Pacita Day Care Worker5. Vero, Corazon Day Care Worker6. Lacano, Simaco Labor Foreman7. Cambaya, Romulo Laborer I8. Timkang, Marcelino Laborer I9. Gazo, Tartacio Laborer I10. Segador, Disodedit Laborer I11. Mendoza, Ma. Wendy Revenue Collection Clerk I12. Magno, Emma Revenue Collection Clerk I

Those who were re-appointed to positions lower than that they occupy prior to the re-organization:

NAME POSITION1. Fortuna, Bonifacio Mun. Planning & Dev’t. Coord.2. Misoles, Aleli Asst. Registration Officer3. Malubay, Trindad Midwife II

On account of the failure of Mayor Buling to comment on the complaint, despite due notice, CSCRO No. VIIIconsidered Mayor Buling to have waived his right thereto and CSCRO No. VIII decided the case on the basis of theevidence thus presented.

In its Order No. 99-001 dated December 20, 1999, CSCRO No. VIII ruled that the reorganization wasundertaken in violation of Republic Act No. 6656 (An Act to Protect the Security of Tenure of Civil ServiceOfficers and Employees in the Implementation of Government Reorganization) and the Rules onGovernment Reorganization.



http://pdfcrowd.com


As a consequence, CSCRO No. VIII set aside the termination of Mercado, Mendoza, Magno, Alfaro, Corbete,Obeda, Vero, Lacano, Cambaya, Timkang, Gazo and Segador and directed their re-appointment in the new staffingpattern to comparable or equivalent positions, or in their absence, to positions lower in rank. Also, CSCRO No. VIIIruled that the appointment of Fortuna and Misoles to positions lower than those held by them before thereorganization was made in violation of the rules on reorganization. However, it upheld the validity of the re-appointment of Malubay to a lower position.

CSCRO No. VIII likewise ruled that the separated employees were not given the preferential right to be re-appointed to the new positions created in the new staffing pattern. Particularly, Alfaro (Community Affairs AssistantII), Corbete (Cemetery Caretaker), Obeda (Day Care Worker), Lacano (Labor Foreman), Cambaya, Timkang andSegador (Laborer I) were separated from the service notwithstanding the fact that comparable or equivalentpositions in the new staffing remain unfilled. Further, it declared that no evidence was adduced to show that theemployees’ qualifications were evaluated and that they failed to qualify to any of the newly created positions to justifytheir separation.

CSCRO No. VIII ruled that since Mercado has a preferential right to be re-appointed to his former position asUtility Worker, he should be re-appointed to said position. It then declared that the re-appointment of Canlas, formerElectrician I, as Utility Worker, has violated Mercado’s vested right to his former position. The same is true in thecase of Mendoza and Magno, both previously holding the position of Revenue Collection Clerk I. Their right to be re-appointed to the same position were also violated when the Mayor appointed Edward Bilocura, a new recruit, andTirol, formerly Clerk II.

CSCRO No. VIII also directed the re-appointment of Fortuna to his former position as Municipal Planning andDevelopment Coordinator (MPDC) which was recreated in the new staffing pattern. As regards Fortuna’sreappointment as Assistant Registration Officer (ARO), the CSCRO No. VIII declared that his preferential right to bere-appointed as MPDC is impaired because ARO is a position lower in rank than the former. In the case of Malubay,her re-appointment to a lower position was upheld. Only one (1) of the two (2) Midwife positions was recreated in thenew staffing pattern. The CSCRO No. VIII declared that such reappointment will not deprive Malubay to receive thesalary attached to the position of Midwife II.



http://pdfcrowd.com


By reason of the adverse decision, the Municipality moved for a reconsideration. The pertinent portions read,as follows:

"RE xxx SEGADOR, XXX GAZO, XXX TIMKANG, and GAMBAYA wereSEPARATED for the simple reason that their plantilla as LABORERS (sic) I is beingABOLISHED.

"xxx due to the financial constraint. Xxx LABORERS function only in there areinfrastructure projects of the municipality and when they are being done by administration.Xxx government project it is undertaken by a private entity xxx.

"xxx If there is really a need a laborer if is hired in case to case basis. xxx just hireEMERGENCY WORKERS after which said emergency workers would be TERMINATEDupon accomplishment xxx.

"xxx Section 7 of the Rules on Government Reorganization xxx. But what is theequivalent or position next in rank in the plantilla of laborers? There is NONE.

"RE XXX LACANO was not reappointed as LABOR FOREMAN because theplantilla of LABORER was ABOLISHED for reasons cited xxx. xxx What is there to"foreman" or supervise if there are no laborers.

"xxx in the new staffing pattern, he (Lacano) was appointed as Accounting Clerk Ixxx This is contrary to his claim that he was separated. Xxx the Civil Service Commissiondisapproved his appointment.

"IN RE xxx CORBETE: In the old plantilla, xxx Corbete was appointed as CemeteryCaretaker. The position was ABOLISHED for the main consideration that he was NOTfunctioning as Cemetery Caretaker but was assigned as water bill collector.

"As to xxx Mercado, he was separated on two (2) grounds:



http://pdfcrowd.com


"1. POOR PERFORMANCE and 2.) being OUTRANKED by other applicants in thepersons of xxx TIMKANG and xxx CAMBAYA

"xxx CAMBAYA xxx. Before the Reorganization, he was appointed as SupplyChecker in the Office of the Treasurer but ACTUALLY functioning as UTILITYMAINTENANCE WORKER xxx

"xxx TIMKANG xxx was appointed as LABORER xxx way back on June 29, 1998.

"xxx The Placement Committee finds him to be very diligent and effective as aUtility Worker. Hence, he was appointed as Utility Worker in the new staffing patter (sic).

"RE XXX VERO & XXX OBEDA:

"Their positions as Day Care Workers (sic) were ABOLISHED under the newstaffing pattern. The reason for this is that there is NO more Day Care Workers in themunicipal level. It is being DEVOLVED to the BARANGAY level. Actually, if truth be toldtheir actual jobs before the Reorganization were only limited to the POSTING andRECEIVING mails which can done easily by the Municipal Secretary.

"xxx RE xxx FORTUNA and xxx MIZALES

"Much as the xxx Committee would like to re-appoint xxx Fortuna to his formerposition as Municipal Planning and Development Officer (sic) but then no less thanIRENEO A. MORALES concluded that xxx he is NOT qualified. xxx Neither is he qualifiedto be appointed as Civil Registration Officer. Devoid of political complications, he wasappointed as Assistant Civil Registration Officer in order not to be separated xxx.

"The appointment of xxx Fortuna as Assistant Civil Registration (sic) was withoutcomplications because xxx MIZOLES would be dislodged from her former appointment as



http://pdfcrowd.com


Assistant Civil Registration Officer. The xxx Committee thought that by appointing Fortunaxxx as Assistant Civil Registration Officer, xxx MIZOLES could easily be xxx appointed asAccounting Clerk II.

"xxx MALUBAY:

"The xxx Committee ADMITS that her appointment was downgraded from Midwife IIto Midwife I. The reason was there is still much to be desired in terms of MERIT andFITNESS.

"xxx MAGNO and xxx MENDOZA:

"The observation of the xxx Committee on xxx Magno was that when she wasappointed as Revenue Collection Clerk since March 3, 1998 she was not effective, andsubsequently her assignment was to do posting job in the Office of the Treasurer.

"As of xxx Mendoza, her summary recommendation indicates a poor/slow startwhich can mean as barely able to satisfy performance. She is still under probation in theold staffing pattern. If accommodated to other offices, she would be OUTRANKED by otherapplicants in terms of PERFORMANCE and SENIORITY.

"xxx ALFARO:

"xxx Alfaro was separated because his position was abolished being not listed asmandatory position in accordance with the Local Government Code, and thereforeOPTIONAL. He could be absorbed in other offices as he lacks fitness and meritdemanded xxx. We are attaching the ANSWER with all the annexes thereto xxx on thecomplaint lodged against him for the xxx Commission to appreciate xxx. xxx Alfaro is aDISGRACE to the public service.

"xxx The organizational pattern was established within the financial capability of the



http://pdfcrowd.com


local government taking into consideration the budgetary limitation provided for in Section325 of R.A. 6656. Xxx

"xxx the number of positions totalled 79, whereas in the new staffing pattern thenumber of positions created was only 61 xxx

"In the old staffing pattern, the number of employees totalled 64, whereas in the newstaffing pattern, the number of employees is only 53. The Placement Committee considersthe rule that ‘where the number of incumbents to be placed exceed the number of positionin the new staffing pattern, they will be compared in terms or (sic) relative fitness and themost qualified and competent shall be preferred. xxx"

The motion for reconsideration was partly granted to the extent that the reappointment of Fortuna to the lowerposition of Assistant Registration Officer was found in order. Specifically, the CSCRO No. VIII Order dated April 11,2000 provides, as follows:

"Thus, if xxx Fortuna is to be reappointed to his former position as MPDC under thenew staffing pattern, he should show proof that he qualifies to the said position. In theinstant case, his educational qualification shows that he is a graduate of a college degree,his highest educational attainment, having finished only four years of study of Bachelor ofScience in Mechanical Engineering (BSME). As such, he falls short of the qualificationprescribed by the Code for the position of MPDC. Thus, his demotion to the position ofAsst. Registration Officer xxx, where, the education requirement is only completion of 2years college studies, he is found to be qualified to the said position. xxx

"WHEREFORE, xxx, this Office modifies its earlier decision contained in CSCRO 8Non-Disciplinary Case Order No. 99-001 dated December 20, 1999, only as regards thecases of xxx Fortuna. As such, the action of approval on the appointments of xxx Fortuna xx as Assistant Registration Officer xxx are declared to be in order."



http://pdfcrowd.com


On account of the denial of the motion, Mayor Buling filed the instant appeal, assailing the validity of CSCRONo. VIII Non-Disciplinary Case Order Nos. 99-001 and 99-099.

The issue to be resolved is whether Civil Service Commission Regional Office No. VIII Non-Disciplinary CaseOrder Nos. 99-001 dated December 20, 1999 and 99-099 dated April 11, 2000 were rendered in accordance withlaw and jurisprudence.

After a careful evaluation of the records of the case, the Commission rules in the affirmative.

Before proceeding to discuss the rules on reorganization and the issues raised in the appeal, theCommission shall address the issue relative to the alleged failure of CSCRO No. VIII to furnish Atty. Reuben M.Tadena, Mayor Buling’s counsel of record, of CSCRO No. VIII Order dated April 11, 2000 (motion forreconsideration to CSCRO No. VIII Order dated December 20, 1999). Atty. Tadena represented that the RegionalOffice deliberately did not give him a copy of said Orders which resulted in his failure to state the date of receiptthereof on the instant appeal and has brought "havoc to the re-organizational set-up already implemented" by theMunicipality.

The Commission takes exception to the assertion that the CSCRO VIII has a "hidden agenda" in notproviding Atty. Tadena a copy of the CSCRO No III Orders despite his being the counsel of record. The UniformRules on Administrative Cases does not require that decisions or orders by the Commission or any of its RegionalOffices be exclusively furnished the counsel of record. On the contrary, it states that there is a valid service whencopies of decisions are given either to the counsel or the party concerned. Specifically, second paragraph ofSection 84 provides, as follows:

"Section 84. Computation of Period. xxx

"Copies of decisions and other communications shall be served on counsel butreceipt by either counsel or party shall be deemed to be a valid service. xxx"

The issue on the service of the assailed Orders having been disposed of, the Commission will now considerthe manner by which SB Resolution No. 097-98 dated July 28, 1998 as amended in SB Resolution No. 130-98



http://pdfcrowd.com


dated September 14, 1998 was implemented by Mayor Buling.

Except for the re-appointment of Fortuna and Misoles to the lower positions of Assistant Registration Officerwith Salary Grade (SG) 8 and Accounting Clerk II with SG 6 from their former positions of Municipal Planning andDevelopment Coordinator with SG 24 and Assistant Civil Registration Officer with SG 8, respectively, theimplementation of the reorganization by the City Government of San Juan, Southern Leyte, was undertaken inviolation of Republic Act No. 6656 or Act for brevity, Rules on Government Reorganization or the Rules forbrevity and pertinent jurisprudence. This is taking into account the termination from the service of twelve (12)employees appointed under permanent status, the appointment under permanent status of three (3) new recruits andthe reappointment of three (3) casual employees to higher positions under permanent status in the new staffingpattern.

At the outset, it should be noted that the notices of termination all dated December 8, 1998 effective January8, 1999 given to appellants Segador, Gazo, Mercado, Cambaya, Timkang, Magno, Mendoza, Corbete, Vero,Obeda and Alfaro by Mayor Buling suffered from infirmities. The notices merely informed said employees of theseverance of their employment and the prioritization of the payment of their separation pay from the savings of theMunicipality without extending to them the benefit of being heard of their side. The right to be given the opportunity tobe heard is guaranteed under Section 10 of the Rules on Government Reorganization, to wit:

"Section 10. Notice and Hearing -

"(1) Officers and employees who upon evaluation and assessment will be laid off forany of the valid causes as provided for in these rules, shall be notified thereof and shall begiven opportunity to present their side to assure utmost objectivity and impartiality."(underscoring ours)

Thus, in CSC Resolution No. 99-2491 (Bautista, Renato C. dated November 10, 1999) the Commissiondeclared that the notice of termination served to an employee was defective for having been issued in violation of theemployee’s right to be heard. This right is further guaranteed in Section 4 of the same Rules which provide, asfollows:



http://pdfcrowd.com


"SECTION 4. Prohibition Against Removal - No officer or employee in the careerservice shall be removed as a result of a reorganization except for valid cause asprescribed herein and after due notice and hearing." (underscoring provided)

On this score alone, it is beyond doubt that the execution of the reorganization was made in blatant violationof the Rules. Consequently, the Commission can dismiss outright the appeal of Mayor Buling without furtherdiscussion. It behooves upon the Commission, however, to proceed discussing the appeal in the interest of fair play.

The termination of the services of Alfaro (Community Affairs Assistant II), Corbete (Cemetery Caretaker),Mercado (Utility Worker I), Obeda and Vero (Day Care Worker) Lacano (Labor Foreman), Cambaya, Timkang,Gazo and Segador (Laborer I) and Mendoza and Magno (Revenue Collection Clerk I) was effected in violation ofRepublic Act No. 6656. In particular Section 4 thereof which bestows upon the re-organized employees holdingappointments under permanent status the preferential right to be re-appointed to positions in the new plantilla whichare comparable or equivalent to those held by them prior to the reorganization or in case there are not enoughcomparable positions, to a position lower in rank. Specifically, Section 4 provides:

"Section 4. Officers and employees holding permanent appointments shall begiven preference for appointment to the new positions in the approved staffing patterncomparable to their former positions or in case there are not enough comparablepositions, to positions lower in rank."

Pursuant to the foregoing provision, the preferential right of reappointment in the new positions in theapproved staffing pattern is analogous to the "right of first refusal" being extended to and /or exercised by existingstockholders under the Corporation Code. In essence, the affected employees have the choice of either to acceptsaid comparable or equivalent positions under similar employment status, or opt for separation with benefits. In otherwords, the choice is theirs (Resolution No. 94-4582, Dionisio, Rhodora dated August 18, 1994).

In the case at bar, no evidence was shown by the Municipality to prove that such preferential right ofreappointment was accorded to said employees. Or that it was extended to them but they refused such offer andopted to retire. Likewise, there was no showing that said employees’ qualifications were assessed for possible



http://pdfcrowd.com


appointment to such comparable positions and they failed to qualify (Res. No. 99-2624, Revalez, Daisy G. datedNovember 26, 1999) pursuant to the aforequoted Section 10 of the Rules on Government Reorganization.

The documents submitted herein showing that the affected employees were evaluated miserably fail tomeasure up to the minimum requirements set by law for assessing an employee’s credentials. Section 6 of theRules laid down four (4) factors that should be considered in determining the most competent and qualifiedemployee for reappointment, as follows:

"SECTION 6. Relative Fitness - Where the number of incumbents to be placedexceed the number of positions in the new staffing pattern, they shall be compared interms of relative fitness and the most qualified and competent shall be preferred. In thisrespect, the following factors shall be considered:

"(1) Performance for the last two (2) years;"(2) Education and Training;"(3) Experience and Outstanding Accomplishments; and"(4) Physical Characteristics and Personality Traits."

The records of the case show that not only has the Placement Committee prepared their evaluation and thecorresponding recommendation of the employee concerned on the basis of the personal recollection but made thesame individually not collectively as a Committee as mandated under Section 9 of the Rules. Specifically, Item 3categorically imposes upon the members of the Committee the duty to rate the qualifications of the employees intheir capacity as members of the Committee not independently of each other. Said Item reads, as follows:

"SECTION 9. Selection and Placement of Personnel xxx

"(1) xxx"(2) xxx"(3) The Committee shall evaluate/assess the qualifications and competence of theapplicants and other employees in the agency based on the criteria and preference



http://pdfcrowd.com


provided for these Rules."

On this premise, it is evident that the services of Alfaro, Corbete, Mercado, Obeda, Vero, Lacano, Cambaya,Timkang, Gazo, Segador, Mendoza and Magno were immediately terminated when their positions were declaredabolished and served each of them notice of termination (CSC Resolution No. 00-0065 dated January 10, 2000,Dabu, Nolasco).

In Alfaro’s case, the post he occupied prior to the questioned reorganization was Community AffairsAssistant II (Salary Grade 8) which was abolished. However, under the new staffing pattern two (2) new offices werecreated namely, Administrative Assistance Office and Legal Assistance Office. In said offices, there are unfilledpositions which are comparable to or equivalent to Alfaro’s position. Instead of evaluating said employee’squalification for possible appointment to any of positions in the newly created offices, the Mayor disregardedAlfaro’s right to preferential appointment and terminated his services.

The lone position of Cemetery Caretaker (SG 2) held by Corbete was also abolished. So were the four (4)positions of Laborer (SG 1) occupied by Cambaya, Timkang, Gazo and Segador. Similarly, the four (4) positions ofDay Care Worker (SG 6), two of which were held by Obeda and Vero; the position of Labor Foreman (SG 6) held bySimaco was not also recreated in the new staffing pattern. Worth noting, however, was the creation of three (3) newDriver I positions in the new plantilla of positions. Instead of according these employees the preferential right to bereappointed to said Driver I positions, three (3) employees holding casual appointments namely: BeinvenidoGarrido, Uldarico Balabis and Romeo Viscayda were appointed under permanent status in violation of thePreference for Appointment enunciated under Section 7 of the Rules on Government Reorganization, to wit:

"SECTION 7. Preference for Appointment. Subject to the preceding section, preference forappointment to the new positions in the approved staffing pattern shall be in the following order:

"(1) Officers and employees holding permanent appointments to positions comparable totheir former positions or in case there are not enough comparable positions to positionsnext lower in rank;



http://pdfcrowd.com


"(2) Temporary employees who possess the necessary qualification requirements andappropriate civil service eligibility for permanent appointment;

"(3) Casual employees who possess the necessary qualification requirements andappropriate eligibility for permanent appointment;" (underscoring provided)

Evidently, employees appointed under casual status come in third in the order of preference. While the Rulesequally recognize their right to be preferred in the filling of positions in the new staffing pattern, such right, however, isconditioned on the prior placement of employees appointed under permanent and temporary status. In other words,the non-appointment of the latter employees extinguishes the right of the former for appointment.

It is equally manifest from the records the failure of Mayor Buling to provide the Commission of any evidenceto show that the terminated employees’ qualifications were evaluated and that they failed to satisfy minimumstandards to justify his action in appointing said casual employees, or that the terminated employees refusedappointment to any of the Driver I positions.

The same violation was perpetuated in Mercado’s case. Under the old staffing pattern, Mercado wasappointed under permanent status as Utility Worker I (SG 1) in the General Services Division. In the approvedplantilla, three (3) of said positions were recreated under the same Division. In lieu of Mercado, Renato Canlas,formerly Electrician I (SG 4) and Alfredo Timkang (Laborer I) were appointed to two (2) of such items and thirdremain unfilled. The recreated position of Laborer I is an equivalent position to which Mercado enjoys the preferentialright for reappointment. Although, Canlas is similarly accorded by the Rules of the right to preferential reappointment,such right, however, pertains to his former position of Electrician I not to Laborer I which is neither an equivalent nor acomparable position to the former. In addition, there is no proof that Laborer I position is the next lower position toElectrician I. Thus, Mercado enjoys preference of appointment to the position of Laborer I this being the equivalent, ifnot the same position, he formerly held.

Terminated employees Mendoza and Magno whose positions of Revenue Collection Clerk I (SG 5) were alsoabolished as a result of reorganization should be afforded the preference for appointment to the recreated positionsof Revenue Collection I in the new staffing pattern. In the approved plantilla, the number of positions was reduced



http://pdfcrowd.com


from eight (8) to four (4). Of the four (4), two appointments were extended to its former incumbents; the remainingtwo (2), however, were extended to Edward Bilocura, a new recruit, and the other to Angelita Tirol who waspreviously holding the position of Clerk II (SG 5). Pursuant to the second paragraph of Section 4 of the Act, theappointment of new recruits are allowable only in cases where all employees affected by the reorganization areappointed in the new staffing pattern and in the order provided for under aforequoted Section 7 of the Rules and onlyin three exceptional instances, namely: policy determining, primarily confidential and highly technical in nature. Foremphasis, the second paragraph of the Section is reproduced, as follows:

"SECTION 4. xxx

"No new employees shall be taken in until all permanent officers and employeeshave been appointed, including temporary and casual employees who possess thenecessary qualification requirements, among which is the appropriate civil serviceeligibility, for permanent appointment to positions in the approved staffing pattern, in casethere are still positions to be filled, unless such positions are policy-determining, primarilyconfidential or highly technical in nature."

Thus, there are two (2) instances enumerated in the law before new recruits may be hired, as follows: 1) allqualified officers and employees, including those holding temporary and casual appointment, are appointed, andthere are remaining positions to be filled up after complying with the first requisite or 2) the positions to which thenew recruits will be appointed are identified as policy-determining, primarily confidential or highly technical in nature.In the case at bar, the two (2) requirements are wanting. In the first place, twelve (12) employees holding permanentappointments were separated from the service; secondly, the position of Revenue Collection Clerk I is neither apolicy-determining nor primarily confidential or highly technical in nature. As the position title connotes, a RevenueCollection Clerk I performs clerical functions. Thus, the appointment of Bilocura lacks legal basis.

As to the appointment of Tirol, the records show that the position formerly held by her, Clerk II, was recreatedin the Office of the Sangguniang Bayan. Obviously, she has the right of preferential appointment to said position notto the position of Revenue Collection Clerk I which the law bestows upon Mendoza and Magno, the formeroccupants. Such being the case, the Tirol’s appointment lacks basis.



http://pdfcrowd.com


Going now to the arguments raised by the appellant.

Appellant Buling argues that the abolition of the position of Laborer I occupied by Cambaya, Timkang, Gazoand Segador is intended to exercise the Municipality’s right to hire laborers on an emergency basis co-terminus withthe completion of a particular project pursuant to Section 77 of the Local Government Code. The pertinent portionof the Section reads, as follow:

"SEC. 77. Responsibility of the Human Resources and Development. - xxxProvided, That the local chief executive may employ emergency or casual employees orlaborers paid on a daily wage or piecework basis and hired through job orders for localprojects authorized by the sanggunian concerned, without need of approval or attestationby the Civil Service Commission:: Provided, further, That the period of employment ofemergency or casual laborers as provided in this Section shall not exceed six (6) months."

The proviso does not find application in the case under review. It speaks of hiring of emergency personneland not the termination of services of its employees by reason of reorganization. The governing rule, therefore, in thecases of reorganization is Republic Act No. 6656 as well as the Rules on Government Reorganization, implementingsaid RA formulated by the Commission. The appellant failed to consider the fact that the first part of the citedSection empowers the Commission to regulate all personnel actions effected by the local chief executive, to wit:

"SEC. 77. Responsibility of the Human Resources and Development. - The chief ofevery local government unit shall be responsible for human resources and development inhis unit and shall take all personnel actions in accordance with the Constitutionalprovisions on civil service, pertinent laws, and rules and regulations thereon, includingsuch policies, guidelines and standards as the Civil Service Commission may establishxxx"

This includes reorganization as laid down by the Commission in the Rules on Government Reorganization.Thus, reorganization of local government units is not within the exclusive domain of the local chief executive.



http://pdfcrowd.com


It may be worthwhile to mention that Sections 76 and 78 of the Code limit the power of the local governmentunits in the formulation of the staffing pattern to the rules of this Commission. Said sections are reproducedhereunder, as follows:

"SEC. 76. Organization Structure and Staffing Pattern. - Every local governmentunit shall design and implement its own organizational structure and staffing pattern takinginto consideration its service requirements and financial capability, subject to theminimum standards and guidelines prescribed by the Civil Service Commission.

x x x

"SEC. 78. Civil Service Law, Rules and Regulations, and Other Related Issuances.- All matters pertinent to human resources and development in local government unitsshall be governed by the civil service law and such rules and regulations and otherissuances promulgated pursuant thereto, unless otherwise specified in this Code."

The appellant further advances the reason that there is no equivalent or next lower position to the Laborer Ipost which justified his action in terminating the services of the occupants. This argument is starkly contradicted bythe records of the case. It showed that after the reorganization, a total of six (6) personnel were hired as Laborer,albeit, under a contract of service. Two (2) of whom were new recruits. The plantilla of employees under a contract ofservice is not excluded from or independent of the approved staffing pattern which would otherwise support the viewthat former incumbents of the Laborer positions cannot be reappointed to a comparable or equivalent position. Theplantilla of personnel under a contract of service is obviously included in the new staffing pattern of which the right topreferential reappointment to equivalent or comparable positions should be enforced. Conversely, new recruits arebarred for appointment thereto.

With the abolition of the Laborer positions, Mayor Buling contended that it stands to reason that the positionof Labor Foreman should also be abolished as there are no laborers to be supervised by the Foreman. Theargument lacks basis. Mere abolition of positions does not ipso facto warrant the termination of services of theholder thereof. This was declared by the Commission in CSC Resolution No. 93-5810 dated December 14, 1993



http://pdfcrowd.com


(Re: Rellin, Bonifacio) wherein it ruled that mere declarations in the Placement List that a position is abolished arenot sufficient justification to terminate the services of permanent employees who enjoy the right to preferentialreappointment in the new staffing pattern. The abolition of the Laborer post does not have a bearing, direct orindirect, to the reappointment or non-reappointment of Lacano as Labor Foreman.

As regards the reappointment of Lacano as Accounting Clerk I which was later disapproved by theCommission for the reason that he failed to meet the prescribed eligibility, it is not deemed a compliance with therule of preferential right of reappointment. On the contrary, such reappointment further bolsters the Commission’sfindings of the Municipality’s intention to terminate his services and the failure of its Placement Committee toevaluate and assess Lacano’s qualifications. Obviously, had the Committee dutifully performed its function ofassessing Lacano’s credentials it would not have recommended him for reappointment to said position.

The Commission likewise cannot find justification to the Municipality’s action in severing Corbete’semployment on the mere ground that he was not functioning as Cemetery Caretaker, the appointed position, but aswater bill collector. It is not Corbete’s fault that he was not allowed to discharge the duties of the appointed position.Non-performance of a duty through no fault of the holder is not a valid ground for terminating the services of theincumbent. Hence, the abolition of the position of Cemetery Caretaker cannot ipso facto remove Corbete from theMunicipality’s employ.

As regards the termination of Mercado’s services as Utility Worker I, there is no sufficient basis thereto.Mayor Buling’s allegations that Mercado has demonstrated poor performance and was outranked by Timkang andCambaya are not substantiated by evidence. As earlier noted, no proper assessment of the employees concernedwas accomplished by the Placement Committee.

The same findings hold true in the case of Vero and Obeda whose positions as Day Care Worker wereabolished. In terminating their services, Mayor Buling contended that the position of Day Care Worker was alreadydevolved from municipal to the barangay level. And that the actual functions of said employees are limited to postingand receiving of mails. The devolution of the position and the non-performance of the duties and responsibilitiesattached to the position of Day Care Worker are peripheral to Vero’s and Obeda’s preferential right ofreappointment. It should be noted that notwithstanding the devolution of Day Care Worker to the barangay level, such



http://pdfcrowd.com


position still exists in the Municipality’s plantilla prior to the reorganization and holders thereof continue to renderservice to said local government unit. Such being the case, Vero and Obeda are equally entitled to enjoy thepreference of appointment in the approved staffing pattern. The Act is clear on the matter. The right is accorded toemployees holding appointments under permanent status without regard to whether the concerned employee’sposition has been devolved for as long as the position is existing in the old plantilla and their services wereterminated by reason of the reorganization.

Anent employees Mendoza and Magno, their positions of Revenue Collection Clerk I (SG 5) were alsoabolished as a result of reorganization. The reason given by the Mayor in not reappointing them in the new staffingpattern is because Mendoza can barely deliver satisfactory performance, and Magno was not effective in theperformance of her functions. However, no evidence to support this claim was presented. Again and as earlierfound, the proper procedure in assessing the Municipality’s employees was not observed.

Alfaro’s service as Community Affairs Assistant was terminated for the following reasons: 1) the position isnot mandatory under Local Government Code; and 2) he cannot be absorbed in other Municipality’s offices becausehe lacks the merit and fitness demanded of a government employee. To validate the claim that Alfaro is wanting infitness to hold public office, the Mayor submitted the former’s answer to the complaint filed by the latter. TheCommission cannot sustain the Mayor’s view that Alfaro is unfit to be reappointed in the new staffing pattern. First,the fact that the position of Community Affairs Officer I is not a mandatory position is immaterial to the Alfaro’spreferential right of reappointment. This is because the right is available for as long as the position is existing in theold plantilla, the services rendered by the holder thereof redound to the benefit of the Municipality and the saidposition was abolished by reason of the reorganization. All these elements are present in Alfaro’s case.

The same holds true relative to the existence of a complaint filed by the Mayor against Alfaro. Mere pendencythereof does not disqualify the employee from availing of the preferential right of reappointment. Neither does itprove unworthiness to hold office. It should be noted that the filing of complaint is not tantamount to a finding of guilt,at most, it may constitute only a derogatory information. In this connection, the Municipality failed to observe theprovisions of Section 10 of the Rules which mandate the conduct of hearing in cases where the employee concernedhas derogatory information; viz:



http://pdfcrowd.com


"SECTION 10. Notice and Hearing -

"(1) xxx

"(2) Officers and employees with derogatory information against them who are foundqualified for retention shall upon termination of hearing and if the evidence warrants beformally and administratively charged they shall nevertheless be appointed in the newstaffing pattern in accordance with Section 7 of these Rules. Xxx"

The right of Alfaro to be extended the preferential right of reappointment in the new staffing patternnotwithstanding the pendency of a complaint is clear from the above quoted provisions. This is taking into accountthe fact that the required hearing was not held and no assessment of the Municipality’s employees was properlyundertaken.

Mayor Buling claimed that the Commission is not authorized to rule on the validity of the abolition of positionsduring a reorganization as pronounced in CSC Resolution No. 94-4582 dated August 18, 1994 (supra). The rulestands. The right to inquire into the wisdom of the Municipality’s legislative act in reorganizing the municipalgovernment is outside the purview of the Commission’s mandate. However, this proscription does not extend to theCommission’s power and the obligation to pass upon the validity in the implementation of the reorganization asprovided for under Section 12 of the Act. The Section specifically imposes a duty upon the CSC to promulgate thenecessary rules and regulations to implement the provisions thereof. Hence, in said Resolution, the Commissionstated, as follows:

"Hence, without passing upon the validity of SB Resolution Nos. 7-20B-S-92 and 8-31S-92, the Commission has jurisdiction to rule on the legality of the implementation ofthe reorganization made by the Municipality of Cardona, xxx, the same involvingpersonnel matters."

Finally, on the issue on the right of the Municipality to hire new recruits, the appellant insists on their right toemploy new personnel based on the ruling of the Supreme Court in the case of Medinilla vs. Civil Service



http://pdfcrowd.com


Commission (194 SCRA 278). For clarity, the pertinent portion is reproduced, as follows:

"The preference given to permanent employees assumes that employees workingin a Department for longer periods have gained not only superior skills but also greaterdedication to the public service. This is not always true and the law, moreover, does notpreclude the infusion of new blood, younger dynamism, or necessary talents into thegovernment service. If after considering all the current employees, the DepartmentSecretary cannot find among them the person he needs to revive a moribund office or toupgrade second rate performance, there is nothing in the Civil Service Law to prevent himfrom reaching out to other departments or to private sector provided all his acts arebonafide for the best interest of the public service and the person chosen has the neededqualifications. In the present case, there is no indication that the petitioner was chosen forany other reason except to bring in a talented person with the necessary eligibilities andqualifications for important assignments in the Department. x x x."

The employment of new personnel in the new staffing pattern comes with the obligation on the part of theappointing authority to consider all present employees. This is a condition precedent. This is not obtaining in thecase on hand. As earlier observed, all employees of the Municipality have not been evaluated in accordance with theprocedure and criteria set by law.

The issue relating to the admissibility and the evidentiary value of the affidavits executed by Antonio S. Enoand Cecilio G. Sibunga will no longer be considered in the instant appeal. The fact sought to be proven therein hasalready been established by the Commission from the records of the case.

WHEREFORE, the appeal of Mayor Erwin A. Buling is hereby DISMISSED. Accordingly, Civil ServiceCommission Regional Office (CSCRO) No. VIII Non-Disciplinary Case Order Nos. 99-001 dated December 20,1999 and 99-099 dated April 11, 2000 are hereby affirmed.

Quezon City, APR 10 2002



http://pdfcrowd.com


(Signed)JOSE F. ERESTAIN, JR.

Commissioner(Signed)

KARINA CONSTANTINO-DAVIDChairman

(Signed)J. WALDEMAR V. VALMORES

CommissionerAttested by:

(Signed)ARIEL G. RONQUILLO

Director III

CPS/AGR/pvp/cm08-2002JTS/RTM/X1/X8/jca175NDC-99-093420001205-010/buling’r / rad82



http://pdfcrowd.com

BULING, Erwin A. of Services; Appeal x · PDF filePRO version Are you a developer? Try out the...

Documents

Transcript of BULING, Erwin A. of Services; Appeal x · PDF filePRO version Are you a developer? Try out the...