GONZALO S. GO, JR.,                                         Petitioner,

                  -  versus  -

COURT OF APPEALS and OFFICE OF THE PRESIDENT,                                      Respondents.

G.R. No. 172027

Present:

CORONA, C.J.,CARPIO,CARPIO MORALES,VELASCO, JR.,NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ, andMENDOZA, JJ.

Promulgated:

July 29, 2010x----------------------------------------------------------------------x

 D E C I S I O N

 VELASCO, JR., J.: 

Assailed in this Petition for Certiorari[1] under Rule 65 are the Resolutions dated August 17, 2005[2] and January 31, 2006[3]of the Court of Appeals (CA) in CA-G.R. SP No. 90665.

 The facts are undisputed. Petitioner Gonzalo S. Go, Jr. (Go) was appointed

in 1980 as Hearing Officer III of the Board of Transportation (BOT), then the government’s land transportation franchising and regulating agency, with a salary rate of PhP 16,860 per annum.[4]  On June 19, 1987, Executive Order No. (EO) 202[5] was issued creating, within the Department of Transportation and Communications (DOTC), the Land Transportation Franchising and Regulatory Board (LTFRB) to replace the BOT.  The issuance placed the LTFRB under the administrative control and supervision of the DOTC Secretary.[6]  

 On February 1, 1990, the DOTC Secretary

extended Go a promotional appointment as Chief Hearing Officer (Chief, Legal Division), with a salary rate of PhP 151,800 per annum.[7]  The Civil Service Commission (CSC) later approved this permanent appointment.[8]  In her Certification[9] dated October 27, 2005, LTFRB Administrative Division Chief Cynthia G. Angulo stated that the promotion was to the position of Attorney VI, Salary Grade (SG)-26, obviously following budgetary circulars allocating SG-26 to division chief positions. 

 The instant controversy started when the

Department of Budget and Management (DBM), by letter[10] of March 13, 1991, informed the then   DOTC Secretary of the erroneous classification in the Position Allocation List (PAL) of the DBM of two positions in his

department, one in the LTFRB and, the other, in the Civil Aeronautics Board (CAB).  The error, according to the DBM, stemmed from the fact that division chief positions in quasi-judicial or regulatory agencies, whose decisions are immediately appealable to the department secretary instead of to the court, are entitled only to Attorney V, SG-25 allocation.  Pertinently, the DBM letter reads:

 Under existing allocation

criteria division Chief positions in x x x department level agencies performing quasi-judicial/regulatory functions where decisions are appealable to higher courts shall be allocated to Attorney VI, SG-26.  Division chief positions in quasi-judicial/regulatory agencies lower than departments such as the Civil Aeronautics Board (CAB) and the Land Transportation Franchising and Regulatory Board (LTFRB) where decisions are appealable to the Secretary of the DOTC and then the Office of the President shall, however be allocated to Attorney V, SG-25.[11]  (Emphasis supplied.)  After an exchange of communications between

the DBM and the DOTC, the corresponding changes in position classification with all its wage implications were implemented, effective as of April 8, 1991.[12]

  Unable to accept this new development where

his position was allocated the rank of Attorney V, SG-25, Go wrote the DBM to question the “summary demotion or downgrading [of his salary grade]” from SG-26 to SG-25.  In his protest-letter,[13] Go excepted from the main reason proferred by the DBM that the decisions or rulings of the LTFRB are only appealable to the DOTC Secretary under Sec. 6 of EO 202 and not to the CA.  As Go argued, the aforecited proviso cannot prevail over Sec. 9 (3) of Batas Pambansa Blg. (BP) 129, or the Judiciary Reorganization Act of 1980, under which appeals from decisions of quasi-judicial bodies are to be made to the CA.

 Ruling of the DBM Secretary & Office of the President

 On September 14, 1998, the DBM Secretary

denied Go’s protest, holding that decisions, orders or resolutions of the LTFRB are appealable to the DOTC Secretary.[14]  The DBM reminded Go that based on the department’s standards and criteria formulated pursuant to Presidential Decree No. (PD) 985 and Republic Act No. (RA) 6758,[15] the division chief of bureau-level agencies, like the LTFRB, is allocable to Attorney V, SG-25. 

 In time, Go sought reconsideration, with the

following additional argument:  LTFRB is similarly situated as another bureau-level agency under DOTC, the CAB, which is listed under Rule 43 of the Rules of Court as among the quasi-judicial agencies whose decisions or resolutions are directly appealable to the CA. 

 

Following the denial of his motion for reconsideration, Go appealed to the Office of the President (OP). 

On January 7, 2005, in OP Case No. 99-8880, the OP, agreeing with the ruling of the DBM and the premises holding it together, rendered a Decision dismissing Go’s appeal.

 The OP would subsequently deny Gonzalo’s

motion for reconsideration. Undaunted, Go interposed before the CA a

petition for review under Rule 43, his recourse docketed as CA-G.R. SP No. 90665.

 Ruling of the Court of Appeals

 By Resolution dated August 17, 2005, the

appellate court dismissed the petition on the following procedural grounds:  (a) Goresorted to the wrong mode of appeal, Rule 43 being available only to assail the decision of a quasi-judicial agency issued in the exercise of its quasi-judicial functions, as DBM is not a quasi-judicial body; (b) his petition violated Sec. 6 (a) of Rule 43; and (c) his counsel violated Bar Matter Nos. 287 and 1132.

 Through the equally assailed January 31, 2006

Resolution, the CA rejected Go’s motion for reconsideration.

 Hence, the instant petition for certiorari. 

The Issues 

I DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF ALLEGED WRONG MODE OF APPEAL THROUGH RULE 43 OF THE RULES OF COURT – 

– BY CLAIMING THAT WHEN RESPONDENT OP, WHOSE DECISION IN THE EXERCISE OF ITS QUASI-JUDICIAL POWERS IS APPEALABLE TO THE [CA] UNDER RULE 43, AFFIRMED THE DECISION OF THE DBM, IT WAS NOT IN THE EXERCISE OF ITS QUASI-JUDICIAL POWERS BUT IN THE EXERCISE OF ADMINISTRATIVE SUPERVISION AND CONTROL OVER THE DBM AND THEREFORE APPEAL UNDER RULE 43 CANNOT BE AVAILED OF, — FOR UNWARRANTEDLY READING WHAT IS NOT IN THE LAW AND NOT BORNE

OUT BY THE FACTS OF THE CASE?

 II

 DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF FAILURE TO IMPLEAD A PRIVATE RESPONDENT – 

– BY CLAIMING THAT “NO PRIVATE RESPONDENT IS IMPLEADED IN THE PETITION WHILE IMPLEADING THE [DBM] AND THE [OP], IN VIOLATION OF SECTION 6 (A) RULE 43 OF THE RULES OF COURT, — WHEN SAID PROVISION COULD NOT BE CONSTRUED AS TO HAVE REQUIRED IMPLEADING A PRIVATE RESPONDENT IN THE PETITION, IF THERE WAS NONE AT ALL?

 III

 DID THE [CA] COMMIT GRAVE ABUSE OF DISCRETION x x x WHEN IT DISMISSED OUTRIGHT THE PETITION ON THE GROUND OF FAILURE OF PETITIONER’S COUNSEL TO INDICATE CURRENT IBP AND PTR RECEIPT NOS. AND DATES OF ISSUE – 

– BY CLAIMING THAT “PETITIONER’S COUNSEL HAS NOT INDICATED HIS CURRENT IBP AND PTR RECEIPT NUMBERS AND DATES OF ISSUE” — EVEN AS IN THE MOTION FOR RECONSIDERATION, PETITIONER GO EXPLAINED THAT IT WAS AN HONEST INADVERTENCE AND HE EVEN ATTACHED THERETO COPIES OF COPIES THEMSELVES OF THE CURRENT IBP AND PTR RECEIPTS?

 IV

 DID RESPONDENT [CA] COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED OUTRIGHT THE PETITION ON TECHNICAL AND FLIMSY GROUNDS –

 – THUS SHIRKING FROM

ITS BOUNDEN TASK TO ADDRESS A VERY PRESSINIG

LEGAL ISSUE OF WHETHER EO 202 SEC. 6, A MERE EXECUTIVE ORDER, DIRECTING APPEAL TO THE DOTC SECRETARY SHOULD PREVAIL OVER A LAW, BP BLG. 129, SEC, 9 (C) AND RULE 43, SEC. 1 DIRECTING APPEAL TO THE COURT OF APPEALS?[16]

  

The Court’s Ruling There is merit in the petition. The core issues may be reduced into two, to

wit:  first, the propriety of the dismissal by the CA of Go’s Rule 43 petition for review on the stated procedural grounds; and second, the validity of the reallocation of rank resulting in the downgrading of position and diminution of salary. 

 Procedural Issue:  Proper Mode of Appeal

 As the CA held, Rule 43 is unavailing to Go,

the remedy therein being proper only to seek a review of decisions of quasi-judicial agencies in the exercise of their quasi-judicial powers. It added that the primarily assailed action is that of the DBM, which is not a quasi-judicial body.  In turn, thus, the affirmatory OP decision was made in the exercise of its administrative supervision and control over the DBM, not in the exercise of its quasi-judicial powers.

 The appellate court is correct in ruling that the

remedy availed of by Go is improper but not for the reason it proffered.  Both Go and the appellate court overlooked the fact that the instant case involves personnel action in the government, i.e., Go is questioning the reallocation and demotion directed by the DBM which resulted in the diminution of his benefits.  Thus, the proper remedy available to Go is to question the DBM denial of his protest before the Civil Service Commission (CSC) which has exclusive jurisdiction over cases involving personnel actions, and not before the OP.  This was our ruling involving personnel actions inMantala v. Salvador,[17] cited in Corsiga v. Defensor[18] and as reiterated in Olanda v. Bugayong.[19]  In turn, the resolution of the CSC may be elevated to the CA under Rule 43 and, finally, before this Court.  Consequently, Go availed himself of the wrong remedy when he went directly to the CA under Rule 43 without repairing first to the CSC.

 Ordinarily, a dismissal on the ground that the

action taken or petition filed is not the proper remedy under the circumstances dispenses with the need to address the other issues raised in the case.  But this is not a hard and fast rule, more so when the dismissal triggered by the pursuit of a wrong course of action does not go into the merits of the case.  Where such technical dismissal otherwise leads to inequitable results, the appropriate recourse is to resolve the issue concerned on the merits or resort to the principles of equity.  This is as it should be as rules of procedure ought not operate at

all times in a strict, technical sense, adopted as they were to help secure, not override substantial justice.[20]  In clearly meritorious cases, the higher demands of substantial justice must transcend rigid observance of procedural rules.

 Overlooking lapses on procedure on the part of

litigants in the interest of strict justice or equity and the full adjudication of the merits of his cause or appeal are, in our jurisdiction, matters of judicial policy.  And cases materially similar to the one at bench should invite the Court’s attention to the merits if only to obviate the resulting inequity arising from the outright denial of the recourse.  Here, the dismissal of the instant petition would be a virtual affirmance, on technicalities, of the DBM’s assailed action, however iniquitous it may be.

 Bearing these postulates in mind, the Court, in

the greater interest of justice, hereby disregards the procedural lapses obtaining in this case and shall proceed to resolve Go’s petition on its substantial merits without further delay.  The fact that Go’s protest was rejected more than a decade ago, and considering that only legal questions are presented in this petition, warrants the immediate exercise by the Court of its jurisdiction.

 Core Issue: Summary Reallocation Improper

 Contrary to the DBM’s posture, Go maintains

that the LTFRB decisions are appealable to the CA pursuant to Sec. 9 (3) of BP 129 and Rule 43 of the Rules of Court.  He argues that the grievance mechanism set forth in Sec. 6 of EO 202 cannot prevail over the appeal provisos of a statute and remedial law.  Go thus asserts that the summary reallocation of his position and the corresponding salary grade reassignment, i.e., from Attorney VI, SG-26 to Attorney V, SG-25, resulting in his demotion and the downgrading of the classification of his position, are without legal basis. 

  

EO 202 governs appeals from LTFRB Rulings

 We understand where Go was coming from

since the DBM letter to the DOTC Secretary implementing the summary reallocation of the classification of the position of LTFRB Chief of the Legal Division gave the following to justify the reclassification: the forum, i.e, the department secretary or the CA, where the appeal of a decision of division chief or head of the quasi-judicial agency may be taken.  The DBM, joined by the OP, held that LTFRB decisions are appealable to the DOTC Secretary pursuant to Sec. 6 of EO 202.  Therefrom, one may go to the OP before appealing to the CA.

 On this count, we agree with the DBM and the

OP.  Sec. 6 of EO 202 clearly provides: 

Sec. 6.  Decision of the Board [LTFRB]; Appeals therefrom and/or Review thereof.  The Board, in the

exercise of its powers and functions, shall sit and render its decisions en banc. x x x

 The decision, order or

resolution of the Board shall be appealable to the [DOTC] Secretary within thirty (30) days from receipt of the decision:  Provided, That the Secretary may motu proprio review any decision or action of the Board before the same becomes final.  (Emphasis supplied.)

  As may be deduced from the above provisos, the

DOTC, within the period fixed therein, may, on appeal or motu proprio,review the LTFRB’s rulings.  While not expressly stated in Sec. 6 of EO 202, the DOTC Secretary’s decision may, in turn, be further appealed to the OP.  The “plain meaning” or verba legis rule dictates that if the statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without interpretation.[21]  Thus, the LTFRB rulings are not directly appealable to the CA under Rule 43.

 Go further contends that EO 202, a mere

executive issuance, cannot be made to prevail over BP 129, Sec. 9 (3), which provides for the appeal of the decisions and rulings of quasi-judicial agencies to the CA.  Moreover, he points to the 1997 revision of the Rules of Civil Procedure which now provides under Rule 43 the appeals before the CA of decisions and rulings of quasi-judicial agencies. 

 Go is mistaken for the ensuing reasons:  First, EO

202 was issued on June 19, 1987 by then President Corazon C. Aquino pursuant to her legislative powers under the then revolutionary government.  The legislative power of President Aquino ended on July 27, 1987 when the first Congress under the 1987 Constitution convened.[22]  For all intents and purposes, therefore, EO 202 has the force and effect of any legislation passed by Congress. 

 Second, EO 202, creating the LTRFB, is a special

law, thus enjoying primacy over a conflicting general, anterior law, such as BP 129.  In Vinzons-Chato v. Fortune Tobacco Corporation,[23] the Court elucidated on this issue in this wise:

 A general law and a special law

on the same subject are statutes in pari materia and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both.  The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken

as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.  (Emphasis supplied.)  Given the foregoing premises, BP 129 must, on

matters of appeals from LTFRB rulings, yield to the provision of EO 202, the subsequent special law being regarded as an exception to, or a qualification of, the prior general act.[24]

 DBM has authority to allocate classifications of different positions in the Government service

  There is no dispute that the DBM is vested the

authority to enforce and implement PD 985, as amended, which mandates the establishment of a unified compensation and position classification system for the government.  Sec. 17 (a) of PD 985, as amended by Sec. 14 (a) of RA 6758, and the original Sec. 17 (b) of PD 985 pertinently provide, thus:

 Section 17.  Powers and

Functions. – The Budget Commission (now DBM), principally through the OCPC (now CPCB, Compensation and Position Classification Board) shall, in addition to those provided under other Sections of this Decree, have the following powers and functions:

 a. Administer the compensation

and position classification system established herein and revise it as necessary;

 b. Define each grade in the

salary or wage schedule which shall be used as a guide in placing positions to their appropriate classes and grades;  Moreover, Secs. 2, 7 and 9 of RA 6758

respectively provide: 

Sec. 2.  Statement of Policy. — It is hereby declared the policy of the State to provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions. x x x For this purpose, the x x x (DBM) is hereby directed to establish and administer a unified Compensation and Position Classification System, hereinafter

referred to as the System, as provided for in [PD] No. 985, as amended, that shall be applied for all government entities, as mandated by the Constitution. 

 x x x x Sec. 7.  Salary Schedule. — The

[DBM] is hereby directed to implement the Salary Schedule prescribed below:

 x x x x The [DBM] is hereby

authorized to determine the officials who are of equivalent rank to the foregoing Officials, where applicable, and may be assigned the same Salary Grades based on the following guidelines:

 x x x x Sec. 9.  Salary Grade

Assignments for Other Positions. — For positions below the Officials mentioned under Section 8 hereof and their equivalent, whether in the National Government, local government units, government-owned or controlled corporations or financial institutions, the [DBM] is hereby directed to prepare the Index of Occupational Services to be guided by the Benchmark Position Schedule prescribedhereunder and the following factors: (1) the education and experience required x x x; (2) the nature and complexity of the work to be performed; (3) the kind of supervision received; (4) mental and/or physical strain required x x x; (5) nature and extent of internal and external relationships; (6) kind of supervision exercised; (7) decision-making responsibility x x x.  (Emphasis supplied.)  And while the Office of Compensation and

Position Classification, now Compensation and Position Classification Board (CPCB), is vested, under Sec. 8[25] of PD 985, the sole authority to allocate the classification of positions, its determinations relative to the allocations require the approval of the DBM Secretary to be binding.

 This brings us to the validity of the

reallocation.    

 

Summary reallocation illegal

 Go argues that the summary reallocation of the

classification of his position as Chief, LTFRB Legal Division to a lower grade substantially   reduced his salary and other benefits, veritably depriving him of property, hence, illegal.

 We agree with Go on this count.  The summary

reallocation of his position to a lower degree resulting in the corresponding downgrading of his salary infringed the policy of non-diminution of pay which the Court recognized and applied in Philippine Ports Authority v. Commission on Audit,[26] as well as in the subsequent sister cases[27] involving benefits of government employees. Running through the gamut of these cases is the holding that the affected government employees shall continue to receive benefits they were enjoying as incumbents upon the effectivity of RA 6758.

 Relevant to the critical issue at hand is Sec. 15

(b) of PD 985 which, as amended by Sec. 13 (a) of RA 6758, pertinently reads:

 SEC. 13. Pay Adjustments.- x x x (b)  Pay Reduction — If

an employee is moved from a higher to a lower class, he shall not suffer a reduction in salary: Provided, That such movement is not the result of a disciplinary action or voluntary demotion.  (Emphasis supplied.) 

Prior to its amendment, Sec. 15 (b) of PD 985 reads:

(b)  Pay Reduction — If an employee is moved from a higher to a lower class, he shall not suffer a reduction in salary except where his current salary is higher than the maximum step of the new class in which case he shall be paid the maximum: Provided, That such movement is not the result of a disciplinary action.  (Emphasis supplied.)  As may be noted, the legislature dropped from

the original proviso on pay reduction the clause:  “except where his current salary is higher than the maximum step of the new class in which case he shall be paid the maximum.”  The deletion doubtless indicates the legislative intent of maintaining, in line with the non-diminution principle, the level or grade of salary enjoyed by an incumbent before the reallocation to a lower grade or classification is effected.  It must be made absolutely clear at this juncture that Go received his position classification of Attorney VI and assigned SG-26 upon his promotional appointment as Chief, LTFRB Legal Division on February 1, 1990, or after the effectivity of RA 6758.  Following the

clear mandate of the aforequoted Sec. 15(b) of PD 985, as amended, Go must not suffer a reduction in his salary even if there was a reallocation of his position to a lower grade.

 Lest it be overlooked, the transition provisos of

RA 6758 provide additional justification for Go’s entitlement to continue receiving the compensation and emoluments previously granted him upon his promotion as Chief, LTFRB Legal Division.  Go, as an incumbent of said position before the assailed reallocation was effected ostensibly through the implementation of RA 6758, the statute’s transition provisions should apply mutatis mutandis to him.  The pertinent provisions are Secs. 12 and 17 of RA 6758, to wit:

 Section 12. Consolidation of

Allowances and Compensation.—All allowances, except for representation and transportation allowances, clothing and laundry allowances; x x x and such other additional compensation not otherwise specified herein as may determined by the [DBM], shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized.

 x x x x Section 17.  Salaries of

Incumbents.—Incumbents of positions presently receiving salaries and additional compensation/fringe benefits including those absorbed from local government units and other emoluments, the aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such excess compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the amount of salary adjustment that the incumbent shall receive in the future. 

Pursuant to the principle of non-diminution and consistent with the rule on the prospective application of laws in the spirit of justice and fair play,[28] the above provisions are, indeed, meant to protect incumbents who are receiving salaries and allowances beyond what may be allowable under RA 6758.  It may be that Go was not the occupant of his present position as of July 1, 1989. Still the positions in the plantilla of the LTFRB were properly subjected to the standardization under RA 6758.  In fact, the matter of excess of salary and benefits in the application of RA 6758 and PD 985 is a non-issue.  What is at issue is the reallocation of the position from Attorney VI, SG-26 to Attorney V, SG-25.  Obviously, the question of who was sitting as Chief of the Legal

Division as of July 1, 1989 is of no moment.  Of particular significance is the issue of whether the reallocation to a lower degree is proper given that Go was already enjoying the salary and emoluments as Attorney VI, SG-26 upon his appointment on February 1, 1990 as Chief, LTFRB Legal Division.

 While the DBM is statutorily vested with the

authority to reclassify or allocate positions to their appropriate classes, with the concomitant authority to formulate allocating policies and criteria for bureau-level agencies, like the LTFRB, the investiture could not have plausibly included unchecked discretion to implement a reallocation system offensive to the due process guarantee. 

 It is recognized that one’s employment is a

property right within the purview of the due process clause.  So it was that inCrespo v. Provincial Board of Nueva Ecija[29] the Court categorically held that “one’s employment, profession, trade or calling is a ‘property right,’ and the wrongful interference therewith is an actionable wrong.  The right is considered to be property within the protection of a constitutional guaranty of due process of law.”[30]

 Per our count, from his promotional

appointment as Chief, LTFRB Legal Division to the time (April 8, 1991) the summary reallocation was implemented, Go had occupied the position and enjoyed the corresponding salary and emoluments therefor for one year, two months and eight days.  In this length of time, Go’s entitlement to the benefits appurtenant to the position has well nigh ripened into a vested right.  

 As the records show, Go, as Attorney VI, SG-26,

was receiving an annual salary of PhP 151,800.  Consequent to the enforcement of the summary reallocation of his position to Attorney V, SG-25, this was effectively reduced, reckoned from April 8, 1991, to PhP 136,620,[31] or a salary reduction of PhP 15,180 a year.  These figures of course have yet to factor in supervening pay adjustments occurring through the years.

 A vested right is one whose existence, effectivity

and extent do not depend upon events foreign to the will of the holder, or to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency.[32] The term “vested right” expresses the concept of present fixed interest which, in right reason and natural justice, should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny.[33]

 To be vested, a right must have become a title—

legal or equitable—to the present or future enjoyment of property.[34]

 To us, Go has established a clear, equitable

vested right to the emoluments of his position as Attorney VI, SG-26.  He continues to occupy—at least up to April 11, 2006 when he filed this petition—the

position of Chief, LTFRB Legal Division.  His title to Attorney VI, SG-26 is without question, having been legally appointed to the position on February 1, 1990.  And being an incumbent to that position, he has, at the very least, an equitable right to receive the corresponding salary and emoluments attached thereto.  The summary demotion to a lower salary grade, with the corresponding decrease in salary and emoluments after he has occupied his current rank and position, goes against his right to continue enjoying the benefits accorded the position and which his predecessors must have been receiving.  His right thereto has ripened into a vested right, of which he could be deprived only by due process of law, but which we believe he was denied through the summary reallocation.  With the view we take of this case, Go was neither apprised nor given the opportunity to contest the reallocation before its summary implementation.

 Lest this Decision is taken out of context, the

Court wishes to emphasize that it is not its intention to disturb the reallocation of the position Chief, LTFRB Legal Division to Attorney V, SG-25.  Accordingly, it behooves the DBM and the LTFRB to enforce the classification of position of Attorney V, SG-25 to those who will succeed Go in the said position.

 It bears to stress nonetheless that this pro hac

vice case disposition is predicated on the following key considerations:  (1) Go was duly appointed to an office previously classified as a division chief position with an Attorney VI, SG 26 assignment; (2) under DBM circulars then obtaining, it would appear that division chief positions carried a SG-26 classification without the qualification set forth in the DBM’s letter of March 31, 1991.  In a real sense, therefore, the present controversy is attributable to the DBM’s failure to incorporate, at the outset, the necessary clarificatory qualifications/ distinctions in its position and salary allocation rules/circulars; (3) Go’s receipt for some time of the salary and other emoluments attached to the position was cut short by the reallocation of the position, resulting in his demotion and downgrading of salary; and (4) the reallocation was effected by the DBM in a summary manner.

 WHEREFORE, the instant petition

is GRANTED.  The Resolutions dated August 17, 2005 and January 31, 2006 of the Court of Appeals in CA-G.R. SP No. 90665 are hereby REVERSED and SET ASIDE.  The January 7, 2005 Decision and June 28, 2005 Order of the Office of the President in OP Case No. 99-8880 are likewise REVERSED and SET ASIDE.  Accordingly, the summary reallocation enforced and implemented on April 8, 1991 is declared NULL and VOID.  The Department of Transportation and Communications is hereby ORDERED to reinstate Gonzalo S. Go, Jr. to the position of Attorney VI, SG-26 as the Chief of the Legal Division of the Land Transportation Franchising and Regulatory Board, with the corresponding release to him of the differential of all emoluments reckoned from April 8, 1991.

 No pronouncement as to costs. SO ORDERED.

[G.R. No. 139794.  February 27, 2002]

MARTIN S. EMIN, petitioner, vs. CHAIRMAN CORAZON ALMA G. DE LEON, COMMISSIONERS THELMA P. GAMINDE and RAMON P. ERENETA, JR., of the CIVIL SERVICE COMMISSION, respondents.

D E C I S I O N

QUISUMBING, J.:

This is a petition to review the decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549, affirming Civil Service Commission Resolution Nos. 96-3342 and 97-4049 finding petitioner Martin Emin, guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service, and dismissing him from the service as Non-Formal Education (NFE) Supervisor of the Department of Education, Culture and Sports (DECS), Kidapawan, Cotabato.

The facts are as follows:

Sometime in the year 1991, appointment papers for a change of status from provisional to permanent under Republic Act No. 6850 of teachers were submitted to the Civil Service Field Office-Cotabato at Amas, Kidapawan, Cotabato.  Attached to these appointment papers were photocopies of certificates of eligibility of the teachers.

Director Gantungan U. Kamed noticed that the certificates of eligibility were of doubtful authenticity.  He called the Head Civil Service Field Officer.  While the certificates seemed to be authentic, the signature of Civil Service Commission Director Elmer R. Bartolata and the initials of the processors of said certificates were clearly forgeries.  Director Kamed initially forwarded five (5) appointments to Civil Service Regional Office No. XII for verification of their R.A. 6850 eligibilities and for appropriate action through an indorsement letter dated September 26, 1991. The appointment papers of the same nature subsequently submitted to the Field Office were likewise forwarded to the CSRO No. XII.

Upon verification of the records of CSRO No. XII, it was found that said applications for civil service eligibility under R.A. 6850 were disapproved.  However, the certificates of eligibility they submitted were genuine as their control number belonged to the batch issued to CSRO No. XII by the CSC Central Office.  But the records showed that these certificates were never issued to any one.

Two separate investigations[1] were conducted by Director Cesar P. Buenaflor of Regional Office No. 12 of the Civil Service Commission inCotabato City: (1) on how the R.A. 6850 certificates were issued/released from the Office, and (2) on how the teachers got said certificates.  The teachers concerned were asked to

report to the Office and bring the original copies of their certificates of eligibility.  On several dates, the teachers appeared and gave their sworn statements pointing to petitioner as the person who gave them the R.A. 6850 certificates of eligibility they had attached to their appointments for a fee.  Upon finding a prima facie case, petitioner was formally charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service.[2]

In his sworn letter dated April 8, 1992 to the CSC Regional Director, petitioner denied the accusation.[3] He filed a motion to dismiss, datedJune 5, 1992,[4] but the motion was denied on July 8, 1992.

During the hearing, the six teachers cited in the charge sheet, namely: Eufrocina Sicam, Ma. Elisa Sarce, Lilia Millondaga, Merla Entiero, Lourdes Limbaga and Florida P. Alforjas were presented as witnesses for the prosecution. Felixberta Ocho and Araceli G. Delgado who were also holders of fake certificates of eligibility were likewise presented as witnesses.

Alforjas and Delgado identified petitioner and a certain Teddy Cruz as the persons who facilitated their applications for R.A. 6850 eligibility. The other witnesses corroborated Alforjas’ and Delgado’s testimonies.  They all identified petitioner as the person who helped them obtain the fake certificates of eligibility.

On June 29, 1994, Director Buenaflor submitted a report[5] to the Chairman of the Civil Service Commission.  The CSC found that there was sufficient evidence to warrant the conviction of petitioner.  On May 14, 1996, the Civil Service Commission in its resolution decreed:

WHEREFORE, Martin S. Emin is hereby found guilty of Grave Misconduct. Accordingly, the penalty of dismissal from the service including all its accessory penalties is imposed upon him.[6]

Not satisfied with the abovecited resolution, the petitioner filed a motion for reconsideration,[7] but it was denied.

On January 16, 1998, petitioner elevated the case to the Court of Appeals, but it was dismissed for failure to comply with Section 5, Rule 43 of the 1997 Rules of Civil Procedure.[8]

However, the CA granted petitioner’s motion for reconsideration[9] and time to amend his petition.[10] In his amended petition, he raised before the CA the twin issues of  (1) whether the CSC had original jurisdiction over the administrative cases against the public school teachers; and (2) whether petitioner was accorded due process.[11]

Finding the petition unmeritorious, the appellate court ruled on the appeal, thus:

WHEREFORE, premises considered, the petition (appeal) is DISMISSED, hereby affirming public respondents’

assailed appealed resolutions (Resolution No. 963342, dated May 14,1996; and Resolution No. 974049, dated October 14, 1997).

SO ORDERED.[12]

Petitioner is now before us raising the following issues:

I.   WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION HAS ORIGINAL JURISDICTION OVER ADMINISTRATIVE CASES AGAINST PUBLIC SCHOOL TEACHERS.

II.  WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PETITIONER WAS NOT ACCORDED HIS RIGHT TO DUE PROCESS.

III.  WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THERE WAS SUFFICIENT GROUND TO DISMISS THE PETITIONER FROM SERVICE.

IV. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT ADMITTING THE NEWLY DISCOVERED EVIDENCE.[13]

Notwithstanding petitioner’s formulation, we find that the issues to be resolved are: (1) whether or not the CSC has original jurisdiction over the present case; and (2) whether or not petitioner was accorded due process.

Petitioner avers that as a teacher, original jurisdiction over the administrative case against him is lodged with a committee and not with the CSC, as provided for by Republic Act 4670 otherwise known as the “Magna Carta for Public School Teacher,” specifically, Section 9 thereof, which provides:

Sec. 9. Administrative Charges.- Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local, or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

For public respondent CSC, the Office of the Solicitor General maintains that original jurisdiction over the present case is with the CSC pursuant to the Constitution and P.D. 807 (Civil Service Law) which provide that the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including government-owned or controlled corporations whether performing governmental or proprietary function.

We find merit in petitioner’s contention that R.A. 4670 is good law and is applicable to this case.  R.A. 4670 has not been expressly repealed by the general law P.D. 807, nor has R.A. 4670 been shown to be inconsistent with the presidential decree.[14] Section 2 thereof specified those who are covered by the term  “teacher” as follows:

SEC. 2. Title – Definition. - This Act shall be known as the “Magna Carta for Public School Teachers” and shall apply to all public school teachers except those in the professorial staff of state colleges and universities.

As used in this Act, the term “teacher” shall mean all persons engaged in classroom teaching, in any level of instruction, on full-time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees.

Petitioner is the Non-Formal Education Supervisor of the DECS, in Kidapawan, Cotabato, in-charge of the out-of-school programs.[15] The 1993 Bureau of Non-formal Education Manual[16] outlines the functions of a NFE Division Supervisor which include, “…(5) implementation of externally assisted NFE programs and projects; (6) monitoring and evaluation of NFE programs and projects… (8) supervision of the implementation of NFE programs/projects at the grassroots level.”[17] Clearly, petitioner falls under the category of “all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the government or its political subdivisions.”

Under Section 2 of R.A. 4670, the exclusions in the coverage of the term “teachers” are limited to: (1) public school teachers in the professorial staff of state colleges and universities; and (2) school nurses, school physicians, school dentists, and other school employees under the category of “medical and dental personnel”.  Under the principle of ejusdem generis, general words following an enumeration of persons or things, by words of a particular and specific meaning, are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned.[18] Too, the enumeration of persons excluded from the coverage of the term “teachers” is restricted, limited and exclusive to the two groups as abovementioned.  Where the terms are expressly limited to certain matters, it may not by interpretation or construction be extended to other matters.[19] Exclusio unios est inclusio alterius.  Had Congress intended to exclude an NFE Division Supervisor from the coverage of R.A. 4670, it could have easily done so by clear and concise language.

As petitioner is covered by R.A. 4670, it is the Investigating Committee that should have investigated his case conformably with Section 9 of R.A. 4670, now being implemented by Section 2, Chapter VII of DECS

Order No. 33, S. 1999, otherwise known as the DECS Rules of Procedure.[20]

However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSC’s jurisdiction over his case.

But we must stress that nothing herein should be deemed as overriding the provision in the Magna Carta for Teachers on the jurisdiction of the Committee to investigate public school teachers as such, and the observance of due process in administrative proceedings involving them, nor modifying prior decided cases of teachers on the observance of the said Magna Carta such as Fabella vs. Court of Appeals.[21]

Here what is crucial, in our view, is that the Civil Service Commission had afforded petitioner sufficient opportunity to be heard and defend himself against charges of participation in faking civil service eligibilities of certain teachers for a fee.  Not only did he answer the charges before the CSC Regional Office but he participated in the hearings of the charges against him to the extent that we are left with no doubt that his participation in its proceedings was willful and voluntary.

As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them.[22] In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review[23] before the CA. He did not raise this matter in his Motion to Dismiss[24] filed before the CSC Regional Office.  Notably, in his Counter-Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was “open to further investigation by the CSC to bring light to the matter”[25] and by further praying for “any remedy or judgment which under the premises are just and equitable.”[26] It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction, when adverse.[27]

Equally unmeritorious is petitioner’s contention that he was denied due process.  He avers that he was not allowed cross-examination.  It is well to remember that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense.[28]

Nothing on record shows he asked for cross-examination as most of the submissions were written.  In our view, petitioner cannot argue that he has been deprived of due process merely because no cross-examination took place.  The rule is well established that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or given opportunity to move for a reconsideration of the action or ruling complained of.[29] In the present case, the record clearly shows that petitioner not only filed his Counter-Affidavit[30] during

the preliminary investigation, and later his Motion to Dismiss.[31] He also filed a Motion for Reconsideration[32] of the October 19, 1993 Order of the Commission.  The essence of due process in administrative proceedings is an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.[33]

Neither is there merit in petitioner’s assertion that he was denied the right to due process when the CSC Regional Office, according to him, acted as investigator, prosecutor, judge and executioner.  He laments that Director Buenaflor who formally filed the charge nominally was also the hearing officer, and that prosecutor Atty. Anabelle Rosell was also the one who submitted the recommendation to the CSC for the dismissal of petitioner.  Recall, however, that it was ultimately the Civil Service Chairman who promulgated the decision.  The report submitted by Atty. Rosell based on the hearing where Director Buenaflor sat as hearing officer, was merely recommendatory in character to the Civil Service Commission itself.  Such procedure is not unusual in an administrative proceeding.

Petitioner claims that there was no valid case to dismiss him as Director Elmer Bartolata was not presented to ascertain the alleged forged signature contained in the questioned certificates of eligibility.  The Court of Appeals and the Civil Service Commission made a finding on this fact of forgery.  It is not this Court’s function now to evaluate factual questions all over again.  This is particularly true in this case, where the Commission and the appellate court agree on the facts.[34]

Lastly, petitioner contends that the affidavit of Teodorico Cruz[35] should have been admitted as newly discovered evidence.  Petitioner raised this issue for the first time on appeal, when he filed his Motion for New Trial and to Admit Newly Discovered Evidence before the CA.  For a particular piece of evidence to be regarded as “newly discovered” for purposes of a new trial, it is essential that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during trial but had nonetheless failed to secure it.  The OSG[36]observed that despite the knowledge of the importance of Mr. Cruz’s testimony on the matter, petitioner did not ask for a subpoena duces tecumto obtain said “newly discovered evidence.”  Neither did petitioner, on his own, secure said affidavit or testimony during the proceedings to support his cause.  We note too, that the said affidavit attempts to exonerate the petitioner and Cruz and points to someone else (“Jing”) as the culprit, leaving the impression that the idea of the affidavit was a mere afterthought, a last ditch effort to clear petitioner’s name.  Thus, we are not persuaded by petitioner’s claim of newly discovered evidence, for it appears to us as a dilatory contrivance for petitioner’s benefit.

WHEREFORE, there being no reversible error committed by the Court of Appeals and the respondent officials of the CSC, the instant petition is hereby DENIED.  The Decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549 is AFFIRMED.  Costs against petitioner.

SO ORDERED.

G.R. No. 167916             August 26, 2008

SARAH P. AMPONG, petitioner, vs.CIVIL SERVICE COMMISSION, CSC-Regional Office No. 11, respondents.

D E C I S I O N

REYES R.T., J.:

CAN the Civil Service Commission (CSC) properly assume jurisdiction over administrative proceedings against a judicial employee involving acts of dishonesty as a teacher, committed prior to her appointment to the judiciary?

Before Us is a petition for review on certiorari assailing the Decision1 of the Court of Appeals (CA) affirming the CSC’s exercise of administrative jurisdiction over petitioner.

The Facts

The following facts are uncontroverted:

On November 10, 1991, a Professional Board Examination for Teachers (PBET)2 was held in Davao City. A certain Evelyn Junio-Decir3 applied for and took the examination at Room 16, Kapitan Tomas Monteverde Elementary School. She passed with a rating of 74.27%.4

At the time of the PBET examinations, petitioner Sarah P. Ampong (nee Navarra) and Decir were public school teachers under the supervision of the Department of Education, Culture and Sports (DECS).5Later, on August 3, 1993, Ampong transferred to the Regional Trial Court (RTC) in Alabel, Sarangani Province, where she was appointed as Court Interpreter III.

On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office (CSRO) No. XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. During the course of the transaction, the CSRO personnel noticed that the woman did not resemble the picture of the examinee in the Picture Seat Plan (PSP). Upon further probing, it was confirmed that the person claiming the eligibility was different from the one who took the examinations. It was petitioner Ampong who took and passed the examinations under the name Evelyn Decir.

The CSRO conducted a preliminary investigation and determined the existence of a prima facie case against Decir and Ampong for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. On August 23, 1994, they were formally charged and required to file answers under oath. The formal charge reads:

That sometime before the conduct of the November 10, 1991 Professional Board

Examination for Teachers (PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16 Kapitan Tomas Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That on July 5, 1994 she appeared before the CSC Region XI Office to get her Guro Certificate; That upon verification, it was found out that the picture attached in the Picture Seat Plan, marked as Annex "A" and "A-1," respectively, were not the same compared to the picture attached in the CSC Form 212 of Evelyn Junio-Decir marked herein as annex "B," "B-1," respectively. There was also a marked difference in the signatures affixed in the said annexes; That further investigations revealed that it was the pictures of Ms. Sarah Navarra, wife of her husband’s first cousin, who took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional teacher; That the said act of Mesdames Decir and Navarra are acts of dishonesty and conduct prejudicial to the best interest of the service; that in (sic) taking the CS examination for and in behalf of another undermines the sanctity of the CS examinations; All these contrary to existing civil service laws and regulations. (Emphasis supplied)

In her sworn statement dated November 3, 1994, Decir denied the charges against her. She reasoned out that it must have been the examination proctor who pasted the wrong picture on the PSP and that her signatures were different because she was still signing her maiden name at the time of the examination. In her Answer, Decir contended that:

2. The same accusation is denied, the truth being:

a. When I took the Professional Board Examination for Teachers (PBET) in the year 1991, I handed my 1x1 I.D. picture to the proctor assigned in the examination room who might have inadvertently pasted in the Seat Plan [the] wrong picture instead [of] my own picture;

b. With respect to the marked difference in my signature both appearing in the aforesaid Seat Plan and also with the Form 212, the disparity lies in that in the year 1991, when I took the afroresaid examination, I was still sporting my maiden name Evelyn B. Junio in order to coincide with all my pertinent supporting papers, like the special order (s.o.), appointment and among others, purposely to take said communications. However, immediately after taking the PBET Examination in 1991, I started using the full name of Evelyn Junio-Decir.6

Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995 and admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel, petitioner voluntarily waived said right.

On March 13, 1995, petitioner gave another admission in the following tenor:

Q:     Now, what is then your intention in coming to this Region inasmuch as you are still intending to file an answer to the formal charge?

A:     I came here because I want to admit personally. So that I will not be coming here anymore. I will submit my case for Resolution.

Q:     So, you intend to waive your right for the formal hearing and you also admit orally on the guilt of the charge on the Formal Charge dated August 24, 1994?

A:     Yes, Ma’am.

Q:     What else do you want to tell the Commission?

A:     x x x Inasmuch as I am already remorseful, I am repenting of the wrong that I have done. I am hoping that the Commission can help x x x so that I will be given or granted another chance to serve the government.

x x x x

Q:     Now inasmuch as you have declared that you have admitted the guilt that you took the examination for and in behalf of Evelyn Junio Decir, are you telling this to the Commission without the assistance of the counsel or waiver of your right to be assisted by counsel.

A:     Yes, Ma’am. I am waiving my right.7 (Emphasis supplied)

Petitioner reiterated her admission in her sworn Answer dated March 16, 1995:

3. That, during the commission of the act, I was still under the Department of Education, Culture and Sports, as Teacher in-charge of San Miguel Primary School, Malungon North District, way back in 1991, when the husband of Evelyn Junio-Decir, my husband’s cousin came to me and persuaded me to take the examination in behalf of his wife to which I disagreed but he earnestly begged so that I was convinced to agree because I pity his wife considering that she is an immediate relative, and there was no monetary consideration involved in this neither a compensatory reward for me, as I was overcome by their persuasion;

4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a ground for disciplinary action and punishable by dismissal;

5. That I should not have conformed to this anomalous transaction considering that I was born in a Christian family, and was brought up in the fear of Lord, and had been a consistent officer of the Church Board, had been a religious leader for so many years, and had been the organizer of the Music Festival of the Association of Evangelical Churches of Malungon, Sarangani Province, thus I was devoted to church work and was known to be of good conduct; and that my friends and acquaintances can vouch to that, but I was just forced by circumstances to agree to the spouses Godfre and Evelyn Decir.8 (Emphasis added)

CSC Finding and Penalty

On March 21, 1996, the CSC found petitioner Ampong and Decir guilty of dishonesty, dismissing them from the service. The dispositive part of the CSC resolution states:

WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of Dishonesty. Accordingly, they are meted the penalty of dismissal with all its accessory penalties. The PBET rating of Decir is revoked.9

Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction.10 She argued that the exclusive authority to discipline employees of the judiciary lies with the Supreme Court; that the CSC acted with abuse of discretion when it continued to exercise jurisdiction despite her assumption of duty as a judicial employee. She contended that at the time the case was instituted on August 23, 1994, the CSC already lost jurisdiction over her. She was appointed as Interpreter III of the RTC, Branch 38, Alabel, Sarangani Province on August 3, 1993.

The CSC denied the motion for reconsideration.11 According to the Commission, to allow petitioner to evade administrative liability would be a mockery of the country’s administrative disciplinary system. It will open the floodgates for others to escape prosecution by the mere expedient of joining another branch of government. In upholding its jurisdiction over petitioner, the CSC differentiated between administrative supervision exercised by the Supreme Court and administrative jurisdiction granted to the Commission over all civil service employees:

Moreover, it must be pointed out that administrative supervision is distinct from administrative jurisdiction. While it is true that this Commission does not have administrative supervision over employees in the judiciary, it definitely has concurrent jurisdiction over them. Such jurisdiction was conferred upon the Civil Service Commission pursuant to existing law

specifically Section 12(11), Chapter 3, Book V of the Administrative Code of 1987 (Executive Order No. 292) which provides as follows:

"(11) Hear and decide administrative cases instituted by or through it directly or on appeal, including contested appointment, and review decisions and actions of its offices and of the agencies attached to it x x x."

The fact that court personnel are under the administrative supervision of the Supreme Court does not totally isolate them from the operations of the Civil Service Law. Appointments of all officials and employees in the judiciary is governed by the Civil Service Law (Section 5(6), Article VIII, 1987 Constitution). (Emphasis supplied)

CA Disposition

Via petition for review under Rule 43, petitioner elevated the matter to the CA.12 She insisted that as a judicial employee, it is the Supreme Court and not the CSC that has disciplinary jurisdiction over her.

In a Decision dated November 30, 2004,13 the CA denied the petition for lack of merit.

The CA noted that petitioner never raised the issue of jurisdiction until after the CSC ruled against her. Rather, she willingly appeared before the commission, freely admitted her wrongdoing, and even requested for clemency. Thus, she was estopped from questioning the Commission’s jurisdiction. The appellate court opined that while lack of jurisdiction may be assailed at any stage, a party’s active participation in the proceedings before a court, tribunal or body will estop such party from assailing its jurisdiction.

The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies. As a public school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules and regulations. When she committed acts in violation of the Civil Service Law, the CSC was clothed with administrative jurisdiction over her.

Issue

Petitioner, through this petition, assigns the lone error that:

The Honorable Court of Appeals-First Division decided a question of substance in a way not in accord with law and jurisprudence, gravely erred in facts and in law, and has sanctioned such departure and grave error because it ignored or was not aware of Garcia v. De la Peña, 229 SCRA 766 (1994) and Adm. Matter No. OCA I.P.I. 97-329-P (CSC v. Ampong) dated January 31, 2001, which reiterate the rule that

exclusive authority to discipline employees of the judiciary lies with the Supreme Court, in issuing the questioned decision and resolution; which grave error warrant reversal of the questioned decision and resolution.14

Put simply, the issue boils down to whether the CSC has administrative jurisdiction over an employee of the Judiciary for acts committed while said employee was still with the Executive or Education Department.

Our Ruling

The answer to the question at the outset is in the negative but We rule against the petition on the ground of estoppel.

It is true that the CSC has administrative jurisdiction over the civil service. As defined under the Constitution and the Administrative Code, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, and government-owned or controlled corporations.15 Pursuant to its administrative authority, the CSC is granted the power to "control, supervise, and coordinate the Civil Service examinations."16 This authority grants to the CSC the right to take cognizance of any irregularity or anomaly connected with the examinations.17

However, the Constitution provides that the Supreme Court is given exclusive administrative supervision over all courts and judicial personnel.18 By virtue of this power, it is only the Supreme Court that can oversee the judges’ and court personnel’s compliance with all laws, rules and regulations. It may take the proper administrative action against them if they commit any violation. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.19Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on the powers granted to it by the Constitution. It violates the specific mandate of the Constitution granting to the Supreme Court supervisory powers over all courts and their personnel; it undermines the independence of the judiciary.20

In Civil Service Commission v. Sta. Ana,21 this Court held that impersonating an examinee of a civil service examination is an act of dishonesty. But because the offender involved a judicial employee under the administrative supervision of the Supreme Court, the CSC filed the necessary charges before the Office of the Court Administrator (OCA), a procedure which this Court validated.

A similar fate befell judicial personnel in Bartolata v. Julaton,22 involving judicial employees who also impersonated civil service examinees. As in Sta. Ana, the CSC likewise filed the necessary charges before the OCA because respondents were judicial employees. Finding respondents guilty of dishonesty and meting the penalty of dismissal, this Court held that "respondents’ machinations reflect their dishonesty and lack of

integrity, rendering them unfit to maintain their positions as public servants and employees of the judiciary."23

Compared to Sta. Ana and Bartolata, the present case involves a similar violation of the Civil Service Law by a judicial employee. But this case is slightly different in that petitioner committed the offensebefore her appointment to the judicial branch. At the time of commission, petitioner was a public school teacher under the administrative supervision of the DECS and, in taking the civil service examinations, under the CSC. Petitioner surreptitiously took the CSC-supervised PBET exam in place of another person. When she did that, she became a party to cheating or dishonesty in a civil service-supervised examination.

That she committed the dishonest act before she joined the RTC does not take her case out of the administrative reach of the Supreme Court.

The bottom line is administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of whether the offense was committed before or after employment in the judiciary.

Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before the OCA. Records show that the CSC did not adhere to this procedure in the present case.

However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The previous actions of petitioner have estopped her from attacking the jurisdiction of the CSC. A party who has affirmed and invoked the jurisdiction of a court or tribunal exercising quasi-judicial functions to secure an affirmative relief may not afterwards deny that same jurisdiction to escape a penalty.24 As this Court declared in Aquino v. Court of Appeals:25

In the interest of sound administration of justice, such practice cannot be tolerated. If we are to sanction this argument, then all the proceedings had before the lower court and the Court of Appeals while valid in all other respects would simply become useless.26

Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to impugn the court’s jurisdiction.27 In Emin v. De Leon,28 this Court sustained the exercise of jurisdiction by the CSC, while recognizing at the same time that original disciplinary jurisdiction over public school teachers belongs to the appropriate committee created for the purpose as provided for under the Magna Carta for Public School Teachers.29 It was there held that a party who fully participated in the proceedings before the CSC and was accorded due process is estopped from subsequently attacking its jurisdiction.

Petitioner was given ample opportunity to present her side and adduce evidence in her defense before the CSC. She filed with it her answer to the charges leveled

against her. When the CSC found her guilty, she moved for a reconsideration of the ruling. These circumstances all too clearly show that due process was accorded to petitioner.

Petitioner’s admission of guilt stands. Apart from her full participation in the proceedings before the CSC, petitioner admitted to the offense charged – that she impersonated Decir and took the PBET exam in the latter’s place. We note that even before petitioner filed a written answer, she voluntarily went to the CSC Regional Office and admitted to the charges against her. In the same breath, she waived her right to the assistance of counsel. Her admission, among others, led the CSC to find her guilty of dishonesty, meting out to her the penalty of dismissal.

Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial investigations, the assistance of counsel is necessary in order for an extra-judicial confession to be made admissible in evidence against the accused in a criminal complaint. If assistance was waived, the waiver should have been made with the assistance of counsel.30

But while a party’s right to the assistance of counsel is sacred in proceedings criminal in nature, there is no such requirement in administrative proceedings. In Lumiqued v. Exevea,31 this Court ruled that a party in an administrative inquiry may or may not be assisted by counsel. Moreover, the administrative body is under no duty to provide the person with counsel because assistance of counsel is not an absolute requirement.32

Petitioner’s admission was given freely. There was no compulsion, threat or intimidation. As found by the CSC, petitioner’s admission was substantial enough to support a finding of guilt.

The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts to any violation of the Civil Service examination."33 Petitioner impersonated Decir in the PBET exam, to ensure that the latter would obtain a passing mark. By intentionally practicing a deception to secure a passing mark, their acts undeniably involve dishonesty.34

This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray."35 Petitioner’s dishonest act as a civil servant renders her unfit to be a judicial employee. Indeed, We take note that petitioner should not have been appointed as a judicial employee had this Court been made aware of the cheating that she committed in the civil service examinations. Be that as it may, petitioner’s present status as a judicial employee is not a hindrance to her getting the penalty she deserves.

The conduct and behavior of everyone connected with an office charged with the dispensation of justice is circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and lowest of its personnel.36 As the Court held in another administrative case for dishonesty:

x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not be countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the slightest breach of duty by, and the slightest irregularity in the conduct of, said officers and employees, if so warranted. Such breach and irregularity detract from the dignity of the highest court of the land and erode the faith of the people in the judiciary.

x x x x

As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or circumvention, on the part of any employee to follow and conform to the rules and regulations enunciated by this Court and the Commission on Civil Service, should be tolerated. The Court, therefore, will not hesitate to rid its ranks of undesirables who undermine its efforts toward an effective and efficient system of justice.37 (Emphasis added)

We will not tolerate dishonesty for the Judiciary expects the best from all its employees.38 Hindi namin papayagan ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakamabuti sa lahat nitong kawani.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

G.R. No. 168670             April 13, 2007

OFFICE OF THE OMBUDSMAN, Petitioner, vs.HEIDI M. ESTANDARTE andTHE COURT OF APPEALS, TWENTIETH DIVISION, Respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is a Petition for Review of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 85585 dated June 14, 2005 which set aside the decision of the Office of the Ombudsman (Visayas) finding respondent Heidi M. Estandarte guilty of grave misconduct.

The antecedents are as follows:

On August 17, 1998, People’s Graftwatch, through its Chairman, Dr. Patricio Y. Tan, referred to the Office of the Ombudsman (Visayas), for immediate investigation, a complaint of the Faculty Club and Department Heads of the Ramon Torres National High School (hereinafter the Faculty Club) against Heidi Estandarte, the school principal. The complaint consisted of 33 allegations of improprieties ranging from illegal handling of school funds, irregular financial transactions, perjury, and abuse of authority.2 However, the complaint was not subscribed and sworn to by the complainant, and not supported by the sworn statements of witnesses. The complaint also lacked a statement of non-forum shopping as required under CSC Resolution No. 95-3099 dated May 9, 1995.3 The Ombudsman (Visayas) treated the matter as a request for assistance, and docketed the complaint as RAS-VIS 98-1030.

On August 31, 1998, the Ombudsman forwarded the complaint to the Department of Education, Culture and Sports Regional Office VI (DECS-Region VI) and the Commission on Audit (COA) for appropriate action pursuant to Section 15(2) of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989.4 On September 29, 1998, the DECS-Region VI found that the complaint did not comply with the formalities under Executive Order No. 292, otherwise known as The Administrative Code of 1987. Thus, it dismissed the complaint, without prejudice to the filing of an appropriate one.

Undaunted, the Faculty Club filed a formal complaint – sworn and subscribed to by the complainants – with DECS-Region VI on February 5, 1999.5 However, in a letter6 dated February 12, 1999, the said office dismissed the complaint outright for lack of verification and certification against forum shopping.

On March 22, 1999, the DECS-Region VI received the requisite verification and certification.7 This case was entitled "Faculty and Department Heads of the Ramon

Torres National High School, Bago City v. Heidi Estandarte."

On April 19, 1999, the DECS-Region VI required Estandarte to answer the charges in writing.8 Estandarte filed her answer to the complaint on June 7, 1999.9 Thereafter, a Special Investigating Committee was created to hear the case; DECS-Region VI approved the composition of the Committee in a 1st Indorsement dated July 26, 1999.10The Committee issued a subpoena duces tecum addressed to the State Auditor assigned to the case, requiring him to produce the original copies of certain documents. The State Auditor, however, replied that he could not comply with the subpoena because the documents are being used by the Ombudsman (Visayas) in the criminal and administrative cases pending before it which concerned the same parties.11

On September 17, 1999, the Committee held a pre-hearing conference.12 It issued a 1st Indorsement on December 6, 1999, recommending the dismissal of the case on the ground of forum shopping.

Meanwhile, the COA referred the complaint against Estandarte to the Provincial Auditor for the Province of Negros Occidental, Crispin A. Pinaga, Jr. Pursuant thereto, Pinaga conducted an investigation and submitted his report to the Ombudsman (Visayas). He found that Estandarte’s actions in connection with 24 of the 33 allegations in the complaint were "within the bounds of propriety."13 The Provincial Auditor made the following findings:

Complaint No. 2 - The collections of miscellaneous fee of Ten Pesos (P10.00) (Annex II) per student upon enrolment which was not authorized by DECS.

As explained by the principal in her letter dated June 8, 1998, this practice had been going on when she assumed thereat and the same has the implied permission of the PTA (Annex III).

Finding:

The imposition of this miscellaneous fee of Ten Pesos (P10.00) is in violation of DECS Order No. 27 s. 1995 dated May 24, 1995 (Annex IV).

Complaint 19 & 24

The principal, Miss Heidi M. Estandarte bought the .38 Caliber Handgun and Shotgun which she registered under her name, which should not be done so because the money she used to purchase said firearm came from the student government fund.

Finding:

The firearms as alleged by the principal were intended for the use of the security guard of the school. However, the arm dealer had secured the licenses of the firearms in the name of the principal. These firearms had been

turned-over to the School Supply Officer (Annex V). Representations had been made for the transfer of the license to the school, Ramon Torres National High School (Annex VI-A).

Complaint 21 & 31

She sold, kept and disbursed the income of the old newspaper with no accounting by the COA since 1994.

Complaint 23 & 25

The principal Ms. Estandarte accepted cash and in kind donations without being properly channeled and accounted first by the property custodian and the cash without first [being] deposited in the Trust Fund.

Finding:

Cash donations as acknowledged by Ms. Heidi Estandarte are as follows:

Source Amount

Mrs. Ma. Belen J. Elizalde(not Phil-Am Life) (Annex VI) P 10,000.00

Coca Cola Bottlers (Annex VIII) 100,000.00

Mr. Kojima (Annex IX) 53,400.00

Sales – Old Newspaper (Annex X)

3,949.00

T o t a l P167,349.00===========

The donations and the proceeds from the sale of old newspaper were personally received and disbursed by Ms. Estandarte. However, these amounts were not acknowledged through the issuance of official receipts. Hence the donations were not taken up in the book of accounts of the school. Further these amounts were disbursed personally by the principal Ms. Heidi Estandarte who acted as the procurement and disbursing officer at the same time and in violation of the applicable law which provides to wit:

Section 63, PD 1445

Accounting for Moneys and Property received by public officials – Except as may otherwise be specifically provided by law or competent authority all moneys and property officially received by a public office in any capacity or upon any occasion must be accounted for as government funds and government property. Government property should be taken up in the books of the agency concerned at acquisition cost or an appraised value.

Section 68 PD 1445

Issuance of Official Receipt – (1) No payment of any nature shall be received by a collecting officer without immediately issuing an official receipt in acknowledgment thereof. The receipt may be in the form of postage, internal revenue or documentary stamps and the like, or officially numbered receipts, subject to proper custody, accountability and audit.

Section 112 PD 1445

Recording of financial transactions – Each government agency shall record its financial transactions and operation conformably with generally accepted accounting principles and in accordance with pertinent laws and regulations.

In view of the foregoing findings of the Auditor, the Ombudsman (Visayas) issued the Memorandum dated October 8, 1999, with the following recommendation:

1.) This RAS be upgraded to criminal and administrative cases against Ms. Estandarte;

2.) Provincial Auditor Crispin Pinaga, Jr. be required to submit (his) Affidavit/s or sworn statement/s in order to substantiate his findings. The same is true with respect to the complaints;

3.) Upon receipt of the Affidavits of Provincial Auditor Pinaga, Jr. and the complainants, a preventive suspension order be issued against respondent Estandarte for a period as may be warranted under the circumstance, to be determined and recommended by the investigator to whom the administrative case may be assigned; and

4.) RAS-VIS-98-1030 be considered closed and terminated.14

The Ombudsman (Visayas) decided to refer the administrative aspect of the case (OMB-VIS-ADM-99-0941, entitled "COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte") to the DECS-Region VI for administrative adjudication pursuant to Section 23(2) of Rep. Act No. 6770. The complete records of the case were forwarded to the DECS-Region VI in a letter dated November 29, 1999.15

It appeared, however, that the DECS-Region VI did not receive this referral because on December 7, 1999, it inquired on the status of RAS-VIS-98-1030 from the Ombudsman (Visayas).16 On March 9, 2000, the Ombudsman (Visayas) inquired about the progress of the case from the DECS-Region VI,17 and when it did not receive an answer, it sent another letter-inquiry on September 21, 2000.18 Finally, on November 22, 2000, the Ombudsman (Visayas) received a letter from the DECS-Region VI informing it that the latter did not receive any referral concerning the case.19 Hence, the Ombudsman (Visayas) again forwarded the records of the case to the DECS-Region VI, which received them on December 26, 2000.20

The DECS-Region VI directed the consolidation of this case (COA Region 6, Office of the Provincial Auditor v. Heidi Estandarte) with the case pending before it (Faculty and Department Heads of the Ramon Torres National High School, Bago City v. Heidi Estandarte).21 Thereafter, the hearing of the case by the Special Investigating Committee resumed.

In view of the referral to DECS-Region VI, the Ombudsman (Visayas) considered OMB-VIS-ADM-99-0941 closed and terminated in its Memorandum of November 27, 2001.22

In a letter23 dated April 29, 2002, the Faculty Club requested the Ombudsman (Visayas) to take over the case for speedier disposition. Ms. Lucia Jane Grecia, a member of the Faculty Club, also wrote a letter to the Ombudsman (Visayas) complaining that she was being oppressed by Estandarte. She likewise requested the Ombudsman (Visayas) to take over the case. Consequently, on July 5, 2002, the Ombudsman (Visayas) informed the DECS-Region VI that it would not object if the case is returned to it.24

On August 16, 2002, DECS-Region VI turned over the records of the case to the Ombudsman (Visayas) for adjudication, stating that "[i]t is the impression of this Office that the complainants intend that their case be heard by the Office of the Ombudsman and that Office had also manifested its willingness to reassume jurisdiction of the same."25 The case was docketed as OMB-V-A-02-0572-J.

On November 6, 2002, the Ombudsman (Visayas) set the case for preliminary conference.26 In the meantime, Estandarte filed an Urgent Motion to Remand27 the case to the DECS-Region VI on the ground that jurisdiction is now exclusively vested on the latter. On December 17, 2002, the Ombudsman (Visayas) denied the motion ratiocinating that it was not barred from assuming jurisdiction over the complaint after the DECS-Region VI had relinquished its jurisdiction over the same.28 Estandarte filed a motion for reconsideration of said Order, which was later denied by the Ombudsman (Visayas).29

The preliminary conference was set on May 21, 2003. On the said date, only the counsel of COA was present. The Ombudsman (Visayas), therefore, issued an Order stating that in view of Estandarte’s failure to attend the scheduled hearing, she is deemed to have waived her right to a formal investigation unless she is able to justify her absence. In an Urgent Motion for Postponement,30 Estandarte’s counsel explained that he was due to attend a hearing in another court on the scheduled day of the hearing. He manifested that they intended to challenge the Ombudsman’s order denying the motion to remand the case to the DECS-Region VI through a petition for certiorari. In its Order31 dated July 24, 2003, the Ombudsman reset the preliminary conference to July 30, 2003.

On July 21, 2003, Estandarte filed a Motion to Suspend Proceedings on the ground that she filed a petition for

review on certiorari with the CA assailing the order denying her motion to remand the case to the DECS-Region VI. The Ombudsman denied the motion.32

On July 29, 2003 Estandarte filed an Urgent Motion for Postponement33 of the hearing scheduled the following day, and a Motion for Reconsideration with Motion for Voluntary Inhibition, assailing the denial of her motion to suspend the proceedings. However, due to her failure to furnish the complainants with a copy of the motion to postpone, the Ombudsman (Visayas) proceeded with the preliminary conference with only the complainants present. Thereafter, the case was submitted for resolution.34

In a Decision dated March 9, 2004, the Ombudsman (Visayas) found Estandarte guilty of grave misconduct, thus:

WHEREFORE, premises considered, respondent Heidi Estandarte, Principal, Ramon Torres National High School, Bago City, Negros Occidental, is hereby found guilty of Grave Misconduct, and is meted the penalty of Dismissal from Service, with perpetual disqualification to hold public office and forfeiture of all benefits and cancellation of Civil Service eligibilities.35

The Ombudsman (Visayas) held that Estandarte’s failure to issue receipts for the donations received in violation of Sections 63, 68, and 112 of Presidential Decree (PD) No. 1445, as well as "the appropriation for personal use of the proceeds from the sale of the old newspapers and the counterpart contribution of the students for diploma case," constitute grave misconduct. The act of submitting receipts which do not prove that disputed items were purchased suggests that Estandarte is predisposed to commit misrepresentation.36

Estandarte filed a petition for review with prayer for the issuance of a temporary restraining order/writ of preliminary injunction with the CA. She alleged that the Ombudsman (Visayas) violated her right to due process when her request for a formal investigation was denied; that the DECS-Region VI has jurisdiction over the case; and that the Ombudsman (Visayas) failed to act with the cold neutrality of an impartial judge.37

On September 10, 2004, the CA ordered the issuance of a TRO.38 It later granted Estandarte’s application for a writ of preliminary injunction in a Resolution39 dated November 10, 2004.

On June 14, 2005, the CA issued the assailed Decision granting the petition and remanding the case to the Special Investigating Committee of the DECS-Region VI. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in the case at bench, SETTING ASIDE the decision rendered by the Office of the Ombudsman (Visayas) on March 9, 2004 in OMB-V-A-02-0572-J and the order issued by it in the same case on June 3, 2004 and ORDERING the Office of the Ombudsman (Visayas)

to remand the record of OMB-VIS-ADM-99-0941 to the Special Investigating Committee of DECS-Region VI created on July 26, 1999 for the said committee to conduct further proceedings therein with utmost dispatch and eventually to submit its findings and recommendations to the Director of Public Schools for the proper disposition thereof.

IT IS SO ORDERED.40

The CA held that the Ombudsman (Visayas) acted without or in excess of jurisdiction when it took over the case after it issued a memorandum considering the case closed and terminated and after jurisdiction had already been vested in the Special Investigating Committee. Such act violates the doctrine of primary jurisdiction. Once jurisdiction is acquired by or attached to a proper investigative body or agency, such jurisdiction continues until the termination of the case. Citing Fabella v. Court of Appeals41 and Emin v. de Leon,42 the CA held that Rep. Act No. 4670 specifically covers and governs administrative proceedings involving public school teachers, and jurisdiction over such cases is originally and exclusively lodged with the Investigating Committee created pursuant to Section 9 of Rep. Act No. 4670. 43

The appellate court further held that, assuming the Ombudsman (Visayas) has jurisdiction, the assailed decision and order would have to be set aside because Estandarte was denied her right to substantive and procedural due process. It pointed out that she was denied the right to a formal investigation and the opportunity to be heard. Following the Court’s ruling in Tapiador v. Office of the Ombudsman,44 the CA held that the Ombudsman (Visayas) has no authority to directly impose the penalty of dismissal on those who are the subject of its investigation because its power is merely recommendatory.45

The Ombudsman, now petitioner, submits the following issues:

I.

THE OFFICE OF THE OMBUDSMAN HAS FULL ADMINISTRATIVE DISCIPLINARY JURISDICTION OVER PUBLIC OFFICIALS AND EMPLOYEES UNDER ITS AUTHORITY, INCLUDING THE LESSER POWER TO ENFORCE THE SANCTIONS MPOSED ON ERRING FUNCTIONARIES, PUBLIC SCHOOL TEACHERS INCLUDED.

II.

THE RELIANCE BY THE HONORABLE COURT OF APPEALS ON THE OBITER DICTUM IN TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322 (2002) DISPOSSESING THE OMBUDSMAN OF ITS DISCIPLINARY AUTHORITY, CONSTITUTES A GRAVE ERROR CONSIDERING THAT: THE POWER OF THE OMBUDSMAN TO IMPLEMENT ITS JUDGMENTS HAS ALREADY BEEN SETTLED BY NO LESS THAN THE HONORABLE COURT IN THE CASE OF LEDESMA [VS.] COURT OF APPEALS, ET AL., 465 SCRA 437 (2005), AND

FURTHER AFFIRMED IN THE CASE OF OFFICE OF THE OMBUDSMAN VS. COURT OF APPEALS, ET AL., G.R. NO. 160675, PROMULGATED ON 16 JUNE 2006.

III.

THE OFFICE OF THE OMBUDSMAN DID NOT COMMIT ANY REVERSIBLE ERROR WHEN IT TOOK OVER THE ADMINISTRATIVE ADJUDICATION OF THE DISCIPLINARY CASE AGAINST PRIVATE RESPONDENT ESTANDARTE. AS IN POINT OF LAW IT ACQUIRED JURISDICTION OVER THE SAID CASE WHEN THE DEPARTMENT OF EDUCATION REFERRED THE SAME TO THE OMBUDSMAN.

IV.

CONTRARY TO THE FINDINGS OF THE APPELLATE COURT, PRIVATE RESPONDENT ESTANDARTE WAS NOT DENIED SUBSTANTIVE AND PROCEDURAL DUE [PROCESS], AND NEITHER WAS THE ADMINISTRATIVE PROCEEDING AGAINST HER TAINTED WITH ANY IRREGULARITY, AS IN FACT THE OMBUDSMAN AFFORDED HER DUE PROCESS.

V.

SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE FINDINGS OF GUILT OF PRIVATE RESPONDENT ESTANDARTE WHICH WARRANTS THE IMPOSITION ON HER OF THE ADMINISTRATIVE PENALTY OF DISMISSAL FROM THE SERVICE.46

Petitioner contends that the CA erred in holding that it is bereft of the authority to directly impose on the respondent the sanction of dismissal from service. It stresses that it has full and complete administrative disciplinary jurisdiction over public school teachers. It points out that Ledesma v. Court of Appeals47 already declared that the ruling in the Tapiador case, that the Ombudsman has no authority to directly dismiss an employee from government service, is merely an obiter dictum. Therefore, it has the authority to determine the administrative liability of a public official or employee, and direct and compel the head of office and agency concerned to implement the penalty imposed.48

Petitioner submits that it has concurrent disciplinary jurisdiction with the DECS over the administrative case against the respondent. Jurisdiction over the said case is not exclusive to the DECS, as the respondent is a public official and the offense charged pertains to the performance of her official functions. Consequently, there is no bar for it to take cognizance of the case after the DECS referred it for administrative adjudication.49

Petitioner further avers that the Fabella case is not applicable to the present case because it does not involve an issue of illegal constitution of any investigating committee. Rep. Act No. 4670 provides for the administrative disciplinary procedure in cases involving public school teachers where the case is filed with the DECS.50

Petitioner contends that the respondent was given ample opportunities to rebut the charges and defend herself from the administrative case filed against her. By her failure to comply with the order to submit a position paper, submitting instead frivolous motions that delayed the proceedings, respondent was deemed to have waived her right to a formal investigation. Petitioner points out that respondent opted for a formal investigation only when the case was submitted for resolution.51

Finally, petitioner maintains that its finding is based on more than substantial evidence. Factual findings of administrative and quasi-judicial agencies are generally accorded not only respect but at all times finality.52

Respondent, for her part, argues that petitioner cannot divest the DECS of its jurisdiction over the administrative case because "once jurisdiction attaches, it continues until the termination of the case." She posits that when the DECS assumed jurisdiction over the case, the petitioner was effectively precluded from assuming the same jurisdiction.53

The pivotal issue in this petition is whether or not the DECS has exclusive jurisdiction over the case.

The petition has no merit.

The jurisdiction of the Ombudsman over disciplinary cases against government employees, which includes public school teachers, is vested by no less than Section 12, Article XI of the Constitution which states—

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.54

In a case of recent vintage, the Court held that the Ombudsman has full administrative disciplinary authority over public officials and employees of the government, thus:

All these provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty.55

However, Section 9 of Rep. Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, provides that:

Section 9. Administrative Charges. — Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher’s organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That, where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

In Fabella v. Court of Appeals,56 the Court ruled that Section 9 of Rep. Act No. 4670 reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers. And in Alcala v. Villar,57 this Court emphasized that:

Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed by impeachment or over Members of Congress, and the Judiciary. However, in Fabella v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers.581a\^/phi1.net

Undoubtedly, the DECS-Region VI first assumed jurisdiction over the administrative complaint against the respondent. It should be recalled that when People’s Graftwatch forwarded the complaint to the Ombudsman (Visayas), the latter treated it as a request for assistance and referred it to the DECS-Region VI and COA for appropriate action. After it had resolved to upgrade the matter to an administrative case, the Ombudsman decided not to take cognizance of the same and refer it, instead, to the DECS-Region VI pursuant to Section 23(2) of R.A. 6770 which provides:

Section 23. Formal Investigation.—

x x x x

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative

proceedings against erring public officers or employees, which shall be terminated within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding five thousand (P5,000.00). (Emphasis supplied.)

We do not agree with petitioner’s contention that it could assume jurisdiction over the administrative case after the DECS-Region VI had voluntarily relinquished its jurisdiction over the same in favor of the petitioner. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.59 When the complainants filed their formal complaint with the DECS-Region VI, jurisdiction was vested on the latter. It cannot now be transferred to petitioner upon the instance of the complainants, even with the acquiescence of the DECS and petitioner.1ªvvphi1.nét

Nonetheless, even if we hold that the Ombudsman (Visayas) had concurrent jurisdiction over the administrative case, we would still sustain the DECS’ authority to decide the administrative case. In one case, the Court pronounced that—

In any event, since We are not dealing with jurisdiction but mainly with venue, considering both court concerned do have jurisdiction over the cause of action of the parties herein against each other, the better rule in the event of conflict between two courts of concurrent jurisdiction as in the present case, is to allow the litigation to be tried and decided by the court which, under the circumstances obtaining in the controversy, would, in the mind of this Court, be in a better position to serve the interests of justice, considering the nature of the controversy, the comparative accessibility of the court to the parties, having in view their peculiar positions and capabilities, and other similar factors. x x x x60

Considering that the respondent is a public school teacher who is covered by the provisions of Rep. Act No. 4670, the Magna Carta for Public School Teachers, the DECS-Region VI is in a better position to decide the matter. Moreover, the DECS has already commenced proceedings over the administrative case by constituting the Special Investigating Committee pursuant to Section 9 of Rep. Act No. 4670.

We are not unmindful of the Court’s ruling in Emin v. De Leon61 reiterated in Alcala v. Villar,62 that a party may be estopped from assailing the jurisdiction of the DECS:

As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review before the CA. He did

not raise this matter in his Motion to Dismiss filed before the CSC Regional Office. Notably, in his Counter-Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was "open to further investigation by the CSC to bring light to the matter" and by further praying for "any remedy or judgment which under the premises are just and equitable. It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction, when adverse.63

However, the rulings of the Court in Alcala and de Leon are not applicable in this case. From the very start, respondent consistently protested the referral of the case back to the Ombudsman, and demanded that the same be remanded to the DECS. She refused to participate in the proceedings before the Ombudsman precisely because she believed that jurisdiction was already vested on the DECS-Region VI. Hence, she filed instead a motion to remand the case to the DECS-Region VI and motions to postpone or suspend the proceedings. On the other hand, what was striking in the Emin and Alcala cases was that the respondent therein actively participated in the proceedings before the other tribunal.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals dated June 14, 2005 is AFFIRMED.

SO ORDERED.

G.R. No. 172635               October 20, 2010

OFFICE OF THE OMBUDSMAN, Petitioner, vs.PEDRO DELIJERO, JR., Respondent.

D E C I S I O N

PERALTA, J.:

Before this Court is a petition for review on certiorari,1 under Rule 45 of the Rules of Court, seeking to set aside the June 7, 2005 Decision2 and May 2, 2006 Resolution3 of the Court of Appeals (CA), in CA-G.R. SP No. 00017.

The facts of the case, as culled from the records, are as follows:

Respondent Pedro Delijero, Jr., was a public school teacher at the Burauen Comprehensive National High School, Burauen, Leyte and was administratively charged for Grave Misconduct.

A complaint against respondent was filed before petitioner Office of the Ombudsman as a Request for Assistance (RAS) from the President of the Burauen Watchdog Committee for Good Government. Philip Camiguing, Graft Prevention & Control Officer I, submitted his final evaluation report and recommended that the RAS be upgraded into an administrative and criminal complaint against respondent.4

The complainant, Cleofas P. dela Cruz, was the mother of the alleged victim Myra dela Cruz (Myra). At the time of the incident, Myra was only 12 years old and a first year high school student at the Burauen Comprehensive National High School. Respondent, on the other hand, was Myra's 52-year-old Mathematics teacher.5

Sometime in May 2003, complainant learned from her cousin that respondent was courting her daughter Myra. Complainant then immediately confronted Myra, who admitted having received from respondent several handwritten love letters, a Valentine's card and Two Hundred Pesos as allowance.6

In her Affidavit,7 Myra gave the following declarations, to wit:

x x x x

2. Sometime on August 12, 2002, our Mathematics teacher, Mr. Pedro Delijero, started courting me, by sending love notes, valentines cards thru my classmates Angelyn del Pilar, Maricel Gayanes, Irene Cajote;

3. Last April 7, 2003, at about 10:00 a.m., more or less, my math teacher, Mr. Pedro Delijero, who was inside his room, [called] my attention, and as I got inside the said room, he abruptly

closed the open door, thereby, immediately kissed my cheek, out of fear, I pushed him away from me, and I rushed to the door of said room and went outside.8

Maricel Gayanes, Irene Cajote and Angelyn del Pilar, all classmates of Myra, submitted their Joint Affidavit9the pertinent portions of which read:

x x x x

In several instances, which we cannot anymore recall the dates, we were requested by our Math teacher Mr. Pedro Delijero, Jr. to handed the letters to my classmate Myra Dela Cruz,

4. We have the knowledge of all the letters sent to her, as "LOVE LETTERS" as it was confirmed by our classmate Myra dela Cruz, that those letters which we brought to her, were all love letters from our Math teacher, Mr. Pedro Delijero, since Mr. Delijiro is courting her, same were true with regard to Valentine's Cards, as well as the 2 pieces of One Hundred Peso Bill (P100.00) being inserted at the intermediate pad paper, x x x

Respondent submitted a Counter-Affidavit10 in his defense. Respondent denied kissing Myra in the morning of April 7, 2003. Moreover, respondent claimed that Myra fell in love with him and wrote him love letters. Respondent claimed that he was merely forced to answer her letters as she threatened him that she would kill herself if he would not answer her and reciprocate her love. Lastly, respondent claimed that their relationship was merely platonic.

Petitioner called the parties to a preliminary conference and, after which, ordered them to submit their respective position papers.

Respondent, however, did not submit a position paper but instead submitted a Manifestation11 stating that the administrative aspect of the complaint was likewise the subject of a complaint filed by complainant before the Office of the Regional Director, Department of Education, Regional Office VIII, Palo, Leyte.

On May 17, 2004, petitioner rendered a Decision12 finding respondent guilty of Grave Misconduct and meted him the penalty of dismissal, the dispositive portion of which reads:

WHEREFORE, premises considered, this Office finds respondent PEDRO DELIJERO, JR. guilty of Grave Misconduct and, pursuant to Section 46 (b) of the Revised Administrative Code of 1987, he is, therefore, meted the penalty of DISMISSAL from public service, forfeiture of all benefits and perpetual disqualification to hold public office.

SO DECIDED.13

Respondent moved for a reconsideration14 of petitioner's decision. Respondent asked that the order of dismissal be reconsidered and, instead, be changed to a penalty of suspension. On May 14, 2004, petitioner issued an Order15 denying respondent's motion for reconsideration.

Aggrieved, respondent then appealed to the CA.

On June 7, 2005, the CA rendered a Decision ruling in favor of respondent, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case and SETTING ASIDE the Decision dated May 17, 2004 and the Order dated July 30, 2004 rendered and issued by the Office of the Ombudsman in OMB-VIS-A-03-0506-4.

IT IS SO ORDERED.16

The CA, without ruling on the issues raised by respondent, instead tackled the issue of jurisdiction motu proprio.The CA ruled that petitioner had no jurisdiction to investigate the complaint filed before it as Republic Act No. 4670 (RA 4670), the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. The CA held that petitioner should have immediately dismissed the case after respondent had informed it, through a manifestation, of the pendency of an administrative complaint before the DECS. Moreover, the CA ruled that even assuming arguendo that petitioner had the power to investigate the complaint, it still had no power to directly impose sanctions against respondent as its power is limited to only recommend the appropriate sanctions, but not to directly impose the same.

Petitioner then filed an Omnibus Motion to Intervene and for Reconsideration17 assailing the Decision of the CA. On May 2, 2006, the CA issued a Resolution denying petitioner's motion.

Hence, herein petition, with petitioner raising the following issues for this Court's resolution, to wit:

I.

THE OFFICE OF THE OMBUDSMAN HAS FULL AND COMPLETE ADMINISTRATIVE DISCIPLINARY AUTHORITY OVER PUBLIC SCHOOL TEACHERS, WHICH AUTHORITY IS CONCURRENT WITH OTHER DISCIPLINING AUTHORITIES SANCTIONED BY NO LESS THAN REPUBLIC ACT NO. 4670, OTHERWISE KNOWN AS "THE MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS," AND THE CIVIL SERVICE LAW (PD 807, BOOK V OF EO 292).

II.

SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS) HAS NOT ADDED PUBLIC SCHOOL TEACHERS TO THE LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMAN'S ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE 1987 CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF UNCONSTITUTIONALITY.

III.

THE ISSUE OF WHETHER OR NOT THE OMBUDSMAN HAS THE AUTHORITY TO DETERMINE THE ADMINISTRATIVE LIABILITY OF AN ERRING PUBLIC OFFICIAL OR EMPLOYEE, AND TO DIRECT AND COMPEL THE HEAD OF THE CONCERNED OFFICE OR AGENCY TO IMPLEMENT THE PENALTY IMPOSED, HAS ALREADY BEEN SETTLED BY THE HONORABLE COURT IN THE CASE OF LEDESMA VS COURT OF APPEALS, ET AL., 465 SCRA 437 (2005).18

The petition is meritorious.

This Court shall jointly discuss the first and second issues as the same are interrelated. Petitioner mainly argues that its administrative disciplinary authority over public school teachers is concurrent with the Department of Education, Culture and Sports (DECS) disciplining authority.

Petitioner is correct. The issue is not novel.

In Office of the Ombudsman v. Medrano,19 (Medrano) this Court ruled that the administrative disciplinary authority of the Ombudsman over a public school teacher is not an exclusive power but is concurrent with the proper committee of the DECS, to wit:

In resolving the second issue – whether petitioner has jurisdiction over the administrative complaint against respondent – it is necessary to examine the source, nature and extent of the power and authority of the Ombudsman vis-à-vis the provisions of the Magna Carta for Public School Teachers.

Section 5, Article XI of the Constitution "created the independent Office of the Ombudsman." Hailed as the "protectors of the people," the Ombudsman and his Deputies are bestowed with overreaching authority, powers, functions, and duties to act on complaints against public officials and employees, as provided in Sections 12 and 13 thereof, thus:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed inany form or man

ner against public officials or employees of the Government, or any subdivision, agency orinstrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.1avvphil

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency; and

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties asmay be provided by law. (Underscoring supplied)

The above enumeration of the Ombudsman’s far-reaching powers is not exclusive as the framers of the Constitution gave Congress the leeway to prescribe, by

subsequent legislation, additional powers, functions or duties to the Ombudsman, as mandated in Section 13(8), quoted above.

Pursuant to the constitutional command, Congress enacted R.A. No. 6770 (The Ombudsman Act of 1989) providing for the functional, structural organization, and the extent of the administrative disciplinary authority of the petitioner. The provisions of this law "apply to all kinds of malfeasance, misfeasance, and nonfeasance" committed by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, "during his tenure in office." The acts or omissions which the petitioner may investigate are quite extensive:

SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited, to actsor omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency’s functions, though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Its mandate is not only to "act promptly on complaints" against such public officers or employees, but also to "enforce their administrative, civil and criminal liability in every case where the evidence warrants in order topromote efficient service by the Government to the people."

R.A. No. 6770, however, restrains the petitioner from exercising its disciplinary authority "over officials who may beremoved only by impeachment or over Members of Congress and the Judiciary," thus:

SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall havedisciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment orover Members of Congress and the Judiciary.

SEC. 22. Investigatory Power.– The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verifiedcomplaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. (Underscoring supplied)

The above constitutional and statutory provisions taken together reveal the manifest intent of the lawmakers to bestow upon the petitioner full administrative disciplinary power over public officials and employees except those impeachable officials, Members of Congress and of the Judiciary.

When an administrative charge is initiated against a public school teacher, however, Section 9 of the Magna Carta for Public School Teachers specifically provides that the same shall be heard initially by an investigating committeecomposed of the school superintendent of the division, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers’ organization, and a supervisor of the division, as members, thus:

SEC. 9. Administrative Charges. – Administrative charges against a teacher shall be heard initially by a committeecomposed of the corresponding Schools Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative ofthe local or, in its absence, any existing provincial or national teachers’ organization and a supervisor of theDivision, the last two to be designated by the Director of Public Schools. The committee shall submit its findingsand recommendations to the Director of Public Schools within thirty days from termination of the hearings; Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. (Underscoring supplied)

In Fabella v. Court of Appeals, the Court held:

The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, whichspecifically covers administrative proceedings involving public school teachers. Section 9 of said law expressly provides that the committee to hear public school teachers’ administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers’ organization, and a supervisor of the division. x x x.

x x x x

The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and aseparate set of procedural requirements in connection with administrative proceedings involving publicschoolteachers. x x x. (Emphasis and underscoring supplied)

Significantly, The Ombudsman Act of 1989 recognizes the existence of some "proper disciplinary authorit[ies]," such as the investigating committee of the DepEd mentioned in Section 9 of the Magna Carta for Public School Teachers. Thus, Section 23 of The Ombudsman Act of 1989 directs that the petitioner "may refer certaincomplaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees."

In light of this, the Court holds that the administrative disciplinary authority of the Ombudsman over a public school teacher is not an exclusive power but is concurrent with the proper committee of the DepEd.

In the instant case, respondent, although designated as then OIC of a public school and concurrently the school principal of another public school, is undoubtedly covered by the definition of the term "teacher" under the second paragraph of Section 2 of the Magna Carta for Public School Teachers which provides:

SEC 2. Title – Definition. – This Act shall x x x apply to all public school teachers except those in the professorial staff of state colleges and universities.

As used in this Act, the term ‘teacher’ shall mean all persons engaged in the classroom, in any level of instruction; on full time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees. (Underscoring supplied)

Thus, the administrative complaint against respondent should have been referred by petitioner to the proper committee of the DepEd for the institution of appropriate administrative proceedings, in light of Section 23 of The Ombudsman Act of 1989.20

Based on the foregoing, while petitioner has concurrent administrative disciplinary authority with the DECS over public school teachers, Section 23 of the Ombudsman Act of 1989 provides that the Ombudsman may refer a complaint to the proper disciplinary authority. Under the circumstances obtaining herein, it would have been more prudent for petitioner to have referred the complaint to the DECS given that it would have been in a better position to serve the interest of justice considering the nature of the controversy. Respondent is a public school teacher and is covered by RA 4670,

therefore, the proceedings before the DECS would have been the more appropriate venue to resolve the dispute.

In any case, the foregoing pronouncement does not automatically mean that this Court is nullifying the proceedings before the Ombudsman as estoppel has already set in.

In Medrano, this Court ruled that the active participation of an individual before the administrative proceedings and the belated challenge to the jurisdiction of the said body bars him from assailing such acts under the principle of estoppel, to wit:

x x x While petitioner should have desisted from hearing the administrative complaint against respondent and referred it to the proper DepEd committee, given that it had already concluded the proceedings and had rendered a decision thereon, respondent is now barred from assailing petitioner’s acts under the principle of estoppel. He had actively participated in the administrative proceedings before petitioner. In his Counter-Affidavit, he asked petitioner for affirmative relief by seeking the dismissal of the administrative complaint allegedly for being baseless.From then on,  he was assisted by counsel in filing several motions. When he was preventively suspended for six months without pay, he filed a Motion for Reconsideration praying that "a new Order be issued reversing or setting aside the preventive suspension Order." When this was denied, he again filed a Supplemental Motion for Reconsideration for the lifting of his suspension since he was already replaced as OIC, which motion was granted. It was only after petitioner had rendered an adverse Decision that he, in a Motion for Reconsideration, impugned petitioner’s assumption of jurisdiction over his case. Verily, respondent cannot be permitted to challenge petitioner’s acts belatedly. (Underscoring supplied).21

Likewise, in Office of the Ombudsman v. Galicia,22 this Court ruled that the right to due process was not violated, notwithstanding that the DECS had original jurisdiction to hear the complaint, thus:

In the present case, records show that Galicia was given the right to due process in the investigation of the charges against him. He participated in the proceedings by making known his defenses in the pleadings that he submitted. It was only when a decision adverse to him was rendered did he question the jurisdiction of the Ombudsman.

Under the principles of estoppel and laches, We rule that it is now too late for Galicia to assail the administrative investigation conducted and the decision rendered against him.

x x x x

The essence of due process in administrative proceedings is an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. During the proceedings before the Ombudsman, Galicia filed a Counter-Affidavit, Rejoinder-

Affidavit, Comment on the Certification of the CCPC Registrar, and a Rejoinder to Reply. He also submitted documents in support of his contentions. Likewise, there is no indication that the proceedings were done in a manner that would prevent him from presenting his defenses. Verily, these suffice to satisfy the requirements of due process because the opportunity to be heard especially in administrative proceedings (where technical rules of procedure and evidence are not strictly applied) is not limited to oral arguments. More often, this opportunity is conferred through written pleadings that the parties submit to present their charges and defenses.

In sum, We reiterate that it is the School Superintendent and not the Ombudsman that has jurisdiction over administrative cases against public school teachers. Yet, Galicia is estopped from belatedly assailing the jurisdiction of the Ombudsman. His right to due process was satisfied when he participated fully in the investigation proceedings. He was able to present evidence and arguments in his defense. The investigation conducted by the Ombudsman was therefore valid.23

In the case at bar, respondent actively participated in the proceedings before the Ombudsman. He submitted his counter-affidavit, an affidavit of his witness, and attached annexes. Respondent even filed a Motion for Reconsideration asking for affirmative relief from the Ombudsman.

The case at bar is, however, somewhat peculiar because when petitioner asked the parties to submit their position papers, respondent did not submit one and instead filed a Manifestation24 informing petitioner of another proceeding before the DECS, to wit:

x x x x

2. That the administrative aspect of the complaint is likewise the subject of a complaint filed by the complainant before the Office of the Regional Director, DepEd, Regional Office VIII, Government Center, Palo, Leyte, a copy of which complaint is hereto attached and also made as part of this manifestation.

3. The with the investigation being made by this office, and the filing of the complaint with the Court as regard the criminal aspect of the complainant, and the pendency of the administrative complaint before the DepEd, it appears that the respondent is being charged and made to answer twice for the same offense.

4. That with the submission of the foregoing manifestation, and the respondent having already filed his counter affidavit and the affidavit of his witnesses and the exhibits attached thereto, the respondent submits the same for the resolution of this Office.25

The CA ruled that in view of respondent's manifestation, petitioner should have immediately dismissed the case filed before it as the DECS has the proper jurisdiction to hear and determine the administrative complaint over respondent.

We disagree.

To this Court's mind, the foregoing manifestation cannot by any stretch be considered as a direct attack on the proceedings before the Ombudsman. A plain reading of such manifestation would even lead to a conclusion that respondent had in fact submitted himself to the body's jurisdiction as he had already submitted his counter-affidavit, an affidavit of his witness and exhibits. If respondent wanted to assail the jurisdiction of the Ombudsman, he should have clearly prayed for the same through a motion to dismiss, a manifestation ad cautelam, or any other document of similar import. The phrase, "the respondent submits the same for the resolution of this Office," is indicative of respondent's submission to the Ombudsman's jurisdiction. Such conclusion is even bolstered by the fact that when respondent filed his petition for review before the CA, he made the following declaration, to wit:

9. That with the filing of his counter-affidavit, and the affidavit of his witnesses, and the filing of a criminal case by the respondent against petitioner, which criminal case is now still pending before the Regional Trial Court, Branch 15, Burauen, Leyte, and another administrative complaint with the Regional Director, Region VIII, of DepEd, Government Center, Palo, Leyte, petitioner filed a manifestation with the Ombudsman-Visayas, submitting this case for resolution. x x x261avvphi1

Lastly, anent the third issue raised by petitioner, the same is again meritorious.

The CA ruled that the power of the Ombudsman is only recommendatory and that it cannot impose sanctions against respondent. Petitioner, for its part, argues that the Office of Ombudsman has the authority to determine the administrative liability of an erring public official or employee, and to direct and compel the head of the concerned officer or agency to implement the penalty imposed.

Petitioner is correct.

In Office of the Ombudsman v. Masing,27 this Court settled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory, to wit:

We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that "the Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory." Implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held—

While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x removal, suspension, demotion x x x" of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 6770. (Emphasis supplied.)28

This Court notes that the CA granted respondent's petition on the sole ground of petitioner's alleged lack of jurisdiction which it tackled motu proprio. The CA did not discuss the other issues raised by respondent involving the appreciation of the findings of fact of the Ombudsman as well as respondent's appeal for the imposition of a lesser penalty. Just like in Medrano, given the evidentiary nature of respondent's appeal, this Court deems that justice would be best served to remand the case to the CA for it to decide the case on the merits.

WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision dated June 7, 2005 and Resolution dated May 2, 2006, in CA-G.R. SP No. 00017, are REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals which is directed to decide the case on the merits.

SO ORDERED.

G.R. No. 168766             May 22, 2008

THE CIVIL SERVICE COMMISSION, petitioner, vs.HENRY A. SOJOR, respondent.

D E C I S I O N

REYES, R.T., J.:

IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil servants and officials?

Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom?

The twin questions, among others, are posed in this petition for review on certiorari of the Decision1 of the Court of Appeals (CA) which annulled two (2) CSC Resolutions2 against respondent Henry A. Sojor.

The Facts

The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows:

On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the "Higher Education Modernization Act of 1997," was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a four-year term beginning September 1998 up to September 2002.3 Upon the expiration of his first term of office in 2002, he was appointed president of the institution for a second four-year term, expiring on September 24, 2006.4

On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU).5 A Board of Regents (BOR) succeeded the BOT as its governing body.

Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, to wit:

1. ADMC DC No. 02-20(A) – Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the absence of the required Plantilla and Salary Adjustment Form and valid appointments.6

2. ADM DC No. 02-20 – Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of their academic ranks.7

3. ADM DC No. 02-21 – Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism under the Administrative Code.8

Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping.

He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the non-competitive or unclassified service of the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigation, discipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resolved by the Office of the Ombudsman.9

Finding no sufficient basis to sustain respondent’s arguments, the CSC-RO denied his motion to dismiss in its Resolution dated September 4, 2002.10 His motion for reconsideration11 was likewise denied. Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism.12

Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same arguments in his motion to dismiss.13 He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of the jurisdiction granted to

CSC by virtue of Presidential Decree (P.D.) No. 80714 enacted in October 1975, respondent contended that this was superseded by the provisions of R.A. No. 8292,15 a later law which granted to the BOT the power to remove university officials.

CSC Disposition

In a Resolution dated March 30, 2004,16 the CSC dismissed respondent’s appeal and authorized its regional office to proceed with the investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states:

WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII, Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and submit the investigation reports to the Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90) days.17

In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote:

His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), which explicitly provides that, "He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee." Since the President of a state college is appointed by the Board of Regents/Trustees of the college concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a state college (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission.

The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC Board of Trustees have concurrent jurisdiction over cases against officials and employees of the said agency. Since the three (3) complaints against Sojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appellant to the exclusion of the latter agency.18 (Emphasis supplied)

The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proper. Nevertheless, it adopted the

formal charges issued by its regional office and ordered it to proceed with the investigation:

Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance with the procedure outlined in the aforestated Uniform Rules.19 (Emphasis supplied)

No merit was found by the CSC in respondent’s motion for reconsideration and, accordingly, denied it with finality on July 6, 2004.20

Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline the president of CVPC was exclusively lodged in the BOT of CVPC.

CA Disposition

On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist from enforcing its Resolution dated March 30, 2004 and Resolution dated July 6, 2004.21 Thus, the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended.

On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive part of the CA decision reads:

WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent.

SO ORDERED.22

The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that the enactment of R.A. No. 929923in 2004, which converted

CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty members, administrative officials, and employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of R.A. No. 8292.24 The power of the BOT to remove and discipline erring employees, faculty members, and administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision reads:

Power and Duties of Governing Boards. – The governing board shall have the following specific powers and duties in addition to its general powers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x

to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis added)

The CA added that Executive Order (E.O.) No. 292,25 which grants disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail over R.A. No. 9299,26 a special law.

Issues

Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004.27

Our Ruling

The petition is meritorious.

I. Jurisdiction of the CSC

The Constitution grants to the CSC administration over the entire civil service.28 As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation.29 It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement

to higher career positions; and (3) there is security of tenure. These include:

(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs;

(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.30

Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service Board.31 The positions covered by each level are:

(a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and

(c) The third level shall cover positions in the Career Executive Service.32

On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duration of a particular project for which purpose employment was made.33 The law states:

The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and

(5) Emergency and seasonal personnel.34

It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in the government service, whether career or non-career. From this grant of general jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the Civil Service.35 We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and the Commission central office (Commission Proper) is specified in the CSC rules as:

Section 4. Jurisdiction of the Civil Service Commission. – The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees.

Section 5. Jurisdiction of the Civil Service Commission Proper. – The Civil Service Commission Proper shall have jurisdiction over the following cases:

A. Disciplinary

1. Decisions of Civil Service Regional Offices brought before it on petition for review;

2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal;

3. Complaints brought against Civil Service Commission Proper personnel;

4. Complaints against third level officials who are not presidential appointees;

5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice;

6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;

7. Appeals from the Order of Preventive Suspension; and

8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

B. Non-Disciplinary

1. Decisions of Civil Service Commission Regional Offices brought before it;

2. Requests for favorable recommendation on petition for executive clemency;

3. Protests against the appointment, or other personnel actions, involving third level officials; and

4. Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations.

Section 6. Jurisdiction of Civil Service Regional Offices. – The Civil Service Commission Regional Offices shall have jurisdiction over the following cases:

A. Disciplinary

1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and the persons complained of are employees of agencies, local or national, within said geographical areas;

2. Complaints involving Civil Service Commission Regional Office personnel who are appointees of said office; and

3. Petitions to place respondent under Preventive Suspension.

B. Non-Disciplinary

1. Disapproval of appointments brought before it on appeal;

2. Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC.

II. The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a state university.

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed during the time material to the present case, provides that the school’s governing board shall have the general powers of administration granted to a corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative officials, and employees for cause:

Section 4. Powers and Duties of Governing Boards. – The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x

h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with the requirements of due process of law. (Emphasis supplied)

The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exercise of corporate powers of the board of the school shall be exclusive:

Sec. 4. Administration. – The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation Code of the Philippines." The administration of the University and the exercise of its corporate powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board.

Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to remove its erring employees and officials?

In light of the other provisions of R.A. No. 9299, respondent’s argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granted to the BOR "in addition to its general powers of administration." This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the text of the said section is reproduced below:

Sec. 7. Powers and Duties of the Board of Regents. – The Board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the Board of Directors of a corporation under existing laws:

x x x x

i. To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the Revised Compensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of law.36 (Emphasis supplied)

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials.

Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.37

All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC.

This is not a case of first impression.

In University of the Philippines v. Regino,38 this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then:

The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal ordismissal from office." (Emphasis supplied)

Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states:

"The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters."

As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, UP is therefore governed by PD 807 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission.39 (Emphasis supplied)

In the more recent case of Camacho v. Gloria,40 this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the university’s BOR or directly with the CSC. We quote:

Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by the respondents in forming the investigating committee. The Civil Service Rules embodied in Executive Order 292

recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation.41 (Emphasis supplied)

Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violations of civil service rules against respondent.

III. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules.

Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study.42 Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires.43 They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student.44

That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal.45

This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis.46 For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom.

Lastly, We do not agree with respondent’s contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr.47 and Aguinaldo v. Santos48 are inapplicable to the present circumstances. Respondents

in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people.49 Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED.

SO ORDERED.

REPUBLIC ACT NO. 4670 June 18, 1966

THE MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS

I. DECLARATION OF POLICY COVERAGE

Sec. 1. Declaration of Policy. It is hereby declared to be the policy of this Act to promote and improve the social and economic status of public school teachers, their living and working conditions, their terms of employment and career prospects in order that they may compare favorably with existing opportunities in other walks of life, attract and retain in the teaching profession more people with the proper qualifications, it being recognized that advance in education depends on the qualifications and ability of the teaching staff and that education is an essential factor in the economic growth of the nation as a productive investment of vital importance.

Sec. 2. Title Definition. This Act shall be known as the "Magna Carta for Public School Teachers" and shall apply to all public school teachers except those in the professorial staff of state colleges and universities.

As used in this Act, the term "teacher" shall mean all persons engaged in classroom teaching, in any level of instruction, on full-time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees.

II. RECRUITMENT AND CAREER

Sec. 3. Recruitment and Qualification. Recruitment policy with respect to the selection and appointment of teachers shall be clearly defined by the Department of Education: Provided, however, That effective upon the approval of this Act, the following shall constitute the minimum educational qualifications for teacher-applicants:

(a) For teachers in the kindergarten and elementary grades, Bachelor's degree in Elementary Education (B.S.E.ED.);

(b) For teachers of the secondary schools, Bachelor's degree in Education or its equivalent with a major and a minor; or a Bachelor's degree in Arts or Science with at least eighteen professional units in Education.

(c) For teachers of secondary vocational and two years technical courses, Bachelor's degree in the field of specialization with at least eighteen professional units in education;

(d) For teachers of courses on the collegiate level, other than vocational, master's degree with a specific area of specialization;

Provided, further, That in the absence of applicants who possess the minimum educational qualifications as hereinabove provided, the school superintendent may appoint, under a temporary status, applicants who do not meet the minimum qualifications: Provided, further, That should teacher-applicants, whether they possess the minimum educational qualifications or not, be required to take competitive examinations, preference in making appointments shall be in the order of their respective ranks in said competitive examinations: And provided, finally, That the results of the examinations shall be made public and every applicant shall be furnished with his score and rank in said examinations.

Sec. 4. Probationary Period. When recruitment takes place after adequate training and professional preparation in any school recognized by the Government, no probationary period preceding regular appointment shall be imposed if the teacher possesses the appropriate civil service eligibility: Provided, however, That where, due to the exigencies of the service, it is necessary to employ as teacher a person who possesses the minimum educational qualifications herein above set forth but lacks the appropriate civil service eligibility, such person shall be appointed on a provisional status and shall undergo a period of probation for not less than one year from and after the date of his provisional appointment.

Sec. 5. Tenure of Office. Stability on employment and security of tenure shall be assured the teachers as provided under existing laws.

Subject to the provisions of Section three hereof, teachers appointed on a provisional status for lack of necessary civil service eligibility shall be extended permanent appointment for the position he is holding after having rendered at least ten years of continuous, efficient and faithful service in such position.

Sec. 6. Consent for Transfer Transportation Expenses. Except for cause and as herein otherwise provided, no teacher shall be transferred without his consent from one station to another.

Where the exigencies of the service require the transfer of a teacher from one station to another, such transfer may be effected by the school superintendent who shall previously notify the teacher concerned of the transfer and the reason or reasons therefor. If the teacher believes there is no justification for the transfer, he may appeal his case to the Director of Public Schools or the Director of Vocational Education, as the case may be. Pending his appeal and the decision thereon, his transfer shall be held in abeyance: Provided, however, That no transfers whatever shall be made three months before any local or national election.

Necessary transfer expenses of the teacher and his family shall be paid for by the Government if his transfer is finally approved.

Sec. 7. Code of Professional Conduct for Teachers. Within six months from the approval of this Act, the Secretary of Education shall formulate and prepare a Code of Professional Conduct for Public School Teachers. A copy of the Code shall be furnished each teacher: Provided, however, That where this is not possible by reason of inadequate fiscal resources of the Department of Education, at least three copies of the same Code shall be deposited with the office of the school principal or head teacher where they may be accessible for use by the teachers.

Sec. 8. Safeguards in Disciplinary Procedure. Every teacher shall enjoy equitable safeguards at each stage of any disciplinary procedure and shall have:

a. the right to be informed, in writing, of the charges;

b. the right to full access to the evidence in the case;

c. the right to defend himself and to be defended by a representative of his choice and/or by his organization, adequate time being given to the teacher for the preparation of his defense; and

d. the right to appeal to clearly designated authorities.

No publicity shall be given to any disciplinary action being taken against a teacher during the pendency of his case.

Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teacher's organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from the termination of the hearings:Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education.

Sec. 10. No Discrimination. There shall be no discrimination whatsoever in entrance to the teaching profession, or during its exercise, or in the termination of services, based on other than professional consideration.

Sec. 11. Married Teachers. Whenever possible, the proper authorities shall take all steps to enable married couples, both of whom are public school teachers, to be employed in the same locality.

Sec. 12. Academic Freedom. Teachers shall enjoy academic freedom in the discharge of their professional duties, particularly with regard to teaching and classroom methods.

III. HOURS OF WORK AND REMUNERATION

Sec. 13. Teaching Hours. Any teacher engaged in actual classroom instruction shall not be required to render more than six hours of actual classroom teaching a day, which shall be so scheduled as to give him time for the preparation and correction of exercises and other work incidental to his normal teaching duties: Provided,however, That where the exigencies of the service so require, any teacher may be required to render more than six hours but not exceeding eight hours of actual classroom teaching a day upon payment of additional compensation at the same rate as his regular remuneration plus at least twenty-five per cent of his basic pay.

Sec. 14. Additional Compensation. Notwithstanding any provision of existing law to the contrary, co-curricula and out of school activities and any other activities outside of what is defined as normal duties of any teacher shall be paid an additional compensation of at least twenty-five per cent of his regular remuneration after the teacher has completed at least six hours of actual classroom teaching a day.

In the case of other teachers or school officials not engaged in actual classroom instruction, any work performed in excess of eight hours a day shall be paid an additional compensation of at least twenty-five per cent of their regular remuneration.

The agencies utilizing the services of teachers shall pay the additional compensation required under this section. Education authorities shall refuse to allow the rendition of services of teachers for other government agencies without the assurance that the teachers shall be paid the remuneration provided for under this section.

Sec. 15. Criteria for Salaries. Teacher's salaries shall correspond to the following criteria:

(a) they shall compare favorably with those paid in other occupations requiring equivalent or similar qualifications, training and abilities;

(b) they shall be such as to insure teachers a reasonable standard of life for themselves and their families; and

(c) they shall be properly graded so as to recognize the fact that certain positions require higher qualifications and greater responsibility than others: Provided, however, That the general salary scale shall be such that the relation between the lowest and highest salaries paid in the profession will be of reasonable order. Narrowing of the salary scale shall be achieved by raising the lower end of the salary scales relative to the upper end.

Sec. 16. Salary Scale. Salary scales of teachers shall provide for a gradual progression from a minimum to a maximum salary by means of regular increments, granted automatically after three years: Provided, That the efficiency rating of the teacher concerned is at least satisfactory. The progression from the minimum to the maximum of the salary scale shall not extend over a period of ten years.

Sec. 17. Equality in Salary Scales. The salary scales of teachers whose salaries are appropriated by a city, municipal, municipal district, or provincial government, shall not be less than those provided for teachers of the National Government.

Sec. 18. Cost of Living Allowance. Teacher's salaries shall, at the very least, keep pace with the rise in the cost of living by the payment of a cost-of-living allowance which shall automatically follow changes in a cost-of-living index. The Secretary of Education shall, in consultation with the proper government entities, recommend to Congress, at least annually, the appropriation of the necessary funds for the cost-of-living allowances of teachers employed by the National Government. The determination of the cost-of-living allowances by the Secretary of Education shall, upon approval of the President of the Philippines, be binding on the city, municipal or provincial government, for the purposes of calculating the cost-of-living allowances of teachers under its employ.

Sec. 19. Special Hardship Allowances. In areas in which teachers are exposed to hardship such as difficulty in commuting to the place of work or other hazards peculiar to the place of employment, as determined by the Secretary of Education, they shall be compensated special hardship allowances equivalent to at least twenty-five per cent of their monthly salary.

Sec. 20. Salaries to be Paid in Legal Tender. Salaries of teachers shall be paid in legal tender of the Philippines or its equivalent in checks or treasury warrants. Provided, however, That such checks or treasury warrants shall be cashable in any national, provincial, city or municipal treasurer's office or any banking institutions operating under the laws of the Republic of the Philippines.

Sec. 21. Deductions Prohibited. No person shall make any deduction whatsoever from the salaries of teachers except under specific authority of law authorizing such deductions: Provided, however, That upon written authority executed by the teacher concerned, (1) lawful dues and fees owing to the Philippine Public School Teachers Association, and (2) premiums properly due on insurance policies, shall be considered deductible.

IV. HEALTH MEASURES AND INJURY BENEFITS

Sec. 22. Medical Examination and Treatment. Compulsory medical examination shall be provided free of charge for all teachers before they take up teaching, and shall be repeated not less than once a year during the teacher's professional life. Where medical

examination show that medical treatment and/or hospitalization is necessary, same shall be provided free by the government entity paying the salary of the teachers.

In regions where there is scarcity of medical facilities, teachers may obtain elsewhere the necessary medical care with the right to be reimbursed for their traveling expenses by the government entity concerned in the first paragraph of this Section.

Sec. 23. Compensation For Injuries. Teachers shall be protected against the consequences of employment injuries in accordance with existing laws. The effects of the physical and nervous strain on the teacher's health shall be recognized as a compensable occupational disease in accordance with existing laws.

V. LEAVE AND RETIREMENT BENEFITS

Sec. 24. Study Leave. In addition to the leave privileges now enjoyed by teachers in the public schools, they shall be entitled to study leave not exceeding one school year after seven years of service. Such leave shall be granted in accordance with a schedule set by the Department of Education. During the period of such leave, the teachers shall be entitled to at least sixty per cent of their monthly salary: Provided, however, That no teacher shall be allowed to accumulate more than one year study leave, unless he needs an additional semester to finish his thesis for a graduate study in education or allied courses: Provided, further, That no compensation shall be due the teacher after the first year of such leave. In all cases, the study leave period shall be counted for seniority and pension purposes.

The compensation allowed for one year study leave as herein provided shall be subject to the condition that the teacher takes the regular study load and passes at least seventy-five per cent of his courses. Study leave of more than one year may be permitted by the Secretary of Education but without compensation.

Sec. 25. Indefinite Leave. An indefinite sick leave of absence shall be granted to teachers when the nature of the illness demands a long treatment that will exceed one year at the least.

Sec. 26. Salary Increase upon Retirement. Public school teachers having fulfilled the age and service requirements of the applicable retirement laws shall be given one range salary raise upon retirement, which shall be the basis of the computation of the lump sum of the retirement pay and the monthly benefits thereafter.

VI. TEACHER'S ORGANIZATION

Sec. 27. Freedom to Organize. Public school teachers shall have the right to freely and without previous authorization both to establish and to join organizations of their choosing, whether local or national to further and defend their interests.

Sec. 28. Discrimination Against Teachers Prohibited. The rights established in the immediately preceding Section shall be exercised without any interference or coercion. It shall be unlawful for any person to commit any acts of discrimination against teachers which are calculated to (a) make the employment of a teacher subject to the condition that he shall not join an organization, or shall relinquish membership in an organization,

(b) to cause the dismissal of or otherwise prejudice a teacher by reason of his membership in an organization or because of participation in organization activities outside school hours, or with the consent of the proper school authorities, within school hours, and (c) to prevent him from carrying out the duties laid upon him by his position in the organization, or to penalize him for an action undertaken in that capacity.

Sec. 29. National Teacher's Organizations. National teachers' organizations shall be consulted in the formulation of national educational policies and professional standards, and in the formulation of national policies governing the social security of the teachers.

VII. ADMINISTRATION AND ENFORCEMENT

Sec. 30. Rules and Regulations. The Secretary of Education shall formulate and prepare the necessary rules and regulations to implement the provisions of this Act. Rules and regulations issued pursuant to this Section shall take effect thirty days after publication in a newspaper of general circulation and by such other means as the Secretary of Education deems reasonably sufficient to give interested parties general notice of such issuance.

Sec. 31. Budgetary Estimates. The Secretary of Education shall submit to Congress annually the necessary budgetary estimates to implement the provisions of the Act concerning the benefits herein granted to public school teachers under the employ of the National Government.

Sec. 32. Penal Provision. A person who shall willfully interfere with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court.

If the offender is a public official, the court shall order his dismissal from the Government service.

Sec. 33. Repealing Clause. All Acts or parts of Acts, executive orders and their implementing rules inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly.

Sec. 34. Separability Clause. If any provision of this Act is declared invalid, the remainder of this Act or any

provisions not affected thereby shall remain in force and in effect.

Sec. 35. This Act shall take effect upon its approval.

Approved: June 18, 1966