2ND EXAM COVERAGE CASE COMPILATION

PUBLIC OFFICERS and CORPORATIONS (Atty. Rodolfo Elman)2ND EXAM COVERAGE CASE COMPILATION

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ORTIZ v. COMELECRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 78957 June 28, 1988MARIO D. ORTIZ,petitioner,vs.COMMISSION ON ELECTIONS and COMMISSION ON AUDIT,respondents.FERNAN,J.:In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official whose "courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom Constitution may be entitled to retirement benefits under Republic Act No. 1568, as amended.Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then President Ferdinand E. Marcos "for a term expiring May 17, 1992."1He took his oath of office on July 30, 1985.On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro, petitioner sent President Corazon C. Aquino a letter which reads as follows:The undersigned Commissioners were appointed to the Commission on Elections on July 30, 1985.Following the example of Honorable Justices of the Supreme Court, on the premise that we have now a revolutionary government, we hereby place our position at your disposal.2Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through Proclamation No. 3, Artide III thereof provides:SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption.SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.SEC. 3. Any public officer or employee separated from the service as a result of the reorganization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder.On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and Commissioners Froilan M. Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein), Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364 approving the application for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven days later, the same body passed Resolution No. 862370 approving the application for retirement of Commissioner Mangontawar B. Guro.On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their respectiveresignations,effective immediately."3After the presidential acceptance of said "resignations," the new COMELEC was composed of Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B. Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this body that Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications forretirement. They were followed by Commissioner Layosa on August 1, 1986.To justify their petitions for retirement and their requests for payment of retirement benefits, all seven former COMELEC Commissioners invoked Republic Act No. l568 as amended by Republic Act No. 3595 and re-enacted by Republic Act No. 6118, specifically the following provision:SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement incapacity, death or resignation, as the case may be:Provided,That in case of resignation, he has rendered not less than twenty years of service in the government; Andprovided, further,That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation.In itsen bancResolution No. 86-2491*of August 13, 19864the COMELEC revoked Resolutions Nos. 86-2364 dated April 16, 1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz and Layosa on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as amended" without specifying the reason therefor.5Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to the benefits under Republic Act No. 1568, as amended. He averred therein that he did not resign but simply placed his position at the disposal of the President; that he had in fact completed his term as Commissioner by the "change in the term of [his] office and eventual replacement," and that he was entitled to retirement benefits under the aforementioned law because Article 1186 of the Civil Code which states that "the condition [with regard to an obligation] shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment." He invoked the aforequoted provisions of Proclamation No. 3 and cited the cases of former Chief Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr. who were allowed to retire by this Court and receive retirement benefits.6Petitioner's letter/motion for reconsideration was denied by the COMELEC in itsen bancresolution of October 1, 1986.**On December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit [COA]. In its memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for comment and recommendation. Having failed to receive any communication from the COA for some six months, on June 3, 1987, petitioner reiterated his appeal thereto. Again, the matter was referred to the COMELEC resident auditor with a request for immediate action thereon.A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the COMELEC's "arbitrary and unjust denial" of his claim for retirement benefits and of his subsequent motion for reconsideration constitutes "grave and whimsical abuse of discretion amounting to lack of jurisdiction" which can only be remedied through the instant petition in the absence of an appeal or any plain, speedy and adequate remedy.7In his memorandum, however, petitioner admits that, as correctly stated by the Solicitor General in respondents' comment on the petition, this petition is basically one for a writ of mandamus aimed at compelling both the COMELEC and the COA to approve his claim for retirement benefits.8We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding the Solicitor General's contention that action herein is premature as the COA may yet render a decision favorable to the petitioner, We opt to decide this case to shed light on the legal issue presented.The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office, and, therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement benefits.9We disagree. Petitioner's separation from government service as a result of the reorganization ordained by the then nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it.10To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of relinquishment.11Resignation implies an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful authority.12From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25,1986 when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in public administration.Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power.A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional officials like the petitioner whose removal from office entails an impeachment proceeding.13For even if working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal rights as those in reputation and eligibility for other employment.14The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no removal but an expiration of his term.15As he is deemed to have completed his term of office, petitioner should be considered retired from the service. And, in the absence of proof that he has been found guilty of malfeasance or misfeasance in office or that there is a pending administrative case against him, petitioner is entitled to a life pension under Republic Act No. 1568 as amended and reenacted by Republic Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically Article III, Section 3 thereof which was in effect when he was replaced by the appointment and qualification of a new Commissioner.Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services performed and his right thereto commences to vest upon his entry into the retirement system and becomes an enforceable obligation in court upon fulfillment of all conditions under which it is to be paid.16Similarly, retirement benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in public employment.17They serve a public purpose and a primary objective in establishing them is to induce able persons to enter and remain in public employment, and to render faithful and efficient service while so employed.18Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than twenty years of service in the government at the time of the retirement, death or resignation of the Auditor General or the Chairman and any Member of the COMELEC. The same length of service was required after Republic Act No. 3473 amended the law. However, Republic Act No. 3595 further amended Republic Act No. 1568 and the 20-year service requirement was mandated only in case of resignation of the public official covered by the law. Although Republic Act No. 1568, as amended, was inoperative and abolished in Section 9 of Republic Act No. 4968, it was re-enacted under Republic Act No. 6118.On the respondents' assertion that the retirement law is clear and hence, there is no room for its interpretation, We reiterate the basic principle that, being remedial in character, a statute creating pensions should be liberally construed and administered in favor of the persons intended to be benefited thereby.19This is as it should be because the liberal approach aims to achieve the humanitarian purposes of the law in order that the efficiency, security, and well-being of government employees may be enhanced.20WHEREFORE, respondent Commission on Elections denial of petitioner's application for retirement benefits is hereby reversed and set aside. The Commission on Audit and other public offices concerned are directed to facilitate the processing and payment of petitioner's retirement benefits.SO ORDERED.

COLLANTES v. CSC and DNDRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. 169604 March 6, 2007NELSON P. COLLANTES,Petitioner,vs.HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION and DEPARTMENT OF NATIONAL DEFENSE,Respondents.D E C I S I O NCHICO-NAZARIO,J.:A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that rendered it or by the highest court in the land.1What would happen, however, if two separate decisions, irreconcilably conflicting with each other, both attained finality? Quite clearly, to hold that both decisions are immutable and unalterable would cause not only confusion and uncertainty, but utter bewilderment upon the persons tasked to execute these judgments.This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision2dated 10 March 2005 and the Resolution3dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No. 78092.The undisputed facts of this case are summarized by the Court of Appeals:Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive Service Eligibility on 29 February 1996. Then President Fidel V. Ramos accorded him the rank of Career Executive Service Officer (CESO) II on 10 February 1997. More than a year later, he was appointed as Undersecretary for Peace and Order of the Department of Interior and Local Government (DILG).With the change of administration, Collantes allegedly received word from persons close to then President Ejercito Estrada to give up his position so that the President could unreservedly appoint his key officials. As such, Collantes relinquished his post at the DILG.Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial post Undersecretary for Civilian Relations of the Department of National Defense (DND). As it happened, his stint in the DND was short lived. Collantes was supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor of another presidential appointee, General Orlando Soriano. In deference to the Presidents prerogative, he resigned from office believing that he will soon be given a new assignment.Unfortunately, Collantes was not given any other post in the government, as in fact, he received a letter from President Estrada terminating his services effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested the assistance of the Career Executive Service Board relative to the termination of his services as Undersecretary for Civilian Relations of the DND invoking his right to security of tenure as a CESO.The termination of Collantes services, notwithstanding, President Estrada accorded Collantes the highest rank in the CES ranking structure, CESO Rank I, on 17 July 1999. But then, despite this promotion in rank, Collantes did not receive new appointment, and worse, the President appointed Mr. Edgardo Batenga to the much coveted position of Undersecretary for Civilian Relations of the DND.Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP NO. 62874. Collantes maintained that he was constructively dismissed from work, without any cause and due process of law, and thus, his position in the DND was never vacated at all. Accordingly, he prayed that the appointment of Mr. Edgardo Batenga be nullified, and that he be reinstated to his former position with full back salaries. Notably, Collantes also sought for appointment to a position of equivalent rank commensurate to his CESO Rank I if reinstatement to his former position is no longer legally feasible.Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-request issuing Resolution No. 011364, and thereby holding that Collantes relief as Undersecretary of DND amounted to illegal dismissal as he was not given another post concomitant to his eligibility.Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 dismissing the Petition for Quo Warranto and Mandamus filed by Collantes. Significantly, We pronounced:"By such actuations of the petitioner, the Court finds that he has (sic) effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position.x x x x"In this case, petitioner has undoubtedly shown his intention to relinquish his public office, and has in fact surrendered such post to the Chief Executive, who, on the other hand, has shown his acceptance of the same by appointing a new person to the position relinquished by the petitioner.x x x xQuo warranto, it must be pointed out, is unavailing in the instatnt case, as the public office in question has not been usurped, intruded into or unlawfully held by the present occupant. Nor does the incumbent undersecretary appear to have done or suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of Civil Procedure). Furthermore, it appears that the action for quo warranto, assuming it is available, has already lapsed by prescription, pursuant to Section 11 of the pertinent Rule ...x x x xWHEREFORE, premises considered, the instant petition for Quo Warranto and Mandamus is hereby DISMISSED."The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless, the case was considered closed and terminated when Collantes manifested his desire not to pursue his appeal and withdraw his Petition for Review on Certiorari. Thereafter, Collantes moved for the execution of CSC Resolution No. 011364, which was accordingly granted through CSC Resolution No. 020084 dated 15 January 2002 "directing the DND to give Collantes a position where his eligibility is appropriate and to pay his backwages and other benefits from the time of his termination up to his actual reinstatement."In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874, which has attained finality pursuant to the Supreme Courts Resolution in G.R. No. 149883.Consequently, in complete turnabout from its previous stance, the CSC issued Resolution No. 021482 dated 12 November 2002 declaring that had it been properly informed that a Petition for Quo Warranto and Mandamus was then pending before Us, it would have refrained from ruling on Collantes quandary, thus:"WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal Affairs Leticia A. Gloria of the department of National Defense (DND) is hereby GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084 dated January 15, 2002 are reversed. Accordingly, pursuant to the decision of the Court of Appeals, Nelson P. Collantes is deemed effectively resigned from his position as Undersecretary of the DND."Forthwith, Collantes moved for a reconsideration of this Resolution, but was denied by the CSC in the second assailed Resolution No. 030542 dated 5 May 2003.4On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari with the Court of Appeals praying for the reversal of the Civil Service Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of Appeals can decide this case, however, petitioner was appointed as General Manager of the Philippine Retirement Authority on 5 August 2004. The Court of Appeals dismissed the Petition for Certiorari in the assailed 10 March 2005 Decision:WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse of discretion may be imputed against the Civil Service Commission for rendering Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003, respectively. No pronouncement as to costs.5The Motion for Reconsideration filed by petitioner was denied in the assailed 31 August 2005 Resolution.6Petitioner filed the present Petition for Review, seeking the reversal of the foregoing Decision and Resolution of the Court of Appeals. In view of his 5 August 2004 appointment, however, petitioners prayer is now limited to seeking the payment of backwages and other benefits that may have been due him from the time of his alleged dismissal on 8 February 1999 to his appointment on 5 August 2004. Petitioner submits the following issues for our consideration:A.WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R. NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE COMMISSION DATED AUGUST 14, 2001.B.WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY AND IN FLAGRANT VIOLATION OF PETITIONERS RIGHT TO DUE PROCESS.C.WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.7Both petitioner and herein respondents CSC and Department of National Defense (DND) invoke the doctrine of immutability of final judgments.Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that petitioner "was illegally removed as Undersecretary of the Department of National Defense and therefore x x x should be given a position where his eligibility is appropriate or sufficient," has attained finality. Petitioner adds that, not only has there been no appeal or motion for reconsideration filed within the allowable periods, the CSC even granted the Motion for Execution filed by petitioner in its Order dated 15 January 2002. Petitioner thereby invokes our ruling that, before a writ of execution may issue, there must necessarily be a final judgment or order that disposes of the action or proceeding.8Petitioner also faults the CSC for ruling on a mere letter filed by Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for failure to comply with the procedural due process clause of the Constitution, the Rules of Court, and the Uniform Rules in Administrative Cases in the Civil Service which require notice to adverse parties.9Respondents, on the other hand, invoke the same doctrine of immutability of final judgments, this time with respect to the 30 August 2001 Decision of the Court of Appeals dismissing the Petition for Quo Warranto and Mandamus filed by petitioner. This Court of Appeals Decision became final and executory when petitioner withdrew the Motion for Extension to File a Petition for Review on Certiorari he filed with this Court.10Forum Shopping, Res Judicata, and Litis PendentiaOur rules on forum shopping are meant to prevent such eventualities as conflicting final decisions as in the case at bar. We have ruled that what is important in determining whether forum shopping exists or not is the vexation caused the courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issues.11More particularly, the elements of forum shopping are: (a) identity of parties or at least such parties as represent the same interests in both actions; (b) identity of the rights asserted and the reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.12Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).13If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.14Petitioner disputes respondents claim, and the CSCs ruling,15that he had lodged two separate actions. Petitioner explains that he never filed a case before the CSC. He merely sought the assistance of the Career Executive Service Board (CESB) in a letter-request dated 24 March 1999. Said letter-request, petitioner claims, did not ask for any ruling.Petitioner claims that, considering that two years had already lapsed without any response from the CESB, he filed on 23 January 2001 his Petition for Quo Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when he learned through the 8 February 2001 letter of the CESB that, on 29 November 2000, it referred petitioners request to the CSC for appropriate action.16Petitioner was not required to submit any pleading in support of his request. Apparently, the CSC treated the letter-request as a complaint or petition over which it could exercise its adjudicative powers, as it issued its 13 August 2001 Resolution declaring petitioner to have been illegally removed as Undersecretary of the DND, and should therefore be given a position appropriate or sufficient for his eligibility.17As stated above, the Court of Appeals Decision dismissing the Petition for Quo Warranto and Mandamus was rendered 17 days later, on 30 August 2001. Petitioner filed with this Court a motion for an extension of time within which to file a Petition for Review on Certiorari, but he later submitted a Manifestation for the withdrawal of this motion as he decided not to pursue his appeal.18Instead, petitioner filed with the CSC on 25 October 2001 a Motion for the Issuance of a Writ of Execution,19which the CSC granted on 15 January 2002.20In repeatedly asserting that he did not file two separate actions, petitioner is arguing, without stating it categorically, that he cannot be held liable for forum shopping. However, what one cannot do directly cannot be done indirectly. Petitioner had been aware, through the 8 February 2001 letter of the CESB, that his request for assistance was referred to the CSC on 29 November 2000 for appropriate action. From that point on, he knew that two government agencies the CSC and the Court of Appeals were simultaneously in the process of reaching their respective decisions on whether petitioner was entitled to reinstatement or to a position appropriate to his eligibility. Therefore, it cannot be denied that petitioner knew, from the moment of receipt of the 8 February 2001 letter of the CESB, that he had effectively instituted two separate cases, and whatever original intention he had for his letter-request is, by then, forgotten. Petitioner subsequently proceeded to act like a true forum shopper he abandoned the forum where he could not get a favorable judgment, and moved to execute the Resolution of the forum where he succeeded.Petitioners above actuation is, in fact, a violation of his certification against forum shopping with the Court of Appeals, a ground for dismissal of actions distinct from forum shopping itself. As petitioner knew from the receipt of the CESB letter that another claim was pending in a quasi-judicial agency concerning these issues, he was bound by his certification with the Court of Appeals to report such fact within five days from his knowledge thereof. This circumstance of being surprised by the discovery of another pending claim with another court or quasi-judicial agency is the very situation contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of the Rules of Court:Section 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. (Emphases supplied.)Petitioner, however, further asserts that the issues brought in the Petition for Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition for Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that the Decision of the Court of Appeals in the latter cannot constitute res judicata with respect to the former.21Petitioner claims that the issues, remedies and reliefs in the two cases are different, citing as basis the textbook definitions of quo warranto, certiorari and mandamus. Petitioner further claims that:There is a clear distinction between the right of petitioner to the position of Undersecretary for Civilian Relations and his right to be re-appointed to another position of equivalent rank, in view of his CESO I status. The former issue may have been resolved by the Court of Appeals when it ruled that petitioner Collantes had "effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position." The latter issue, or the right of petitioner Collantes to be given a new assignment fitting to his CESO I rank, arises from his right to security of tenure as a Career Executive Service Eligible, and not from his appointment to the DND.22This allegedly clear distinction springs from petitioners claim that he resigned from his position, but not from his rank as a Career Executive Service Officer (CESO). Petitioner claims that, as a CESO, there is a "great difference between (1) resigning from ones position and (2) resigning or relinquishing ones rank, as position is different from ones rank. POSITION refers to the particular or specific office from which one may be appointed. RANK, on the other hand, refers not to a particular position but to the class to which one belongs in the hierarchy of authority in an organization or bureaucracy."23Petitioner cites Cuevas v. Bacal24:[S]ecurity of tenure to members of the CES does not extend to the particular positions to which they may be appointed --- a concept which is applicable only to the first and second-level employees in the civil service --- but to the rank to which they are appointed by the President.x x x xMobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus the distinguishing feature of the Career Executive Service. x x x.and General v. Roco25:In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.While there is indeed a distinction between position and rank, such that a CESO may be transferred or reassigned from one position to another without losing his rank, there can be no distinction between resigning from a position and resigning from a rank. The rank of a CESO is deactivated upon separation from the government service, which includes the resignation of a CESO from his position. The CESB has clarified this concept of being in the inactive status in its Resolution No. 554, series of 2002:Rule IIx x x x7. CESO in Inactive Status - is a CESO who no longer occupies a position in the CES as a result of any of the modes of separation from the government service, provided that such separation is not due to dismissal from the service for cause.x x x xRule IVSection 1. Modes of Deactivating a CES Rank. There are three (3) modes by which the CES Rank of a CESO may be deactivated from the CES:1. Acceptance of a position by virtue of an appointment outside the coverage of the CES;2. Dropping from the rolls of government officials and employees; and3. Other modes of separation from the CES, provided that separation from the CES resulting from dismissal from the service for cause and after due process shall result in the loss of CES rank and shall not be considered as a mode of deactivation.x x x xSec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has been deactivated by the Board loses all the rights and privileges accorded to him/her by law on account of his/her CES rank.Likewise, it would be absurd for us to rule that a civil servant who resigns from his position can compel the President to appoint him to another position. Such a ruling would effectively derogate the discretion of the appointing authority,26as it will give the CESO the option to choose which position he or she wants, by the simple expediency of resigning from the position he or she does not want.In sum, there is an identity of issues in the two cases which resulted in the two conflicting final and executory decisions. But while, as stated above, the second petition can be dismissed on the ground of either res judicata or non-compliance with the undertakings in petitioners certification against forum shopping, these grounds can only be invoked when the case is still pending. As petitioner points out, the Resolution of the CSC had already become final and executory.The 30 August 2001 Decision of the Court of Appeals, however, has also attained finality. Hence, we go back to the main issue in this petition: which of the two final and executory decisions should be given effect, the 30 August 2001 Court of Appeals Decision dismissing the petitioners Petition for Quo Warranto, or the 13 August 2001 CSC Resolution declaring petitioner Collantes to be illegally removed as Undersecretary of the DND?Two Conflicting Final and Executory DecisionsJurisprudence in the United States offers different solutions to this problem:Where there have been two former actions in which the claim or demand, fact or matter sought to be religated has been decided contrarily, the rule that, where there is an estoppel against an estoppel, it "setteth the matter at large" has been applied by some authorities, and in such case both parties may assert their claims anew. Other authorities have held that, of two conflicting judgments on the same rights of the same parties, the one which is later in time will prevail, although it has also been held that the judgment prior in time will prevail. It has been held that a decision of a court of last resort is binding on the parties, although afterward, in another cause, a different principle was declared.27There are thus three solutions which we can adopt in resolving the case at bar: the first is for the parties to assert their claims anew, the second is to determine which judgment came first, and the third is to determine which of the judgments had been rendered by a court of last resort.As there are conflicting jurisprudence on the second solution, it is appropriate for this Court to adopt either the first or the third solution. The first solution involves disregarding the finality of the two previous judgments and allowing the parties to argue on the basis of the merits of the case anew. The third solution merely involves the determination of which judgment has been rendered by this Court, the court of last resort in this jurisdiction.Adopting the third solution will result in the denial of this Petition for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came about by the failure to file a motion for reconsideration or an appeal within the proper reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision was by virtue of the 12 November 2001 Resolution28of this Court which declared the case closed and terminated upon the manifestation of petitioner that he decided not to pursue his appeal and was thus withdrawing the motion for extension of time to file a petition for review on certiorari.The better solution, however, is to let the parties argue the merits of the case anew, and decide the case on the basis thereof. We can do this either by remanding the case to a lower court, or by resolving the issues in this disposition. The latter recourse is more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in support of the parties contentions are now before us, with the parties advancing the very same contentions as those in this Petition; (2) a remand to the Court of Appeals would entail asking the latter to resolve the very same issues it had passed upon twice; and (3) a remand to the Court of Appeals would only entail another unnecessary delay in the termination of the case when the case is now ripe for adjudication before us.The merits of the case are the focus of petitioners third assignment of error in the present petition. Petitioner claims that the Court of Appeals committed a grave and reversible error when it upheld the resolution of the CSC which allegedly effectively held "that petitioner may be removed from his position as Undersecretary of the Department of National Defense without the concomitant transfer to a position equivalent in rank or be removed then, be floated perpetually, which is tantamount to a constructive dismissal, in violation of his right to security of tenure as a career executive service eligible."29Petitioners arguments presuppose that he had been removed from his position as Undersecretary of the DND. He, however, did not present any evidence to that effect, whether in this Petition or in his earlier Petition for Quo Warranto and Mandamus with the Court of Appeals. If he is implying that he was removed from office by virtue of his account that he was approached by persons close to President Joseph Estrada who asked him to relinquish his post, which he did, then this Petition must fail, for, by his own deliberate deed, he resigned from his position.There are no special legal effects when a resignation is one of a courtesy resignation. The mere fact that the President, by himself or through another, requested for someones resignation does not give the President the obligation to appoint such person to another position. A courtesy resignation is just as effectual as any other resignation. There can be no implied promises of another position just because the resignation was made out of courtesy. Any express promise of another position, on the other hand, would be void, because there can be no derogation of the discretion of the appointing power,30and because its object is outside the commerce of man.31As held by the Court of Appeals in its 30 August 2001 Decision:In the first place, petitioner has not established by any quantum of certainty the veracity of his claim that he was promised an equivalent position in the government. Assuming, however, that such promise was true, petitioner, as a ranking member of the bureaucracy, ought to have known that such promise offers no assurance in law that the same would be complied with. The time-honored rule is that public office is a public trust, and as such, the same is governed by law, and cannot be made the subject of personal promises or negotiations by private persons.32WHEREFORE, the present Petition for Review on Certiorari is DENIED. No costs.SO ORDERED.

GONZALES v. ESCALONASECOND DIVISIONFELISA L. GONZALES,Complainant,- versus -Clerk of Court JOSEPH N. ESCALONA and Sheriff IV EDGAR V. SUPERADA,Respondents.A.M. No. P-03-1715(formerly IPI No. 00-908-P)

Promulgated

September 19, 2008

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

D E C I S I O N

BRION,J.:

This is a verified complaint forConduct Prejudicial to the Best Interest of the ServiceandGrave Misconductin connection with the enforcement of the writ of execution of the decision in Criminal Case No. 2150 (entitledPeople of the Philippines versus Paterno Makipig, Jr., for Reckless Imprudence Resulting in Homicide and Multiple Physical Injuries) filed with the Regional Trial Court (RTC), Branch 13, Carigara, Leyte.Respondent Atty. Joseph N. Escalona, now resigned, was the Branch Clerk of Court, while respondent Edgar V. Superada, now deceased, was the sheriff in the Office of the Clerk of Court of the same court.The complaint showed that in convicting the accused in Criminal CaseNo.2150,theRTCawardeddamagestocomplainant Felisa L. Gonzales in the amount ofP300,040.00 for the death of her son Bienvenido.The other victims were awarded damages in the total amount ofP29,020.00.The RTC issued a writ of execution directing respondent Superada to enforce the judgment.Since the accused was insolvent, the judgment was enforced against the accuseds employer, Serafica Enterprises (Serafica), owned and operated by Herminigildo Serafica who agreed to pay the damages awarded to the victims within a period of six months.The complainant alleged that even before the writ of execution was issued by the RTC, respondent Superada approached her and demanded the amount ofP27,500.00, allegedly for expenses in serving the writ.The complainant was able to give the respondent onlyP7,000.00.The complainant further alleged that without her consent, both respondents accepted from Serafica twenty-four (24) postdated checks of Land Bank-Ormoc City, each in the amount ofP13,710.85 (or a total ofP329,060.00) in payment of the damages awarded to the victims of the vehicular accident.All the checks were made payable to respondent Escalona.The first check was datedApril 7, 2000, while the last check was datedJanuary 31, 2002.When the first check was encashed, respondent Escalona deducted the amount ofP3,000.00 for sheriffs fees andP1,400.00 allegedly for the use of his car in going to and from the Land Bank branch office inOrmocCity.Upon encashment of the second check datedApril 17, 2000, respondent Escalona again deducted the same amounts ofP3,000.00 andP1,400.00.In his comment on the complaint, respondent Escalona denied the complainantsallegationsclaimingthathedid not instruct nor propose to Seraficathathe be made the payee of the postdated checks.It was Seraficas sole decision to make the checks payable to him. He had no ideawhy he was made the payee.Respondent Superada adopted his co-respondents comment.He further denied demanding the amount ofP27,500.00 from the complainant.He admitted, however, that he received the amount ofP7,000.00 after a conference was held among the accident victims; the latter all agreed to give this amount to defray the expenses for the apprehension of the accused.On the recommendation of then Deputy Court Administrator Zenaida N. Elepao (now retired Court Administrator), the complaint was referred to Executive Judge Lourdes G. Blanco of the RTC of Carigara,Leytefor investigation, report, and recommendation.As directed, Executive Judge Blanco conducted the investigation and set the case for hearing.In his Comment filed with the Investigating Judge, respondentEscalona contended that the complainants allegation that he twice demanded the amount ofP1,400.00, apparently implying bribery or extortion, is patently absurd and feeble concoction of truth.He never demanded these amounts for the use of his vehicle in going to the Land Bank inOrmocCitywhich is more than 54 kilometers away from his office.He claimed that he accepted these amounts from the complainant based on his agreement with the accident victims.He further averred that [h]ad undersigned been the private counsel for herein complainant, he could have demanded an amount more than five times than what they have [sic] given, considering the wear and tear, fuel, risks, and stress of travel.In his Memorandum submitted to the Investigating Judge, respondent Superada insisted that he should not be adjudged guilty of misconduct.He claimed that although he was the one who received the amount ofP7,000.00, his act ofreceivingitcannotbeconsideredasunlawfulashewasthe assigned executing sheriff who, under the circumstance, may advance for the prevailing party (the complainant) an amount for the expenses that may be incurred relevant to the execution of judgment.As to theP3,000.00 he received from complainant, respondent Superada maintained that he has a right to receive it as reimbursement for the expenses he had incurred during the execution of the writ.In her report submitted to the Court, the Investigating Judge found that respondent Superada failed to comply with the procedure laid down in Section 9, Rule 11 of the Rules of Court on the manner of implementing writs of execution.This section provides:[T]he party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriffs expenses in serving or executing the process or safeguarding the property levied upon, attached or seized including kilometrage for each kilometer of travel, guards fees, warehousing or similar charges, in an amount estimated by the sheriff subject to the approval of the court.Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court andex-officiosheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to litigation within the same period for rendering a return on the process.Any unspent amount shall be refunded to the party making the deposit.A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriffs expenses shall be fixed as costs against the judgment debtor.With respect to respondent Escalona, the Investigating Judge observed that if the checks were issued by the accuseds employer in his (Escalonas) name, and there was no other way to help the complainant, all that Atty. Escalona could have done was to arrange or advice the complainant to open an account with the Land Bank Tacloban City Branch so that he could have just endorsed the checks on the due date x x x.The checks could have also been issued to the complainant as payee to be released by Escalona on their due dates.Executive Judge Blanco, in her report submitted to this Court, recommended:1. That Atty. Joseph N. Escalona, Branch Clerk of Court, and Edgar V. Superada, Sheriff IV, RTC Branch 13, Carigara,Leyte, are found guilty of violating R.A. 3019 as amended.[1]However, considering that Atty. Joseph N. Escalona has resigned from the service even before the filing of this case, it is recommended that this be placed in his record as a member of the Philippine Bar.2. That Edgar V. Superada, Sheriff IV of RTC Branch 13, Carigara,Leytebe fined in the amount of Php 2,000.00 this being his first, with a warning that a similar violation will be dealt with more seriously.The evidence on record and the admissions made by both respondents in their comments filed with this Court and with the investigating court sufficiently establish their culpability.Guilt, however, for violation of Republic Act (R.A.) No. 3019, as amended, is beyond the Investigating Judges authority to determine and should be read merely as her view on what criminal offense the respondents may have violated if they were to be criminally prosecuted.Those connected with the dispensation of justice bear a heavy burden in the performance of their duties.Their positions demand a very high level of moral rectitude and uprightness.Clerks of Court, in particular, must be individuals of competence, honesty, and probity, charged as they are with safeguarding the integrity of the court and its proceedings.For that matter, thebehaviorofeveryoneconnectedwithanofficechargedwiththe dispensation of justice from the presiding judge to the lowliest clerk must always be beyond reproach. Like Caesars wife, they must not only be faithful to the responsibilities of their position and the propriety and decorum these entail; they must, above all, be above suspicion.Our laws are not lacking in providing guidance and mandates on the responsibilities of a public position and the burdens they impose on the office holder.Section 1 of Article XI of the 1987 Constitution declares that a public office is a public trust.It enjoins public officers and employees to serve with the highest degree of responsibility, integrity, loyalty and efficiency and, at all times, remain accountable to the people.[2]The Code of Conduct and Ethical Standards for Public Officers and Employees[3]sets out a policy towards promoting a high standard of ethical responsibility in the public service.[4]It enjoins those in the government service to extend prompt, courteous, and adequate service to the public, and at all times, to respect the rights of others and refrain from doing acts contrary to law, good morals and good customs, among other ideals.[5]Our examination of the records of the case tells us that there was connivance between the respondents on the manner of collecting and disbursing the amounts awarded to the accident victims so that they (the respondents) could personally benefit from the proceeds of the courts award.That their actions were concerted is plain from the manner they undertook the exactions; one took care of and complemented the other towards the same result a share in the complainants pie.Although both respondents denied that they instructed or proposed to the complainant or the paying employer that the 24 postdated checks be made payable to respondent Escalona, we stand unconvinced that that the respondents had no active hand in the arrangement.For one, why the checks were made payable to Escalona was not sufficiently explained.To be sure, to pay checks whose proceeds are intended for a specific recipient, to someone other than the intended recipient is far from usual,[6]and is an arrangement that has to be explained if the arrangement is claimed to be legitimate.No explanation from the respondents, however, came.We are simply asked to believe, perhaps on faith, that the arrangement simply came without the respondents active intervention.We cannot accept what amounts to a plain denial given the patent irregularities that attended the arrangement.Respondent Superada admits having received the amount ofP7,000.00,butexplainedthattheP7,000.00wasagreeduponbythe complainant and the other victims of the vehicular accident to defray the expenses for the apprehension of the accused.Why Superada, a court sheriff, would participate in the apprehension of the accused escapes us.Likewise, the excuse, even if legitimate, will not completely exculpate him as he is mandated to act within defined limits in the performance of his duties as sheriff, particularly on the matter of expenses.For him, good faith is not a defense as he is charged with the knowledge of what his proper conduct should be.As an officer of the court involved in the implementation of court decisions, he is bound to observe the Rules of Court faithfully, not use them for his personal ends; sheriffs must perform their duties by the book.[7]Charging any amount to litigants for his services without the approval of the court constitutes grave misconduct and conduct prejudicial to the best interest of the service.While allowed to collect sums to cover his expenses in the service of summons and writs of execution, he can only charge and collect with the approval of the court as providedfor in Section 9, Rule 141 of the Rules of Court.To do this by the book, an estimate has to be made of the projected expenses for approval by the court and the amounts paid should be deposited by the requesting party with the Clerk of Court andEx-OfficioSheriff who shall disburse the amount to the executing sheriff.The latter shall liquidate his expenses within the same period for rendering a return on the writ.[8]Any amount received by the sheriff in excess of the lawful fees allowed by the Rules of Court is an unlawful exaction that renders him liable for grave misconduct and gross dishonesty.[9]Moreover, any unspent amount must be refunded to the paying party, the failure to refund is again a violation.A misconduct is the violation of an established and definite rule of action, a forbidden act, a dereliction from duty, an unlawful behavior, willful in character, improper and wrong; while gross has been defined as out of all measure; beyond allowance; flagrant; shameful.[10]In short, it is a level of conduct that is not to be excused.In considering the present case, we are guided by the ruling of this Court inLetter of Atty. Socorro M. Villamer-Basilla, Clerk of Court V, Regional Trial Court, Branch 4, Legaspi City,[11]where we held that the sheriffs act of receiving an amount for expenses to be incurred in the execution of the writ is clearly proscribed by the rule.Whether the amount was advanced to him by the counsel for the plaintiffs or he offered to return the excess to the plaintiff is beside the point; his mere acceptance of the amount without the prior approval of the court and without him issuing a receipt therefor is clearly a misconduct in office.InDanao v. Franco, Jr.,[12]the Court ruled that the conduct of a sheriff in simply demanding from a party a particular sum without first furnishing her the estimate or detail of the expenses and without securing court approval is highly improper and erodes faith and confidence in the administration of justice; it brings the whole court to disrepute, and marks it as an institution to be approached warily and with caution.While both cited cases involved sheriffs, their rulings apply,mutatis mutandis, to respondent Escalona. Not only is he guilty of his own specific gross misconduct against the complainant, but also, as we explained above, we find him guilty of having acted in concert with the respondent Superada in fleecing the complainant of a part of her awarded damages.Under Section 23, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order 292, grave misconduct carries with it the penalty of dismissal from the service with forfeiture of retirement benefits except accrued leave credits, and perpetual disqualification for reemployment in government service.Respondent Escalona had already resigned from the service.His resignation, however, does not render this case moot, nor does it free him from liability.[13]In fact, the Court views respondentEscalonasresignation before the investigation as indication of his guilt, in the same way that flight by an accused in a criminal case is indicative of guilt.In short, his resignationwillnotbe a way out of the administrative liability he incurredwhile in the active service.[14]While we can no longer dismiss him, we can still impose a penalty sufficiently commensurate with the offense he committed.We treat respondent Superada no differently. While his death intervened after the completion of the investigation,it has been settled that the Court is not ousted of its jurisdiction over an administrative matter by the mere fact that the respondent public official ceases to hold office during the pendency of the respondents case;[15]jurisdiction once acquired, continues to exist until the final resolution of the case.[16]InLayao, Jr. v.Caube,[17]we held that the death of the respondent in an administrative case does not preclude a finding of administrative liability:This jurisdiction that was ours at the time of the filing of the administrative complainant was not lost by the mere fact that the respondent public official had ceased in office during the pendency of his case. The Court retains its jurisdiction either to pronounce the respondent public official innocent of the charges or declared him guilty thereof. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications ... If innocent, respondent public official merits vindication of his name and integrity as he leaves the government which hehasservedwelland faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.The above rule is not without exceptions, as we explained in the case ofLimliman v. Judge Ulat-Marrero,[18]where we said that death of the respondentnecessitatesthedismissaloftheadministrativecaseupona consideration of any of the following factors:first, the observance ofrespondent's right to due process;[19]second, the presence of exceptional circumstances in the case on the grounds of equitable and humanitarian reasons;[20]andthird, it may also depend on the kind of penalty imposed.[21]None of these exceptional considerations are present in the case.The dismissal of an administrative case against a deceased respondent on the ground of lack of due process is proper under the circumstances of a given case when, because of his death, the respondent can no longer defend himself.[22]Conversely, the resolution of the case may continue to its due resolution notwithstanding the death of the respondent if the latter has been given the opportunity to be heard, as in this case, or in instances where the continuance thereof will be more advantageous and beneficial to the respondent's heirs.[23]InJudicial Audit Report, Branches 21, 32 and 36,we recognized the dismissal of an administrative case by reason of the respondent's death for equitable and humanitarian considerations; the liability was incurred by reason of the respondents poor health.[24]We had occasion, too, to take into account the imposable administrative penalty in determining whether an administrative case should be continued.We observed in several cases that the penalty of fine could still be imposed notwithstanding the death of the respondent, enforceable against his or her estate.[25]From another perspective, administrative liability is separate and distinct from criminal and civil liability which are governed by a different set of rules.InFlecther v. Grinnel Bros., et. al,[26]the United States District Court of Michigan held that whether a cause of action survives the death of the person depends on the substance of the cause of action and not on the form of the proceeding to enforce it. Thus, unlike in a criminal case where the death of the accused extinguishes his liability arising thereon under Article 89 of the Revised Penal Code, or otherwise relieves him of both criminal and civil liability (arising from the offense) if death occurs before final judgment, the dismissal of an administrative case is not automatically terminated upon the respondent's death. The reason is one of law and public interest; a public office is a public trust that needs to be protected and safeguarded at all cost and even beyond the death of the public officer who has tarnished its integrity.Accordingly, we rule that the administrative proceedings is, by its very nature, not strictly personal so that the proceedings can proceed beyond the employees death, subject to the exceptional considerations we have mentioned above. This, conclusion is bolstered up bySexton v. Casida,[27]where the respondent, who in the meantime died, was found guilty of act unbecoming a public official and acts prejudicial to the best interest of the service, and fined Five Thousand Pesos (P5,000.00), deductible from his terminal leave pay.WHEREFORE, the Court finds both respondents guilty of gross misconductandconductprejudicialtothebestinterestoftheservice. Considering, however, that this is respondent Atty. Joseph N. Escalonas first administrativeoffense,we find the penalty of a fine ofP10,000.00 just and reasonable.With respect to respondent Sheriff Edgar V. Superada, tempering his liability with compassion in light of his untimely demise, he is imposed a fine ofP10,000.00.Both fines are to be taken from each of the respondents terminal leave pay.SO ORDERED.

GONZALES v. HERNANDEZRepublic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-15482 May 30, 1961GUILLERMO GONZALES,petitioner-appellant,vs.THE HON. JAIME HERNANDEZ, as Secretary of Finance and JOVENCIO FOJAS,respondents-appellants.Mario Bengzon for petitioner-appellant.Office of the Solicitor General for respondents-appellants.LABRADOR,J.:Appeal by both petitioner and respondents against a decision of the Court of First Instance of Manila, Hon. Carmelino Alvendia, presiding, in Special Civil Action No. 37553, entitled "Guillermo Gonzales, petitioner, versus the Hon. Jaime Hernandez, as Secretary of Finance and Jovencio Fojas, respondents." The dispositive part of said decision is as follows:WHEREFORE, the Court hereby declares the appointment of Atty. Jovencio Fojas as merely temporary in nature. The Court furthermore orders the respondent Secretary of Finance to terminate the appointment of Atty. Jovencio Fojas and to reinstate the petitioner Guillermo Gonzales to the position presently occupied by Atty. Fojas as attorney-agent of the Investigation and Secret Service Division of the Department of Finance, but without any right to salary until he is actually reinstated and only from the date of his reinstatement.Petitioner is not entitled to recover damages nor attorney's fees. No pronouncement as to costs. (Brief for the respondents, p. 8).On September 16, 1958, petitioner Guillermo Gonzales filed an action for mandamus andquo warrantowith the Court of First Instance of Manila seeking (a) to compel respondent Secretary of Finance to reinstate him to his former position as Attorney-Agent in the Department of Finance; (b) payment of back salaries from May 23, 1955 up to the time of reinstatement, excluding the salaries for two months of suspension in accordance with the decision of the Civil Service Board of Appeals; (c) the removal of respondent Jovencio Fojas as Attorney-Agent in the Department of Finance; (d) payment of P2,000 as attorney's fees; and (e) payment of costs of the suit. Respondents alleged the following special and affirmative defenses; petitioner's resignation from his position and his acceptance of another position in the Government Service Insurance system amounted to an abandonment of his right to reinstatement statement; Cabinet Resolution dated July 13, 1937 is inapplicable to the case at bar; the reinstatement of petitioner violates Executive Order No. 11 against nepotism because his wife is already employed in the same Department; and lastly, petitioner has not exhausted all administrative remedies. They therefore pray for the dismissal of the action.The case was submitted upon a stipulation of facts, rich reads as follows (unnecessary portions omitted):1. That petitioner was appointed in February 1954 an Attorney-agent of the Investigation and Secret Service Division, department of Finance, but in Administrative Case No. R-11119 instituted against him, he was found guilty of disreputable conduct prior to entering the service, and called upon to resign or be separated for cause as per decision of the Commissioner of Civil Service dated March 11, 1955;x x x x x x x x x2. That on May 23, 1955 petitioner filed with the Department of Finance a letter of resignation, the pertinent portion of which reads as follows:'. . . subject to the result of my appeal with the Civil Service Board of Appeals, and to the provisions of the Resolution of the Cabinet on July 17, 1939';x x x x x x x x x3. That petitioner's aforequoted tender resignation was accepted on May 28, 1955 as per a letter of the Undersecretary of Finance;x x x x x x x x x4. That petitioner appealed from the decision of the Commissioner of Civil Service . . . but did not formally notify respondent Secretary of Finance of the filing or pendency of the said appeal;5. That on November 15, 1955 petitioner's wife Lilia V. Gonzales was appointed to his former position, . . . . Said appointment automatically became permanent with six (6) months from and after November 15, 1955;6. That on July 1, 1957, petitioner's wife was promoted Economist Tax Researcher of the Department of Finance and respondent Jovencio Fojas, a member of the Philippine Bar was appointed to the position in turn vacated by her;7. That petitioner applied for and accepted an employment as emergency helper in the Government Service Insurance System at P6 per day and worked as such from August 6, 1956 until his services were terminated effective on July 24, 1957;8. That the Civil Service Board of Appeals, modified the decision of the Commissioner of Civil Service as per a decision dated August 5, 1957, the dispositive portion of which reads follows:"In view of the foregoing this Board feels justified in modifying the penalty imposed by the Commissioner of Civil Service and imposes upon the respondent a suspension of two months without pay. Considering, however that this decision of this Board that respondent, once reinstated to his former position, shall not be entitled to collect his salaries during the period of his suspension";x x x x x x x x x9. That the Civil Service Board of Appeals sent a copy of said decision to the Office of the Secretary of Finance on November 22, 1957; .10. That petitioner was notified and received a copy of the decision of the CSBA on January 17, 1958 and that forthwith on the following official day, January 20, 1958, petitioner went to the Department of Finance and informed in writing the Secretary of Finance thru the Administrative Officer, Geminiano Cabangon, Sr., that petitioner is reporting for duty the following day, January 21, 1958, . . .;11. That effectively on the following three successive days, i.e., January 21, 22 and 23, 1958, petitioner reported for duty . . .;x x x x x x x x x15. That the Commissioner of Civil Service ...; ruled among others, that petitioner is entitled as of right and should now be reinstated to his former position, and with respect to the filling of position by another pending final decision of his appeal by the CSBA, attention was invited to the Cabinet Resolution dated July 17, 1937; .16. That petitioner, in his letter of May 23, 1958 (Annex "E" of the petition) addressed to the Secretary of Finance, reiterated his request for reinstatement in view of the ruling made by the Commissioner of Civil Service; .17. That in view of petitioner's request for reinstatement, respondent Secretary of Finance sent a 2nd indorsement dated June 2, 1958 to the Civil Service Board of Appeals stating all the reasons why he could not reinstate petitioner and requesting clarification or an opinion in regards to petitioner's case, but the Board has not yet replied to said communication. Petitioner was furnished a signed copy of said indorsement of June 2, 1958, a true copy of which is attached as Annex "1" of respondent's answer. (pp. 32-35, record.)Upon the pleadings and the above stipulation of facts, the lower court rendered the decision appealed from. It declared that the Undersecretary of Finance had no right to treat petitioner's letter of conditional resignation as an absolute one, and held that the Undersecretary's unconditional acceptance of petitioner's conditional resignation is equivalent to a rejection of said resignation and petitioner's position did not become vacant thereby; that petitioner's acceptance of an emergency position in the Government Service Insurance System is not an abandonment of the position in question, as it is not incompatible with his claim for reinstatement that the appointment of respondent Fojas to the position of the petitioner is only temporary in nature, in accordance with Cabinet Resolution of July 13, 1937; that said Resolution is applicable to the case at bar, otherwise, in case like this the Secretary of Finance would have the power to negate the decision of the Civil Service Board of Appeals by issuing permanent appointment to another.From this decision, both the petitioner and the respondents have appealed. Petitioner appeals from the decision only insofar as it denies him payment of back salaries, attorney's fees and costs.The errors assigned by the Solicitor General may be resolved by determining the following questions, namely, (a) May the petitioner be considered validly resigned when his conditional resignation was unconditionally accepted by the Undersecretary of Finance? (b) Is petitioner deemed to have abandoned his position by accepting another position of emergency laborer in the GSIS?The first question should be resolved in the negative. In the first place, there is no resignation to speak of, because there is no intention on plaintiff's part to relinquish his position as attorney-agent in the Department of Finance. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position:. . . But to constitute a complete and operative resignation of public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment . . . . (43 Am. Jur. p. 22).. . . and a resignation implies an expression by the incumbent in some form, express or implied of the intention to surrender, renounce, or relinquish the office, and an acceptance by competent and lawful authority." (Nome v. Rice, 3 Alaska 602) (2 Bouvier's Law Dictionary, p. 2407)In the case at bar, plaintiff's resignation was made expressly "subject to result of my appeal to the Civil Service Board of Appeals, and to the provisions of the Resolution of the Cabinet on July 17, 1937." The decision of the Civil Service Board of Appeals modified that of the Commissioner of Civil Service, ordering plaintiff to be reinstated to his old position. There can not be any resignation to speak of therefore.The second question should also be resolved in the negative. Plaintiffs position in the GSIS was temporary in nature, during the period of an emergency only. He had the right to live during the pendency of his appeal and naturally the right to accept any form of employment. In any case as the court below found, this temporary employment is not incompatible with his old position; he could resign this temporary position any time as soon as his case has been definitely decided in his favor. To this effect is a previous ruling of the Court, thus:The fact that during the pendency of the petitioner's appeal in the Civil Service Board of Appeals, he worked as clerk in the office of the Provincial Treasurer of Leyte from 2 March 1951 to 17 February 1955 and received the salary as such in the total sum of P5,509.63 does not constitute abandonment of his former position. He was order to resign from the service with prejudice to reinstatement pursuant to the decision of the Commissioner of Civil Service and by virtue thereof was prevented from exercising the function of his position and receiving the corresponding compensation therefor. While thus deprived of his office and emoluments thereunto appertaining the petitioner had to find means to support himself and his family. The fact that during the time his appeal was pending and was thus deprived of his office and salary, he sought and found employment in another branch of the government does not constitute abandonment of his former position. . . . ." (Tan v. Gimenez, et al., G.R. No. L-12525, February 19, 1960; Potot v. Bagano, G.R. No. L-2456, January 25, 1949).Another objection against the petition is the fact that his wife is now employed in the same office. This objection can not lie against petitioner's reinstatement; the objection did not exist at the time of his original appointment. He was already employed before his wife was appointed. The objection does not lie, therefore, against his reinstatement; if it is to be applied at all it should be against his wife's appointment, not against his own.We now proceed to discuss the lone assignment of error of the plaintiff-appelle. Appellee is claiming back salaries attorney's fees and damages. His claim is devoid of merit.The law which allows payment of back salaries in cases like this is Section 260 of the Revised Administrative Code. A perusal of the decisions of this Court in cases similar to the case at bar, however, show that back salaries are ordered paid to an officer or an employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. In the case at bar, plaintiff was not completely exonerated, because although the decision of the Commissioner of Civil Service was modified and the plaintiff was allowed to be reinstated, the decision ordered him to forfeit two months pay and not to be given back salaries.In a statement filed before Us by counsel for petitioner-appellant, it is made to appear that respondent Jovito Fojas is no longer holding the item in question. This manifestation is not denied by the counsel for the respondents. However, there is no showing that said item, if already vacated by respondent Jovito Fojas, has been given to another, or has been eliminated from the Appropriations Act. There is, therefore, no impediment to petitioner's reinstatement.WHEREFORE, the decision appealed from is hereby affirmed in toto, without costs.

PAGANO v. NAZARROTHIRD DIVISIONESTHER S. PAGANO,Petitioner,-versus-JUAN NAZARRO, Jr., ROSALINE Q. ELAYDA, RODRIGO P. KITO and ERNESTO M. CELINO,Respondents.G.R. No. 149072

Promulgated:September 21, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - -xD E C I S I O NCHICO-NAZARIO,J.:This is a Petition for Review onCertiorariunder Rule 45 of the Rules of Court, assailing the Decision[1]dated7 March 2001, rendered by the Court of Appeals in CA-G.R. SP No. 53323.In reversing the Decision,[2]dated4 January 1999, rendered by Branch 10 of the Regional Trial Court of La Trinidad,Benguet, the Court of Appeals declared that the petitioner, Esther S.Pagano, may still be held administratively liable for dishonesty, grave misconduct andmalversationof public funds through falsification of official documents.While the petitioner was employed as Cashier IV of the Office of the Provincial Treasurer ofBenguet, it was discovered that in her accountabilities she had incurred a shortage ofP1,424,289.99.On12 January 1998, the Provincial Treasurer wrote a letter directing petitioner to explain why no administrative charge should be filed against her in connection with the cash shortage.[3]Petitioner submitted her explanation on15 January 1998.[4]On16 January 1998, petitioner filed her Certificate of Candidacy for the position of Councilor inBaguioCity.[5]On22 January 1998, the Office of the Provincial Governor ofBenguetfound the existence of aprima faciecase for dishonesty, grave misconduct andmalversationof public funds through falsification of official documents and directed the petitioner to file an answer.[6]The Provincial Governor also issued Executive Order No. 98-02, creating anad hoccommittee composed of herein respondents to investigate and submit findings relative to the administrative charges against petitioner.[7]On10 February 1998, petitioner filed her Answer before the Office of the Provincial Governor.Petitioner alleged that she had merely acted under the express direction of her supervisor, Mr. Mauricio B.Ambanloc.She further claimed that the funds and checks were deposited in the depository banks of theProvinceofBenguet, but the records are devoid of any documents to support her claim.[8]On19 February 1998, petitioner filed a motion to dismiss the administrative case on the ground that the committee created to investigate her case had no jurisdiction over the subject of the action and over her person.[9]The respondents denied the said motion on21 May 1998.[10]Petitioner filed a motion for reconsideration, which was again denied on1 July 1998.[11]On14 August 1998, petitioner filed a Petition forCertiorariand Prohibition with prayer for issuance of a Temporary Restraining Order and Writ of Preliminary Injunction before Branch 10 of the Regional Trial Court of La Trinidad,Benguet.The trial court issued a Writ of Preliminary Injunction on7 September 1998.[12]In the course of the audit and examination of the petitioners collection accounts, the Commission on Audit (COA) discovered that the petitioner was unable to account forP4,080,799.77, and not just the initial cash shortage ofP1,424,289.99.Thus, the COA Provincial Auditor,GetulioB. Santos, reported these findings to the Office of the Ombudsman in a letter dated11 September 1998with the recommendation that civil, criminal and administrative cases be filed against petitioner.[13]In its Decision, dated4 January 1999, the trial court ruled in favor of the petitioner.It noted that the most severe penalty which may be imposed on the petitioner is removal from service, and that under Section 66 of the Omnibus Election Code, petitioner was already deemed resigned when she filed her Certificate of Candidacy on16 January 1998.Section 66 of the Omnibus Election Code provides that:Any person holding a public appointive office or position, including active members of the Armed Forces of thePhilippines, and officers and employees in government-owned or controlled corporations, shall be consideredipso factoresigned from his office upon the filing of his certificate of candidacy.Thus, it declared that even if the committee created by the Provincial Governor had the jurisdiction to hear the administrative case against the petitioner, such case was now moot and academic.[14]Thedispositivepart of the said Decision reads:WHEREFORE, premises considered, judgment is hereby rendered in favor of petitioner EstherSisonPaganoand against herein respondents:1. Finding that the Committee of which the respondents are members has no longer jurisdiction to conduct any investigation or proceedings under civil service rules and regulations relative to the administrative case filed against the petitioner;2.Finding that the Committee has acted with grave abuse of discretion and without jurisdiction in denying the Motion to Dismiss filed by the petitioner in Administrative Case No. 98-01;3.Declaring as null and void all acts, orders, resolutions and proceedings of the Committee in Administrative Case No. 98-01;4. Ordering the respondents, their agents, representatives and all persons acting on their behalf, to desist from proceeding with Administrative Case No. 98-01; and5. Declaring the writ of preliminary injunction dated September 07, 1998 as permanent.No pronouncement as to costs.[15]Respondents filed an appeal before the Court of Appeals.In reversing the Decision of the trial court, the appellate court pronounced that even though petitioners separation from service already bars the imposition upon her of the severest administrative sanction of separation from service, other imposable accessory penalties such as disqualification to hold government office and forfeiture of benefits may still be imposed.[16]Petitioner filed a Motion for Reconsideration of the Decision of the Court of Appeals, which was denied in a Resolution dated 10 July 2001.[17]Hence, in the present Petition, the sole issue is being raised:WHETHER OR NOT A GOVERNMENT EMPLOYEE WHO HAS BEEN SEPARATED FROM THE CIVIL SERVICE BY OPERATION OF LAW PURSUANT TO SECTION 66 OF BATAS PAMBANSA BILANG 881 (THE OMNIBUS ELECTION CODE) MAY STILL BE ADMINISTRATIVELY CHARGED UNDER CIVIL SERVICE LAWS, RULES AND REGULATIONS[18]Petitioner argues that a government employee who has been separated from service, whether by voluntary resignation or by operation of law, can no longer be administratively charged.Such argument is devoid of merit.[19]InOffice of the Court Administrator v. Juan,[20]this Court categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against him.Resignation is not a way out to evade administrative liability when facing administrative sanction.The resignation of a public servant does not preclude the finding of any administrative liability to which he or she shall still be answerable.[21]A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case.[22]The instant case is not moot and academic, despite the petitioners separation from government service.Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits.Moreover, this Court views with suspicion the precipitate act of a government employee in effecting his or her separation from service, soon after an administrative case has been initiated against him or her.An employees act of tendering his or her resignation immediately after the discovery of the anomalous transaction is indicative of his or her guilt as flight in criminal cases.[23]In the present case, the Provincial Treasurer asked petitioner to explain the cash shortage ofP1,424,289.99, which was supposedly in her custody on12 January 1998.In her explanation, dated15 January 1998, petitioner failed to render a proper accounting of the amount that was placed in her custody; instead, she tried to shift the blame on her superior.Thus, the hasty filing of petitioners certificate of candidacy on 16 January 1998, a mere four days after the Provincial Treasurer asked her to explain irregularities in the exercise of her functions appears to be a mere ploy to escape administrative liability.Public service requires utmost integrity and discipline.A public servant must exhibit at all times the highest sense of honesty and integrity for no less than the Constitution mandates the principle that a public office is a public trust and all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.[24]The Courts cannot overemphasize the need for honesty and accountability in the acts of government officials.InBaquerfov. Sanchez,[25]this Court reproached a government employee for the theft of two unserviceable desk fans and one unserviceable stove.Moreover, the Court refused to take into account the subsequent resignation of the said government employee.In theaforecitedcase, this Court emphatically declared that:Cessation from office of respondent by resignation or retirement neither warrants the dismissal of the administrative complaint filed against him while he was still in the service nor does it render said administrative case moot and academic.The jurisdiction that was this Courts at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased in office during thependencyof his case.Respondents resignation does not preclude the finding of any administrative liability to which he shall still be answerable.[26]Unlike the previously discussed case (Baquerfo),the present one does not involve unserviceable scraps of appliances.The petitioner was unable to account for an amount initially computed atP1,424,289.99, and later recomputed by the COA atP4,080,799.77.With all the more reason, this Court cannot declare petitioner immune from administrative charges, by reason of her running for public office.In the very recent case,In re: Non-disclosure before the Judicial and Bar Council of the Administrative Case Filed Against Judge Jaime V.Quitain, in His Capacity as the then Assistant Regional Director of the National Police Commission, Regional Office XI,DavaoCity,[27]this Court pronounced the respondent judge guilty of grave misconduct, despite his resignation:Verily, the resignation of JudgeQuitainwhich was accepted by the Court without prejudice does not render moot and academic the instant administrative case.The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent acceptance without prejudice by this Court, has ceased to be in office during thependencyof this case.xxx.A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications.Indeed, if innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.This Court cannot countenance the petitioners puerile pretext that since no administrative case had been filed against her during her employment, she can no longer be administratively charged.Section 48, Chapter 6, Subtitle A, Title I, Book V of Executive Order No. 292, also known as the Administrative Code of 1987, provides for the initiation of administrative proceedings by the proper personalities as part of the procedural process in administrative cases:Section 48.Procedures in Administrative Cases Against Non-Presidential Appointees.(1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage ofP1,424,289.99 in her accountabilities.Moreover, she had already filed her answer.To all intents and purposes, the administrative proceedings had already been commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy.Petitioners bad faith was manifest when she filed it, fully knowing that administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation for an administrative case.To support her argument that government employees who have been separated can no longer be administratively charged, petitioner cites the following cases:Diamalonv.Quintillian,[28]Vda. deRecariov.Aquino,[29]Zamudiov.Penas, Jr.,[30]Pardov.Cunanan,[31]andMendoza v.Tiongson.[32]A piecemeal reference to these cases is too insubstantial to support the petitioners allegation that her separation from government service serves as a bar against the filing of an administrative case for acts she committed as an appointive government official.In order to understand the Courts pronouncement in these cases, they must be examined in their proper contexts.InDiamalonv