Pub Digest 9

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Lecaroz v Sandiganbayan

Facts:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of

thirteen (13) counts ofestafa through falsification of public documents.[1]They now seek a review of their

conviction as they insist on their innocence. Petitioner Francisco M. Lecaroz was the Municipal Mayor of

Santa Cruz, Marinduque, while his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of theKabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member

of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays. In the 1985 election for

the Kabataang Barangay Jowil Red[2]won as KB Chairman of Barangay Matalaba, Santa Cruz. Parenthetically,

Lenlie Lecaroz did not run as candidate in this electoral exercise as he was no longer qualified for the position

after having already passed the age limit fixed by law.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of

the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its

members,KagawadRogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed Red that he

could not yet sit as member of the municipal council until his appointment had been cleared by the Governor

of Marinduque. Nonetheless, the telegram was included in the agenda as one of the subjects discussed in the

meeting.

Red finally received his appointment papers sometime in January 1986.[4]But it was only on 23 April 1986,

when then President Corazon C. Aquino was already in power,[5]that he forwarded these documents to Mayor

Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the

Sanggunian. Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie

Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January

1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized

someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries

in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment

papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation

of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against MayorFrancisco Lecaroz and Lenlie Lecaroz

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime

in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the

expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to

be a member of the KB on the last Sunday of November 1985 and, as such, was no longer the legitimate

representative of the youth sector in the municipal council of Sta. Cruz, Marinduque.

The accused MAYOR's acts would fall under Art. 171, par. 4, ofThe Revised Penal Code which reads:

Art. 171. Falsification by public officer, employee or notaryor ecclesiastical minister. - The penalty of prision

mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary

public who, taking advantage of his official position, shall falsify a document by committing any of the

following acts: x x x x 4. Making untruthful statements in a narration of facts.x x x x

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from

the municipality to which he was not entitled for services he had admittedly not rendered. This constitutes

Estafa x x x x the deceit being the falsification made, and the prejudice being that caused to the municipality of

Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not entitled thereto.

Issue: WON petitioners are guilty

Held: No
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Ratio:

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction of

the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in

the Sanggunian as KB sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz

who was the incumbent KB representative could not hold over after his term expired because pertinent laws

do not provide for holdover.

1. The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did

not present an authenticated copy of his appointment papers; neither did he take a valid oath of

office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a

holdover capacity since his term had already expired. The Sandiganbayan however rejected this postulate

declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the KB, clearly

implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with

respect to positions in the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that

the office has a fixed term and the incumbent is holding onto the succeeding term.[6]It is usually provided by

law that officers elected or appointed for a fixed term shall remain in office not only for that term but until

their successors have been elected and qualified. Where this provision is found, the office does not becomevacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the

present incumbent will carry over until his successor is elected and qualified, even though it be beyond the

term fixed by law.[7]

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his

post after the expiration of his term in case his successor fails to qualify, it does not also say that he is

proscribed from holding over. Absent an express or implied constitutional or statutory provision to the

contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has

qualified.[8]The legislative intent of not allowing holdover must be clearly expressed or at least implied in the

legislative enactment,[9]otherwise it is reasonable to assume that the law-making body favors the same.

The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes in 1985 Red

validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should benoted however that under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI

thereof, members of the then Batasang Pambansa were not authorized to administer oaths. It was only after

the approval of RA No. 6733[14]on 25 July 1989 and its subsequent publication in a newspaper of general

circulation that members of both Houses of Congress were vested for the first time with the general authority

to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member

of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at

all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture

with the office.[15]Only when the public officer has satisfied the prerequisite of oath that his right to enter into

the position becomes plenary and complete. Until then, he has none at all. And for as long as he has not

qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that since Red never

qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in acarry over capacity, and was in every aspecta de jure officer,[16]or at least a de facto officer[17]entitled to

receive the salaries and all the emoluments appertaining to the position. As such, he could not be considered

an intruder and liable for encroachment of public office

2. On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e.,

estafa through falsification of public documents under Art. 171, par. 4, ofTheRevised Penal

Code, areintentional felonies for which liability attaches only when it is shown that the malefactors acted with

criminal intent or malice.[19]If what is proven is mere judgmental error on the part of the person committing

the act, no malice or criminal intent can be rightfully imputed to him
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the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of

petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to

Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc informing him of

his supposed appointment to the SB, together with a photocopy of a "Mass Appointment."

Second. It appears from the records that although Red received his appointment papers signed by PresidentMarcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during

which time President Marcos had already been deposed and President Aquino had already taken over the

helm of government.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents

Macapagal, Marcos and Aquino concerning the doctrine of holdover. This consistently expressed the view

espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of office in a

statute without an express prohibition against holdover is not indicative of a legislative intent to prohibit it,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the

community, would deliberately blemish his good name, and worse, involve his own son in a misconduct for a

measly sum of P23,675.00, such as this case before us. The rule is that any mistake on a doubtful or difficult

question of law may be the basis of good faith

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances

which purportedly indicated criminal intent. It pointed out that the name of accused Lenlie Lecaroz was not

in the municipal payroll for the firstquincena of 1986 which meant that his term had finally ended, and that

the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986

and thereafter for the next twelve and a half (12 -1/2) months was for no other purpose than to enable him to

draw salaries from the municipality.[29]There is however no evidence, documentary or otherwise, that Mayor

Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for the

firstquincena of January 1986. On the contrary, it is significant that while Lenlie Lecaroz' name did not

appear in the payroll for the firstquincena of January 1986, yet, in the payroll for the nextquincena accused

Lenlie Lecaroz was paid for both the first and second quincenas, and not merely for the second half of the

month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15)

days and then "reinstated" in the succeeding payroll period, as held by the courta quo.

3. Petitioners have been convicted for falsification of public documents through an untruthful narration of

facts under Art. 171, par. 4, ofThe Revised Penal Code. For the offense to be established, the following

elements must concur: (a) the offender makes in a document statements in a narration of facts; (b) the

offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender

are absolutely false; and, (d) the perversion of truth in the narration of facts was made with the wrongful

intent of injuring a third person.

The first and third elements of the offense have not been established in this case. In approving the payment

of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus - I hereby

certify on my official oath that the above payroll is correct, and that the services above stated have been duly

rendered. Payment for such services is also hereby approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but aconclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the

Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion undoubtedly

involving a legal matter, and any "misrepresentation" of this kind cannot constitute the crime of false

pretenses

The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as

the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not

entirely bereft of basis, anchored as it was on the universally accepted doctrine of holdover. La
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merainexactitude no es bastante para integrar este delito.[33]If the statements are not altogether false, there

being some colorable truth in them, the crime of falsification is deemed not to have been committed.

Republic v Singun

Facts:

-Singun was the former Chief Trade and Industry Development Specialist of DTI-RO2 of Cagayan Province. OnNovember 1999, he wrote to Regional Director Hipolito signifying his intention for a 8-month leave and

intention to retire on August the next year (after leave). He filed application for leave of absence and early

retirement but both were denied.

Singun reiterated application. This time, Director Hipolito endorsed the application to Assec Maglaya for

comment. HOWEVER, W/O WAITING FOR THE COMMENT, Singun filed an application for leave of absence for

a shorter period (2 months) and signified his INTENTION TO RESIGN effective the close of office hours of

January 2000. Director Hipolito APPROVED APPLICATION for LOA and resignation. Director Hipolito issued

memorandum containing approval and notified Regional Director of CSC of his acceptance to the resignation

-On January 14,, 2000 (date when resignation became effective), DTI-RO2 received through fax Memo Order

No. 20 detailing Singun to the Office of the Undersecretary for Regional Operations effective 17 January 2000.

Respondent then wrote to Director Hipolito stating that he was reconsidering his earlier letter of resignation

and decided to wait until he could qualify for early retirement.

Dir. Hipolito wrote to Atty. Soria for an opinion on WON Singun was considered resigned. Atty. Soria issued

an opinion wherein SINGUN WAS DEEMED TO HAVE EFFECTIVELY RESIGNED ON 14 JANUARY 2000:

(1) Singuns voluntary written notice informing Director Hipolito that he was relinqu ishing his position and

the effectivity date of said resignation and

(2) Director Hipolitos acceptance in writing which indicated the date of effectivity of the resignation.

Singuns letter of withdrawal of resignation DID NOT AUTOMATICALLY RESTORE HIM TO HIS POSITION,

still subject to approval of Dir. Hipolito.

-In accordance with this, Dir. Hipolito informed Undersec Ordonez that Singun had resigned 14 January 2000

so the detail was w/o effect. Singun has already accepted employment with Philippine Rural Banking

Corporation

Singun wrote to Undersec Ordonez, in effect saying that HE DID NOT RESIGN:

a. HIS APPLICATION FOR RESIGNATION WAS MADE UNDER DURESS, imposed by Director Hipolito as a

condition for the approval of his application for LOA.

b. He intended to resign August 2000 after completing 15 years of service

-Undersec Ordonez required Dir. Hipolito to comment on the letter and to show evidence that Singun

reveived a copy of Dir. Hipolitos acceptance in writing of Singuns letter of resignation. Dir Hipolito: No force,

intimidation, threat and undue pressure for Singun to resign. As to acceptance in writing, Singun was given a

copy of the Memo regarding the acceptance of the resignation.

CSC Regional Office: considered Singun as resigned because the detail order made no mention that issuance

meant acceptance of his resignation was revoked. Since Undersec Ordonez was not the appointing authority,

he had no power to accept Singuns withdrawal of resignation. Singun appealed to CSC

CSC: RESIGNATION INOPERATIVE AND INEFFICACIOUS. PAY SALARIES AND OTHER BENEFITS: Act of

Undersec Ordonez is a tacit, if not express, repudiation and revocation of the acceptance by the latter of the

supposed resignation of Singun. If ever tender of resignation accepted: acceptance inoperative and

inefficacious because THERE WAS NO SHOWING THAT SINGUN WAS DULY INFORMED OF ACCEPTANCE

MR, DENIED

CA: Deny appeal, affirm CSC: CSCs finding must be respected, as long as findings are supported by substantial

evidence. Act of resignation CANNOT BE PRESUMED BY RELYING ON MEMORANDA OR LETTERS MERELY
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SHOWING APPROVAL OF RESIGNATION, NO SHOWING OF CLEAR INTENTION TO SURRENDER.

NO ABANDONMENT: inconsistent with:

(1) motion for reconsideration of CSC-RO2s Opinion No. LO-000202,

(2) appeal questioning CSC-RO2s Decision No. A-000601, and

(3) bringing the matter to the National Office of the CSC for resolution.

No denial of due process on part of DTI, it had opportunity to explain side or to seek reconsideration.

ISSUE: WON there was complete and operative resignation

Held: NO.

Ratio:

No indication that Singun was duly informed of the acceptance of his resignation. The Final Act of a

Resignations Acceptance is the Notice of Acceptance. Resignation implies an expression of the incumbent in

some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the

acceptance by competent and lawful authority.

*complete and operative resignation from public office:

(a) an intention to relinquish a part of the term;

(b) an act of relinquishment; and

(c) an acceptance by the proper authority.

ACCEPTANCE: In our jurisdiction, acceptance is necessary for resignation of a public officer to be operative

and effective. Without acceptance, resignation is nothing and the officer remains in office. Resignation to be

effective must be accepted by competent authority, either in terms or by something tantamount to an

acceptance, such as the appointment of the successor. A public officer cannot abandon his office before his

resignation is accepted, otherwise the officer is subject to the penal provisions of Article 238 of the Revised

Penal Code. The final or conclusive act of a resignations acceptance is the notice of acceptance. The

incumbent official would not be in a position to determine the acceptance of his resignation unless he had

been duly notified therefor.

In this case, the Court of Appeals and the CSC declared that there was nothing in the records to show that

respondent was duly informed of the acceptance of his resignation. There was no indication that respondent

received a copy of his 12 November 1999 application for leave of absence and resignation as accepted by

Director Hipolito. Neither was there any indication that respondent received Director Hipolitos 12November 1999 Memorandum informing him of the acceptance of his resignation.

IN THIS CASE, Notice of approval of leave of absence does not necessarily mean the acceptance of resignation

Employment with PRBC was undertaken during an approved LOA so NO ABANDONMENT. Resignation may

be Withdrawn before its Acceptance: Until the resignation is accepted, the tender or offer to resign is

revocable. And the resignation is not effective where it was withdrawn before it was accepted.

IN THIS CASE: Since no valid notification of acceptance, Singun could validly withdraw his resignation. No

need for Dir. Hipolito to accept withdrawal since there was no valid acceptance of the application of

resignation in the first place. Detail Order by Undersec Ordonez also valid as there was no effective

resignation yet

Public Interest Center Inc. v Elma

Facts:

Elma was appointed as PCGG Chair Oct 1998. Later on he was appointed as Chief Presidential Legal Coumsel

CPLC (Jan 1999 during his term), but waived any remuneration that he may receive as CPLC. Supervening

events: Theres actually no more controversy involved: In 2001, Elma was replaced by Sabio as PCGG.

Nachura was then appointed as CPLC but pending resolution of the case, he was appointed SOLGEN.

Arguments: Public Interest Center

CLU vs. Exec Sec: Art IX-B, Sec 7, par2 and Art VII, Sec13 are violated by concurrent appointments

CPLC and PCGG Chair are incompatible offices


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Arguments: Elma

As interpreted in CLU vs. Exec Sec, the mentioned consti provisions dont cover other public officials given the

rank of Secretary, Undersecretary, or Assistant Secretary. His appointment falls under the exceptions in Art

IX-B, Sec7. The 2 positions are not incompatible

NOTE: even if issue already moot, SC still took cognizance of the case because the case is capable of repetition,and to serve as a guide to the bench.

LAWS: Art. VII, Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment

during their tenure. x x x

Art. IX-B, Section 7. No elective official shall be eligible for appointment or designation in any capacity to

anypublic office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold

any other office or employment in the Government or any subdivision, agency or instrumentality thereof,

including government-owned or controlled corporations or their subsidiaries.

Issue: whether the position of the PCGG Chairman or that of the CPLC falls under the prohibition against

multiple offices imposed by Section 7, par. 2, Article IX-B of the 1987 Constitution

Held: YES.

Ratio:

The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more

than one office only if allowed by law or by the primary functions of his position. In the case

ofQuimson v. Ozaeta,[12]this Court ruled that, [t]here is no legal objection to a government official occupying

two government offices and performing the functions of both as long as there is no incompatibility. The

crucial test in determining whether incompatibility exists between two offices was laid out in People v.

Green[13] - whether one office is subordinate to the other, in the sense that one office has the right to

interfere with the other.

[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where one office is

not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant,

there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of

the other. The force of the word, in its application to this matter is, that from the nature and relations to each

other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism

which would result in the attempt by one person to faithfully and impartially discharge the duties of one,

toward the incumbent of the other. x x x The offices must subordinate, one [over] the other, and they must,

per se, have the right to interfere, one with the other, before they are incompatible at common law. x x x

***In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The

duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of

various executive departments and agencies and to review investigations involving heads of executive

departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency

under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of theCPLC.

*note: Memorandum Order No. 152, issued on 9 July 2004 (provides that CPLC review Decision on

investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with the rank of

Secretary conducted by the Presidential Anti-Graft Commission (PAGC))

Issue: whether such appointments violate the other constitutional provision regarding multiple offices,

Section 13, Article VII of the 1987 Constitution.

Held: NO if based on position. YES if based on primary functions test.
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Ratio:

the strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the PCGG

Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if

the former may have the same rank as the latter positions.

*Review ulit CLU vs. Exec Sec: The language of Section 13, Article VII is a definite and unequivocal negation of

the privilege of holding multiple offices or employment. The Court cautiously allowed only two exceptions tothe rule against multiple offices:

(1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to

become a member of the Cabinet; or

(2) posts occupied by the Executive officials specified in Section 13, Article VII without additional

compensation in an ex-officio capacity as provided by law and as required by the primary functions of said

officials office.

The Court further qualified that additional duties must not only be closely related to, but must be required

by the officials primary functions. Moreover, the additional post must be exercised in an ex -officio capacity,

which denotes an act done in an official character, or as a consequence of office, and without any other

appointment or authority than that conferred by the office.[18] Thus, it will not suffice that no additional

compensation shall be received by virtue of the second appointment, it is mandatory that the second post is

required by the primary functions of the first appointment and is exercised in an ex-officio capacity.

*Even Section 13, Article VII does not sanction this dual appointment. Appointment to the position of PCGG

Chairman is not required by the primary functions of the CPLC, and vice versa.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent Elma

since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant secretary.

Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent Elma, he still

could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was

occupied by him in an ex-officio capacity, and the primary functions of one office do not require an

appointment to the other post. Moreover, even if the appointments in question are not covered by Section 13,

Article VII of the 1987 Constitution, said appointments are still prohibited under Section 7, Article IX-B, which

covers all appointive and elective officials, due to the incompatibility between the primary functions of the

offices of the PCGG Chairman and the CPLC.

Rosales v Mijares

Facts:

-Rosales was elected as mayor of Catarman. Shortly after assuming office, he called department heads (among

which was Mijares as the MUNICIPAL ENGINEER) and told Mijares to resign under pain of abolition of his

position. Mijares offered to be transferred at the Provincial Engineering Office instead. Rosales then indorsed

Mijares as Asst. Provincial Engineer (and informed him so, with the validity of endorsement for 30 days).

Mijares continued reporting at the Municipal Engineers Office as Provincial Governor did not act on Rosales

endorsement.

-Rosales wrote to respondent again, this time informing Mijares of his separation as the 30d period given to

Mijares to transfer to the Provincial Engineering Office has elapsed. Mijares requested Rosales to withdraw

separation letter as his transfer to the Provincial Engineers Office was not acted upon, and thus, Mijares did

not cease to be an employee of the municipal government. Rosales used MC No. 39, S. 1993 as the reason for

Mijares termination. Rosales offered to reinstate respondent.

Mijares filed COMPLAINT FOR ILLEGAL TERMINATION vs. Rosales before CSC. Fact-finding investigation

conducted. Fact Finding requested Rosales to produce the request for transfer which Rosales said to be

merely verbal. Plus used CMC MC no. 38 as reason (expiration to permit to transfer w/o transfer being

effected)


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CSC: Reinstate Mijares as Municipal engineer, pay backwages.permission to transfer not free and voluntary

made. It was a shrewd machination or clever ploy resorted by Rosales to oust Mijares, THUS ILLEGAL

Request for transfer MUST BE IN WRITING. No evidence of verbal request, as well as date of effectivity of

transfer

.letter of Rosales was merely a detail to Office of the Provi ncial Engineer.

MR DENIED, filed petition for review with CA. CA: Dismiss petition, affirm CSC-expiration of permit to transfer to remove Mijares was purely technical, too flimsy to override consti

mandate upholding right to security of tenure. MR DENIED.

HELD

CSC MC 93-38: Transfer is a movement from one position without break in service involving the issuance of

an appointment. The transfer may be from one agency to another or from one organizational unit to another

in the same agency. An employee who seeks transfer to another office shall first secure permission from the

head of the department or agency where he is employed stating the effective date of the transfer. If the

request to transfer of an employee is not granted by the head of the agency where he is employed, it shall be

deemed approved after the lapse of 30 days from the date of notice to the agency head.

If, for whatever reason, the employee fails to transfer on the specified date, he shall be considered resigned

and his reemployment in his former office shall be at the discretion of his head.-for CSC MC to be effective:

1. written request for transfer

2. Request express and unequivocal, not merely implied or ambiguous

3. request must be such that he intended to surrender his permanent office

-a transfer connotes an absolute relinquishment of an office in exchange for another office. Such request must

be voluntary on the part of the officer concerned and not vitiated by force, coercion, or intimidation or even

deceit.

-Sta. Maria v. Lopez: A transfer that results in promotion or demotion, advancement or reduction or a transfer

that aims to lure the employee away from his permanent position, cannot be done without the employees

consent. For that would constitute removal from office. Indeed, no permanent transfer can take place unless

the officer or employee is first removed from the position held, and then appointed to another position.

-unconsented transfer is anathema to security of tenure. A transfer that aims by indirect method to terminateservices or to force resignation constitutes removal. An employee cannot be transferred unless for causes

provided for by law and after due process. Any attempt to breach the protective wall built around the

employees right to security of tenure should be slain on sight. The right of employees to security of tenure

should never be sacrificed merely at the whims and pleasure of some unscrupulous and heartless politicians.

-IN THIS CASE: Mijares was a well-known supporter of the opposing political party. Mijares was coerced to

resign, even threatened to abolish position if Mijares did not resign. The respondent, in his letter to the

petitioner dated October 2, 1998, admitted that during their second meeting on August 10, 1998, he

suggested that he was open to a transfer to the Provincial Engineering Office or, at least to be detailed

thereat, in lieu of resignation, to which the petitioner agreed; and that upon the petitioners orders, the

respondent accomplished the requisite Form 212, secured copies of his service records, and submitted the

same to the Office of the Provincial Governor for a possible appointment as Assistant Provincial Engineer; and

that the petitioner endorsed and recommended the same to the Provincial Governor. However, taking intoconsideration the entirety of the contents of the letter, and the facts and circumstances which impelled the

respondent to write the same, it cannot thereby be concluded that the respondent had voluntarily and

unequivocally decided to transfer to the Office of the Provincial Engineer.

ON MIJARES being open to transfer: In light of the demands and threats of the petitioner, the respondent

had only three options: to resign, to agree to transfer to another office, or to remain as Municipal Engineer

with the threat of the petitioner to have his position abolished hanging over his head.


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Admittedly, rather than resign as demanded by the petitioner, the respondent opted to make himself

available for appointment by the Provincial Governor as Assistant Provincial Engineer. However, the Form

212 submitted by the respondent to the Provincial Governor is not the written request envisaged in CSC

Memorandum Circular No. 93-38 for the following reasons: (a) the respondent continued reporting and

performing his duties as Municipal Engineer of Catarman and receiving his salary as such; and (b) the

respondent did not send any written request to the petitioner for transfer to the Office of the Provincial

Engineer

-Letter to Mijares is merely a detail for 30d to the Office of Provincial Engineer: Mijares temporarily moved

for a period of 30 days not a transfer (which is longer?) By his September 24, 1998 letter to the respondent,

the petitioner made it appear that he had granted the respondent permission to transfer within thirty days,

and that the respondent failed to effect his transfer. This was done by the petitioner despite the absence of

any letter from the respondent requesting for such transfer. By his August 12, 1998 letter, the petitioner

merely detailed the respondent to the Office of the Provincial Engineer. It must be stressed that the only legal

effect of a detail of an employee, upon the lapse of the period of such detail, is for that employee to return to

his permanent station. Thus, the respondent retained his position as Municipal Engineer despite his detail to

the Office of the Provincial Engineer.

-On alleged deprivation of Due Process: CSC reveived all of Rosales comments and annexes and evaluated the

same. However, no shred of evidence was shown that Mijares requested for his transfer WAS GIVEN ANOPPORTUNITY TO BE HEARD

-Cant rely on Opinion of CSC Regional Director on the application of MC 93 -38:

(a) the petitioner falsely represented to the Regional Director and Provincial Prosecutor that the respondent

had requested for a transfer to the Office of the Provincial Engineer when, in truth and in fact, the respondent

had not done so;

(b) the Regional Director and the Provincial Prosecutor were not even furnished with copies of the October 2,

1998 Letter of the respondent to the petitioner; and

(c) the opinion of the CSC Regional Director and Provincial Prosecutor were not conclusive on the CSC, as the

latter could still reverse the said opinion on appeal

ON ESTOPPEL: Mijares even appealed to CSC!

-ON PRESCRIPTION: procedural rules need not strictly be observed. MAUNA VS. CSC: it is within the powerof this Court to temper rigid rules in favor of substantial justice. While it is desirable that the Rules of Court be

faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not

really impair the proper administration of justice. If the rules are intended to ensure the orderly conduct of

litigation, it is because of the higher objective they seek which is the protection of substantive rights of the

parties

plus: Mijares did contest separation w/n 1y from separation + belated raising issue on appeal

Pub Digest 9

Documents

Transcript of Pub Digest 9