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FRANCISCO A. TAN vs. PEDRO M. GIMENEZ, as Auditor General, and MARTIN AGUILAR, JR., as Acting Secretary of EducationG.R. No. L-12525; February 19, 1960

Facts: The petitioner was head teacher in Habuhab Barrio School. In a complaintfiled with the Bureau of Civil Service, he was charged with gross misconduct fo

r an immoral act. The Commissioner of Civil Service found him guilty as charged

and required him to resign from the service, with prejudice to reinstatement inthe teaching service, effective on his last day of duty with pay. He appealed tothe Civil Service Board of Appeals which the latter reversed the decision.

On 14 July 1955 he wrote to the Divisioria Superintendent of Schools ofLeyte requesting payment of back salaries from 6 August 1949 to 12 June 1955. The Director of Public Schools recommended to the Secretary of Education that thesum of P3,784.57 be paid to the petitioner. Undersecretary of Education disregarded the Director's recommendation and denied the petitioner's claim on the ground that he was out of the service from 6 August 1949 to 1 March 1951, inclusive,he having been dismissed by the Commissioner of Civil Service for grave misconduct; that although the decision of the Commissioner was reversed on appeal by theCivil Service Board of Appeals, payment of back salaries to him during the peri

od of removal from office was a matter of discretion; and that funds were not available.Petitioner filed his claim for back salaries with the Auditor General wh

ich letter went to the Secretary of Education who returned it to the Auditor General with the comment that the petitioner's removal from office by the Commissioner of Civil Service was final and executory. On his second attempt to claim, the Secretary only reiterated the decision.

Issue: Whether or not Tan has the right to claim such back wages.

Held: Yes. The decision of the CSC did not become final and executory. The decision of the Civil Service Board of Appeals reversing that of the Commissioner of Civil Service and absolving the petitioner from the charge was not reversed or

modified by the President. It, therefore, became the final decision on the petitioner's case.

The petitioner's removal from office was not in accordance with law; hisreinstatement became a ministerial duty of the proper authority; and the paymen

t of back salary was merely incidental to reinstatement,The fact that during the pendency of the petitioner's appeal in the Civi

l 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 salaryas such in the total sum of P5,509.63, does not constitute abandonment of his former position.

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. To denyhim the right to collect his back salaries during such period would be tantamount to punishing him after his exoneration from the charge which caused his dismissal from the service.