THIRD DIVISION On June 8, 2000, the inspectors submitted a report recommending the

HRS.OF SPS. LUCIANO and G.R. No. 157972 approval of Sucalditos application. No immediate action, however, was taken by
CONSOLACION VENTURILLO, respondent City Engineer on the report.
Represented by ROWENA B. Present:
VENTURILLO-SUCALDITO,
Petitioners, QUISUMBING, J., On October 4, 2001, respondent City Engineer asked the petitioners to
Chairperson, secure a building permit for the house erected on the lot, after it was shown that
CARPIO, said structure had no building permit.
CARPIO MORALES,
- versus - TINGA, and The petitioners then hired an engineer who prepared the necessary plans
VELASCO, JR., JJ. and other documents, which were submitted to the respondent City Engineer.
HON. JESUS V. QUITAIN, Promulgated:
Presiding Judge, RTC-Br. 15,
11th Judicial Region, Davao City and October 30, 2006 On October 27, 2002, the Sanggunian Barangay of Barangay 4-
ENGR. MEINRADO R. METRAN, A, Poblacion, Davao City passed a resolution requesting
City Engineer and Building Official of the Sanggunian Panglungsud of Davao City to declare the portion of the proposed
The City of Davao, extension of Mayon St., as suppressed road.
Respondents.
On January 8, 2003, respondent City Engineer sent petitioners a Notice
x----------------------------------------------------------------------------x
of Order of Removal.
DECISION
TINGA, J.:
The Heirs of Spouses Luciano and Consolacion Venturillo (Heirs of Venturillo), On February 13, 2003, the Zoning Administrator wrote petitioners that the
represented by Rowena B. Venturillo-Sucaldito, assail for having been issued with grave abuse of area they were occupying is a road right-of-way.
discretion the Order[1] dated April 22, 2003 of the Regional Trial Court of Davao City, Branch 15,
which dismissed their petition for mandamus and denied their prayer for injunctive relief. On March 20, 2003, the petitioners herein filed a petition for mandamus
with urgent prayer for temporary restraining order (TRO) and preliminary
The following statement of facts is taken from the Courts Resolution [2] dated May 15,
injunction against respondent City Engineer with the RTC of Davao City, docketed
2003:
as SP Civil Case No. 29597-2003. The trial court granted the temporary
Sometime in 1942, the
restraining order prayed for.
Spouses Luciano and Consolacion Venturillo occupied a 678-square meter lot
in Poblacion, Davao City, said lot being public land. The Venturillocouple erected
On March 25, 2003, the trial court ordered the parties in a hearing set
a house on the said property and begot 11 children, the petitioners herein, during
for March 27, 2003 to determine whether the TRO should be extended for 17
their lifetime.
days. Said hearing, however, was cancelled at the manifestation of the
respondent City Engineer.
In 1974, the Davao City Assessors Office directed the Venturillos to file a
Tax Declaration. They complied with the said directive and paid the required
On March 31, 2003, the hearing for the writ of preliminary injunction was
taxes. The petitioners then continued the renewal of the tax declarations and
set for April 14-15, 2003.
paying of taxes.
On April 8, 2003, respondent City Engineer moved for an extension of
Sometime in 2000, Rowena Venturillo-Sucaldito filed a sales application
time to file his answer to the petition.
with the Department of Environment and Natural Resources (DENR) and the
DENR wrote the City Government for its comments regarding her application. In
On April 15, 2003, the respondent City Engineer manifested in open court
response, respondent City Engineer sent an inspection team to check out the
that he was not opposing the application for a writ of preliminary injunction. The
property.
trial court then ordered the petitioners to submit their formal offer of exhibits to
support their application on April 21, 2003 and the City Engineer to comment
 upon the same within five days from receipt, after which the trial court would rule
upon the application for injunction.
On April 22, 2003, petitioner moved to have their tardily filed formal
exhibits admitted and submitted their formal offer of exhibits. That same day, the
trial court denied the issuance of the writ of preliminary injunction and dismissed
the SP Civil Case No. 29597-2003.
The Heirs of Venturillo allege that the trial court gravely abused its discretion when it
dismissed their petition for mandamus and denied their prayer for injunction without: (1) ruling on
the admissibility of their admittedly tardy formal offer of exhibits; (2) waiting for respondent City
Engineers comment or objection to said formal offer; and (3) without waiting for the answer of the
City Engineer in the mandamus case.
In the afore-cited Resolution dated May 15, 2003, the Court, ruling that there is a need to
maintain the last, actual, peaceable, and uncontested state of things which preceded the present
controversy, directed the parties to maintain the status quo.
The Office of the City Legal Officer filed a Comment [3] dated July 31, 2003 on behalf of
respondent City Engineer Meinrado R. Metran, contending that the trial courts dismissal of the
petition for mandamus and denial of the prayer for injunction do not constitute grave abuse of
discretion. According to respondent, the Heirs of Venturillo were not able to establish any legal
right to demand the issuance of a building permit because the lot on which their structure was
constructed remains to be public land delineated as a road right-of-way. Although the Heirs
of Venturillo filed a sales application with the DENR, their application was not processed.
Moreover, the Heirs of Venturillo allegedly failed to comply with the indispensable
requirement of filing a motion for reconsideration before they sought recourse to this Court via a
petition for certiorari. Neither did they file an appeal of the trial courts final Order.
The Heirs of Venturillo filed a Reply[4] dated December 15, 2003 reiterating their
arguments.
In the Resolution[5] dated May 19, 2004, the parties were required to file their respective
memoranda. Thus, respondent filed a Memorandum[6] dated July 15, 2004, while the Heirs
of Venturillo filed their Memorandum[7] on September 21, 2004.
The general rule is that the remedy to obtain reversal or modification of a judgment on the
merits is appeal. This is true even if the error ascribed to the court which rendered judgment is its
lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave
abuse of discretion in the findings of fact or of law set out in the decision.[8]
In this case, the Heirs of Venturillo received the assailed Order of the trial court on April
25, 2003. They therefore had 15 days from this date, or until May 10, 2003, within which to file an
appeal to the Court of Appeals under Rule 41 of the 1997 Rules of Civil Procedure (Rules of
Court) or a petition for review on certiorari to this Court under Rule 45 of the same rules. However,
in the guise of availing of a petition for certiorari under Rule 65 of the Rules of Court, the Heirs
of Venturillofiled their petition only on May 12, 2003. It is axiomatic that the special civil action of
certiorari cannot be used as a substitute for the lost or lapsed remedy of appeal.[9]
Even assuming that the Heirs of Venturillo have a cause of action ripe for the
extraordinary writ of certiorari, they clearly disregarded the hierarchy of courts when they directly
filed their petition with this Court without adducing any special and important reason or exceptional
or compelling circumstance for such a recourse. Considering that the special civil action of
certiorari under Rule 65 of the Rules of Court is within the concurrent original jurisdiction of the
Supreme Court and the Court of Appeals, the petition should have been initially filed in the Court
of Appeals in strict observance of the doctrine on the hierarchy of courts.[10]
Moreover, the Heirs of Venturillo failed to file a motion for reconsideration of the trial
courts Order, depriving the latter of the opportunity to correct whatever error it may have
committed. Rule 65 of the Rules of Court requires that petitioner be left with no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law.[11]
A motion for reconsideration is a plain, speedy, and adequate remedy. The filing thereof is
a condition precedent in order that a petition for certiorari may be given due course.[12] Although
there are certain recognized exceptions to this rule, such as where the order is a patent nullity for
lack of jurisdiction on the part of the court which rendered it, or where the questions raised in the
certiorari proceeding have been duly raised and passed upon in the lower court,[13] we find no such
exception in this case which would warrant a departure from the rule.
Regional Trial Courts are fully clothed with jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any
part of their respective regions. Moreover, the question of whether it should have first ruled on the
admissibility of the tardy formal offer of exhibits filed by the Heirs of Venturillo, and waited for
respondents comment or objection to said formal offer and answer in the mandamus case, were
not raised and passed upon by the trial court precisely because the Heirs of Venturillo failed to file
a motion for reconsideration. Had they done so, the trial court would have been given the
opportunity to correct any factual or fancied error attributed to it by way of re-examination of the
legal and factual aspects of the case.
These procedural errors, notwithstanding, and in the interest of finally disposing of this
case, we reviewed its merits and found that indeed grave abuse of discretion attended the
issuance of the assailed Order of the trial court.
The remedy of mandamus lies to compel the performance of a ministerial duty.[14] A purely
ministerial act or duty, in contradistinction to a discretionary act, is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal
authority, without regard to or the exercise of his own judgment, upon the propriety or impropriety
of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and not ministerial.[15]
The issuance of a building permit may be considered a ministerial duty only when the
application and the plans are in conformity with the requirements of zoning and land use, lines and
grades, structural design, sanitary and sewerage, environmental health, electrical and mechanical
safety as well as with other rules and regulations promulgated in accordance with the provisions of
the National Building Code.[16]
In this case, the Heirs of Venturillo complied with all the requirements for the procurement
of a building permit enumerated under the National Building Code, such as the description of the
work to be covered by the permit applied for; description and ownership of the lot on which the
proposed work is to be done; the use or occupancy for which the proposed work is intended;
estimated cost of the proposed work; and the plans and specifications prepared, signed and
sealed by a duly licensed engineer.[17] They also paid the requisite fees for the application.[18]
Having done so, it became incumbent upon respondent City Engineer to issue the
building permit applied for. His refusal to perform an act which the law enjoins him to do, upon the
full compliance by the Heirs of Venturillo of the conditions provided under the law, entitles the
latter to the writ of mandamus prayed for.
By the same token, the Heirs of Venturillo are entitled to a writ of injunction to prevent the
threatened summary demolition of their residence. The requisites for an injunctive writ to issue are
that: (1) the petitioner/applicant must have a clear and unmistakable right; (2) there is a material
and substantial invasion of such right; and (3) there is an urgent and permanent necessity for the
writ to prevent serious damage.[19]
Respondent City Engineers refusal to issue the building permit and concomitant order for
the Heirs of Venturillo to cause the demolition of their house or else the same shall be summarily
demolished[20] are premised on the fact that the house which the Heirs of Venturillo intended to
refurbish stands in the middle of the proposed extension of Mt. Mayon Street, an area which had
been declared as a road right-of-way by the City Government.
It should be emphasized, however, that the Heirs of Venturillo, through their parents, have
continuously possessed and occupied the land on which the house sought to be refurbished
stands since 1942. This possession was with the tacit consent and authorization of the City
Government. In fact, the City Assessors Office directed the Venturillos to file tax declarations and
pay real property taxes thereon which they have consistently complied with.
In Estate of Gregoria Francisco v. Court of Appeals,[21] the municipal mayor
of Isabela, Basilan ordered the summary demolition, without judicial authority, of
a quonset building which stood on a lot owned by the Philippine Ports Authority. The municipal
mayor justified the demolition as an exercise of police power and for reasons of health, safety and
general welfare.
The Court awarded just compensation the amount of which was for the trial court to
determine in favor of the petitioner whose building was demolished by the municipality even before
a proper tribunal could decide whether or not the building constituted a nuisance in law. The ruling
was premised on the ground that the owner of the building was in lawful possession of the lot and
the building by virtue of the permit from the authorized government agency when the demolition
was affected.
In the same vein, by virtue of the City Governments tacit consent, the Heirs
of Venturillo are not squatters on public land but are in lawful possession thereof, including the
house subject of the summary demolition order of respondent City Engineer. The Heirs
of Venturillo have a clear and unmistakable legal right not to be disturbed in their lawful
possession of the property unless the proper judicial tribunal has determined that the same
constitutes a nuisance in law.
The trial court should have issued an injunctive writ to prevent the imminent threat of
summary demolition of the Heirs of Venturillos residence without judicial proceedings. That it failed
to safeguard petitioners right to due process constitutes grave abuse of discretion.
WHEREFORE, the instant petition is GRANTED. The Order dated April 22, 2003 of
the Regional Trial Court of Davao City, Branch 15, is ANNULLED and SET ASIDE. The public
respondent City Engineer of Davao City is DIRECTED to issue in favor of petitioners the building
permit applied for. He is further ORDERED to CEASE and DESIST from enforcing the Order of
Removal dated January 8, 2003. No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
Adm. Matter No. R-181-P July 31, 1987
ADELIO C. CRUZ, complainant,
vs.
QUITERIO L. DALISAY, Deputy Sheriff, RTC, Manila, respondents.
RESOLUTION
FERNAN, J.:
In a sworn complaint dated July 23, 1984, Adelio C. Cruz charged Quiterio L. Dalisay, Senior
Deputy Sheriff of Manila, with "malfeasance in office, corrupt practices and serious irregularities"
allegedly committed as follows:
1. Respondent sheriff attached and/or levied the money belonging to complainant Cruz when he
was not himself the judgment debtor in the final judgment of NLRC NCR Case No. 8-12389-91
sought to be enforced but rather the company known as "Qualitrans Limousine Service, Inc.," a
duly registered corporation; and,
2. Respondent likewise caused the service of the alias writ of execution upon complainant who is
a resident of Pasay City, despite knowledge that his territorial jurisdiction covers Manila only and
does not extend to Pasay City.
In his Comments, respondent Dalisay explained that when he garnished complainant's cash
deposit at the Philtrust bank, he was merely performing a ministerial duty. While it is true that said
writ was addressed to Qualitrans Limousine Service, Inc., yet it is also a fact that complainant had
executed an affidavit before the Pasay City assistant fiscal stating that he is the owner/president of
said corporation and, because of that declaration, the counsel for the plaintiff in the labor case
advised him to serve notice of garnishment on the Philtrust bank.
On November 12, 1984, this case was referred to the Executive Judge of the Regional Trial Court
of Manila for investigation, report and recommendation.
Prior to the termination of the proceedings, however, complainant executed an affidavit of
desistance stating that he is no longer interested in prosecuting the case against respondent
Dalisay and that it was just a "misunderstanding" between them. Upon respondent's motion, the
Executive Judge issued an order dated May 29, 1986 recommending the dismissal of the case.
It has been held that the desistance of complainant does not preclude the taking of disciplinary
action against respondent. Neither does it dissuade the Court from imposing the appropriate
corrective sanction. One who holds a public position, especially an office directly connected with
the administration of justice and the execution of judgments, must at all times be free from the
appearance of impropriety.1
We hold that respondent's actuation in enforcing a judgment against complainant who is not the
judgment debtor in the case calls for disciplinary action. Considering the ministerial nature of his
duty in enforcing writs of execution, what is incumbent upon him is to ensure that only that portion
of a decision ordained or decreed in the dispositive part should be the subject of execution. 2 No
more, no less. That the title of the case specifically names complainant as one of the respondents
is of no moment as execution must conform to that directed in the dispositive portion and not in the
title of the case.
The tenor of the NLRC judgment and the implementing writ is clear enough. It directed Qualitrans
Limousine Service, Inc. to reinstate the discharged employees and pay them full backwages.
Respondent, however, chose to "pierce the veil of corporate entity" usurping a power belonging to
the court and assumed improvidently that since the complainant is the owner/president of
Qualitrans Limousine Service, Inc., they are one and the same. It is a well-settled doctrine both in
law and in equity that as a legal entity, a corporation has a personality distinct and separate from
its individual stockholders or members. The mere fact that one is president of a corporation does
not render the property he owns or possesses the property of the corporation, since the president,
as individual, and the corporation are separate entities.3
Anent the charge that respondent exceeded his territorial jurisdiction, suffice it to say that the writ
of execution sought to be implemented was dated July 9, 1984, or prior to the issuance of
Administrative Circular No. 12 which restrains a sheriff from enforcing a court writ outside his
territorial jurisdiction without first notifying in writing and seeking the assistance of the sheriff of the
place where execution shall take place.
ACCORDINGLY, we find Respondent Deputy Sheriff Quiterio L. Dalisay NEGLIGENT in the
enforcement of the writ of execution in NLRC Case-No. 8-12389-91, and a fine equivalent to three
[3] months salary is hereby imposed with a stern warning that the commission of the same or
similar offense in the future will merit a heavier penalty. Let a copy of this Resolution be filed in the
personal record of the respondent.
SO ORDERED.
 Mayor Dickson, in response, informed the Sanggunian that the stalls were constructed under a
Build-Operate-Transfer (BOT) scheme, which meant that the petitioners had the right to keep their
stalls until the BOT agreement was satisfied. He then asked the Sanggunian if provisions were
made to sanction lessees under the BOT scheme similar to the provision against subleasing (Item
No. 9) in the contract of lease.8

Thereafter, Bandrang wrote another letter to the Sanggunian, praying and recommending to
Mayor Dickson, by way of a resolution, the cancellation of the lease contract between the
Municipality and petitioners for violating the provision on subleasing. She suggested that after
which, the stalls can be bidded upon anew and leased to the successful bidder. She made the
THIRD DIVISION
suggestion because Mayor Dickson did not act on her concerns even after
the Sanggunian referred them to him. 9
January 11, 2017
The Sanggunian once again referred the letter of Bandrang, together with a copy of Resolution
G.R. No. 188448 No. 183-2004, to Mayor Dickson for appropriate action. The Sanggunian opined that they no
longer need to make any recommendation to Mayor Dickson because Resolution No. 183-2004
RODOLFO LAYGO and WILLIE LAYGO, Petitioners, already empowered and authorized him to cancel the lease contracts pursuant to its pertinent
vs. provisions. 10
MUNICIPAL MAYOR OF SOLANO, NUEVA VIZCAYA, Respondent.
Mayor Dickson, however, did not act on the letter of Bandrang and on the referrals of
DECISION the Sanggunian. Thus, Bandrang filed a Petition for Mandamus 11 against him before the Regional
Trial Court of Bayombong, Nueva Vizcaya (RTC). Subsequently, she amended her petition to
JARDELEZA, J.: implead petitioners. 12 Bandrang alleged that despite already being aware of the violations of the
lease contracts of petitioners with the Municipality, Mayor Dickson still refused to enforce the
provisions of the lease contracts against subleasing. Bandrang concluded that Mayor Dickson's
This is a Petition for Review on Certiorari1under Rule 45 of the Revised Rules of Court from the inaction can only be construed as an unlawful neglect in the performance and enforcement of his
Decision2 dated December 16, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 103922 and public duty as the Chief Executive of Solano, Nueva Vizcaya. Thus, she sought an order directing
its Resolution3 dated June 19, 2009. Mayor Dickson to immediately cancel the lease between the Municipal Government and
petitioners over Public Market Stall Nos. 77-A, 77-B, 78-A, and 78-B, and to lease the vacated
Facts stalls to interested persons. 13

In July 2005, AnizaBandrang (Bandrang) sent two letter-complaints4 to then Municipal Mayor
Santiago O. Dickson (Mayor Dickson) and the Sangguniang Bayan of Solano, Nueva Vizcaya,
informing them of the illegal sublease she entered into with petitioners Rodolfo Laygo and Willie
Laygo over Public Market Stalls No. 77-A, 77-B, 78-A, and 78-B, which petitioners leased from the
Municipal Government. Bandrang claimed that petitioners told her to vacate the stalls, which they
subsequently subleased to another. Bandrang expressed her willingness to testify against
petitioners if need be, and appealed that she be given priority in the future to lease the stalls she
vacated. 5
In August 2005, the Sangguniang Bayan endorsed the letter of Bandrang and a copy of Resolution
No. 183-20046 to Mayor Dickson for appropriate action. The Sanggunian informed Mayor Dickson
that the matter falls under the jurisdiction of his office since it (Sanggunian) has already passed
and approved Resolution No. 183-2004, which authorized Mayor Dickson to enforce the provision
against subleasing of stalls in the public market.7
In his Answer with Special and Affirmative Defenses, 14 Mayor Dickson claimed that under the
principle of pari delicto, Bandrang had no right to seek remedy with the court as she was guilty
herself in leasing the market stalls. Mayor Dickson insisted that he acted in accordance with law
by referring the matter to the Sanggunian for appropriate action. He also argued that Bandrang
had no cause of action against him and that she was not a real-party-in-interest. He likewise
asserted that the subject of the mandamus was not proper as it entailed an act which was purely
discretionary on his part. 15
In his Pre-Trial Brief, 16 Mayor Dickson elaborated that Bandrang had no cause of action because
the stalls were on a BOT scheme covered by an ordinance. During the hearing, Mayor Dickson
presented a copy of the resolution of the Sanggunian indicating that there was a directive to all
stall owners in the public market of Solano, Nueva Vizcaya to build their own stalls after a fire
gutted the public market. 17
On the other hand, petitioners denied that they were the lessees of Stalls 77 A and B and 78 A
and B. They clarified that Clarita Laygo (Clarita), their mother, was the lessee of the stalls by virtue
of a BOT scheme of the Municipality. At the time they entered into a contract of lease with
Bandrang, it was agreed that the contract was subject to the consent of the other heirs of Clarita.
The consent, however, was never given; hence, there was no subleasing to speak of. Even on the
assumption that there was, petitioners maintained that the prohibition on subleasing would not
apply because the contract between the Municipality and Clarita was one under a BOT scheme.
Resolution No. 183-2004 only covered stall holders who violated their lease contracts with the
Municipal Government. Since their contract with the Municipal Government was not a lease
contract but a BOT agreement, Resolution No. 183-2004 would neither apply to them, nor be
enforced against them. 18 Further, even granting arguendo that the prohibition would apply,
petitioners claimed that there was no more ground for the revocation of the lease because the
subleasing claimed by Bandrang had ended and the subsequent receipt by the Municipality of
payments ratified the contract with petitioners. 19
Meanwhile, on July 23, 2007, the RTC issued an Order directing the substitution of then
incumbent mayor Hon. Philip A. Dacayo (Mayor Dacayo) as respondent in place of Mayor
Dickson.20
Bandrang filed a Motion for Summary Judgment21 on January 8, 2008 arguing that no genuine
factual issues existed to necessitate trial. Bandrang reiterated the violation of petitioners against
subletting in their lease contracts with the Municipal Government. She stated that the will of
the Sanggunian to enforce the policy against subleasing was bolstered by the fact that it passed
two more resolutions, Resolution No. 017-2006 and Resolution No. 135-2007, reiterating the
implementation of Resolution No. 183-2004.22 She also alleged for the first time that after the filing
of the case, another violation besides the prohibition on subletting surfaced: the nonpayment of
stall rental fees. She pointed out that petitioners admitted this violation when they exhibited during
a hearing the receipt of payment of rentals in arrears for over 17 months. Bandrang quoted
Section 7B.06 (a) of Municipal Ordinance No. 164, Series of 1994, which stated that failure to pay
the rental fee for three consecutive months shall cause automatic cancellation of the contract of
lease of space or stall. She then concluded that this section left Mayor Dickson with no choice but
to comply.23
RTC Ruling
In its Resolution dated January 28, 2008, the RTC granted the petition.1âwphi1 Thus:
"WHEREFORE, in view of all the foregoing, let a Writ of Mandamus to issue ordering the
Municipal Mayor of Solano to implement Nos. 9 and 11 of the provisions of the Contract of lease of
stall between the Municipal Government of Solano and private respondents Rodolfo and Willie
Laygo.
The Municipal Mayor of Solano, Hon. Philip A. Dacayo, is hereby ordered as it is his duty to
enforce [Sangguniang Bayan] Resolution Nos. 183-2004 and [135]-2007 immediately and without
further delay.
SO ORDERED."24
The RTC held that the contract between petitioners and the Municipal Government was a lease
contract, as evidenced by a certification signed by Mayor Epifanio LD. Galima (Mayor Galima)
dated September 17, 2006.25 The RTC brushed aside the non-presentation of the written contract
of lease, noting that public policy and public interest must prevail. The RTC also held that even on
the assumption that there was a BOT agreement between petitioners and the Municipal
Government, petitioners had already been compensated for it, as evidenced by certifications of the
Municipal Government dated August 28, 2006 and September 1 7, 2006. 26 As regards the non-
payment of stall rentals, the RTC ruled that petitioners deemed to have admitted the allegation
when they exhibited to the court the receipt of payment of rentals in arrears.27
The RTC, thus, concluded that petitioners clearly violated the terms and conditions of the lease
contract, which gave rise to the enactment of Resolution No. 183-2004.1âwphi1 Since Mayor
Dickson failed in his duty to enforce the resolution and delayed its implementation without valid
reason, man amus is a proper remedy. 28
Petitioners appealed to the CA, while then incumbent Mayor Dacayo filed a manifestation
expressing his willingness to implement Resolutions No. 183-2004 and 135-2007.29
Court of Appeals Ruling
On December 16, 2008, the CA rendered the now assailed Decision30 dismissing the appeal and
sustaining the resolution of the RTC.
The CA affirmed the finding of the RTC that the contract between petitioners and the Municipal
Government is a lease contract and, thus, Resolution No. 183-2004 applies to them.31
On the issue of whether mandamus is proper, the CA also affirmed the ruling of the RTC stating
that although mandamus is properly availed of to compel a ministerial duty, it is also available to
compel action in matters involving judgment and discretion but not to direct an action in a
particular way, to wit:
x xx However, mandamus is available to compel action, when refused, in matters involving
judgment
and discretion, though not to direct the exercise of judgment or discretion in a particular way or
the retraction or reversal of an action already taken in the exercise of either.
In the case at bar, the Sangguniang Bayan of Solano ("Sanggunian") delegated to Mayor Dickson
and subsequently to incumbent Mayor Dacayo, the power tocancel the lease contracts of
those market stallholderswho violated their contracts with the Municipality. Inferred from
this power is the power of the Mayor to determine who among the market stallholders violated
their lease contracts with the Municipality. Such power connotes an exercise of discretion.
When then Mayor Dickson refused to exercise this discretion, even after the Sanggunian assured
him that the subject resolution empowered him to have the lease contracts of the Laygos
cancelled, said act of refusal became proper subject of mandamus, as it involved a duty expected
of him to be performed. So with the incumbent Mayor, the Hon. Philip Dacayo, as was ordered by We have no reason to doubt the certifications of the former mayor of Solano, Mayor Galima, and
the Court below. 32 the Municipal Planning and Development Office (MPD0)37 which show that the contract of the
Municipal Government with petitioners' mother, Clarita, was converted into a BOT agreement for a
Willie Laygo filed a Motion for Reconsideration dated January 20, 2009, which was denied by the time in 1992 due to the fire that razed the public market. These certifications were presented and
CA in a Resolution33 dated June 19, 2009. offered in evidence by petitioners themselves. They prove that Clarita was allowed to construct her
stalls that were destroyed using her own funds, and with the payment of the lease rentals being
suspended until she recovers the cost she spent on the construction. The construction was, in
Hence, this petition, which raised the following questions:
fact, supervised by the MPDO for a period of three months. The stalls were eventually constructed
completely and awarded to Clarita. She thereafter reoccupied the stalls under a lease contract
1.May the Sangguniang Bayan Resolution No. 183-2004 be applied against petitioners despite the with the Municipal Government. In fact, in his Notice dated August 21, 2007, the Municipal
absence of a contract of lease between them and the Municipal Government of Solano, Nueva Treasurer of Solano reminded petitioners of their delinquent stall rentals from May 2006 to July
Vizcaya? 2007. 38 As correctly posited by the Municipal Government, if the stalls were under a BOT scheme,
the Municipal Treasurer could not have assessed petitioners of any delinquency.39
2. May the Sangguniang Bayan Resolution No. 183-2004 be enforced by anybody else, except
Mayor Dickson? Also, petitioners themselves raised, for the sake of argument, that even if the contract may be
conceded as one of lease, the municipality is nonetheless estopped from canceling the lease
Petitioners reiterate their position that Resolution No. 183-2004 cannot be enforced against them contract because it subsequently accepted payment of rentals until the time of the filing of the
because there was no contract of lease between them and the Municipal Government and case.40
therefore, there cannot be any occasion for petitioner to violate any provision.
In the same vein, the Sangguniang Bayan Resolution No. 183-2004, which quoted Items No. 9
Moreover, petitioners argue that the resolution can only be enforced by Mayor Dickson because it and 11 of the lease contract on the absolute prohibition against subleasing and the possible
specified Mayor Dickson and no other. Consequently, since Mayor Dickson is no longer in office, termination of the contract in view of back rentals or any violation of the stipulations in the contract,
he cannot now enforce Resolution No. 183-2004.34 is presumed to have been regularly issued. It deserves weight and our respect, absent a showing
of grave abuse of discretion on the part of the members of the Sanggunian.
The Municipal Government, through the Provincial Legal Officer of Nueva Vizcaya, stated in its
Comment35 that the policy against subleasing was bolstered by the enactment of Mandamus, however, is not
the Sanggunian of another resolution, Resolution No. 135-2007, with the same purpose, but proper.
authorizing then Mayor Dacayo to implement the No. 9 and No. 11 provisions. in the contract of
lease.36 Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state
or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or
Our Ruling person requiring the performance of a particular duty therein specified, which duty results from the
official station of the party to whom the writ is directed or from operation of law.41 As a rule,
We grant the petition. mandamus will not lie in the absence of any of the following grounds: [a] that the court, officer,
board, or person against whom the action is taken unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from office, trust, or station; or [b] that such
There is preponderant evidence court, officer, board, or person bas unlawfully excluded petitioner/relator from the use and
that the contract between enjoyment of a right or office to which he is entitled.42 Neither will the extraordinary remedy
petitioners and the Municipal of mandamus lie to compel the performance of duties that are discretionary in nature. 43 In Roble
Government is one of lease. Arrastre, Inc. v. Villaflor,44we explained the difference between the exercise of ministerial and
discretionary powers, to wit:
The type of contract existing between petitioners and the Municipal Government is disputed. The
Municipal Government asserts that it is one of lease, while petitioners insist that it is a BOT "Discretion," when applied to public functionaries, means a power or right conferred upon them by
agreement. Both parties, however, failed to present the contracts which they purport to have. It is law or
likewise uncertain whether the contract would fall under the coverage of the Statute of Frauds and
would, thus, be only proven through written evidence. In spite of these, we find that the Municipal
Government was able to prove its claim, through secondary evidence, that its contract with acting officially, under certain circumstances, uncontrolled by the judgment or conscience of
petitioners was one of lease. others. A purely ministerial act or duty in contradiction to a discretional act is one which an officer
or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate
of a legal authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right
to decide how or when the duty shall be performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same requires neither the exercise of official
discretion or judgment.45(Citation omitted.)
Applying the foregoing distinction, we find that the Petition for Mandamus must fail because the
acts sought to be done are discretionary in nature.
The petition sought an order to direct Mayor Dickson to cancel the lease contract of petitioners
with the Municipal Government and to lease the vacated market stalls to interested persons. We
have already settled in the early case of Aprueba v. Ganzon46that the privilege of operating a
market stall under license is always subject to the police power of the city government and may be
refused or granted for reasons of puplic policy and sound public administration. 47 Being a
delegated police power falling under the general welfare clause of Section 16 of the Local
Government Code, the grant or revocation of the privilege is, therefore, discretionary in nature. 48
Moreover, Resolution No. 183-2004, or even its subsequent equivalent, Resolution No. 135-2007,
merely authorizes the mayor "to enforce the No. 11 provision of the contract of lease of market
stalls between the Municipal Government and the stallholders at the Solano [P]ublic Market who
violated the No. 9 provision of said contract x x x."49 Item No. 11 provides that "[i]f any back rental
remains unpaid for more than [15] days or if any violation be made of any of the stipulations of this
lease by the LESSEE, the LESSOR may declare this lease terminated and, thereafter, reenter the
leased premises and repossess the same, and expel the LESSEE or others claiming under
him/her from the leased premises."50 Clearly, Item No. 11 does not give the mayor a mandate
to motupropio or automatically terminate or cancel the lease with a lessee who is delinquent in the
payment of rentals or who is in violation of any of the provisions of the contract. This is apparent
from the permissive word "may" used in the provision. It does not specifically enjoin the mayor to
cancel the lease as a matter of "duty." Where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. 51
We do not discount, however, our ruling in previous cases where we cited exceptions to the rule
that only a ministerial duty can be compelled by a writ of mandamus. In Republic v.
Capulong, 52 we held that as a general rule, a writ of mandamus will not issue to control or review
the exercise of discretion of a public officer since it is his judgment that is to be exercised and not
that of the court.53 Courts will not interfere to modify, control or inquire into the exercise of this
discretion unless it be alleged and proven that there has been an abuse or an excess of authority
on the part of the officer concerned. 54
In Angchango, Jr. v. Ombudsman, 55 we also held that in the performance of an official duty or act
involving discretion, the corresponding official can only be directed by mandamus to act, but not to
act one way or the other. However, this rule admits of exceptions such as in cases where there is
gross abuse of discretion, manifest injustice, or palpable excess of authority. 56 These exceptions
do not apply in this case.
Firstly, while Mayor Dickson may be compelled to act on the directive provided in Resolution No.
135-2007, he may not be compelled to do so in a certain way, as what was prayed for by
Bandrang in seeking the cancellation of the contract and to re-lease the vacated market stalls to
interested persons. It was enough that Mayor Dickson be reminded of his authority to cancel the
contract under Item No. 11, but whether or not his decision would be for or against Bandrang
would be for Mayor Dickson alone to decide. Not even the Court can substitute its own judgment
over what he had chosen.
As it was, Mayor Dickson did act on the matter before him. He exercised his discretion by
choosing not to cancel the contract on the ground of pari delicto, explaining that Bandrang, as the
sub-lessee herself, was in violation of the same policy on subleasing. The complaint does not
allege that in deciding this way, Mayor Dickson committed grave abuse of discretion, manifest
injustice, or palpable excess of authority. Neither did Bandrang present proof that Mayor Dickson
acted arbitrarily, wantonly, fraudulently, and against the interest of the public when he chose not to
cancel the lease contract of petitioners. 57
Further, aside from the imperative duty of the respondent in a petition for mandamus to perform
that which is demanded of him, it is essential that, on the one hand, the person petitioning for it
has a clear legal right to the claim that is sought.58 To be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a
legal right. The petitioner in every case must therefore be an aggrieved party, in the sense that he
possesses a clear right to be enforced and a direct interest in the duty or act to be performed. The
Court will exercise its power of judicial review only if the case is brought before it by a party who
has the legal standing to raise the constitutional or legal question. "Legal standing" means a
personal and substantial interest in the case such that the party has sustained or will sustain direct
injury as a result of the government act that is being challenged. 59 Does Bandrang have such
legal standing to institute the petition? We answer in the negative.
Following our ruling in the early case of Almario v. City Mayor, et al., 60 where we ruled that the
petitioner seeking to compel the city mayor toeject occupants of stalls in the public market had
no locus standi to file thepetition for mandamus, we also arrive here with the same
conclusion.Similarly with Almario, Bandrang is not an applicant for any stall in thepublic market
which is the subject of the controversy. She is neither arepresentative of any such applicant, stall
holder, or any association of persons who are deprived of their right to occupy a stall in said
market. As we have deduced in Almario:
x xx Verily, he is not the real party in interest who has the capacity, right or personality to institute
the present action. As this Court has well said in an analogous case, "the petitioner does not have
any special or individual interest in the subject matter of the action which would enable us to say
that he is entitled to the writ as a matter of right. His interest is only that a citizen at
largecoupled with the fact that in his capacity a[ s] president of the Association of Engineers it is
his duty to safeguard the interests of the members of his association."61 (Italics in the original,
citation omitted.)
WHEREFORE, in view of the foregoing, the petition is GRANTED. The Decision dated December
16, 2008 and Resolution dated June 19, 2009of the Court of Appeals in CA-G.R. SP No. 103922,
and the Resolutiondated January 28, 2008 of the Regional Trial Court of Bayombong,
NuevaVizcaya are REVERSED and SET ASIDE. The Petition for Mandamusagainst Mayor
Santiago O. Dickson is DISMISSED. SO ORDERED.
THIRD DIVISION While it may be true that [petitioner] did not actually deal with the other government agencies for
the processing of the titles of the subject property, we believe, however, that her mere act in
[G.R. No. 178454, March 28 : 2011] accepting the money from the [respondent] with the assurance that she would work for the
issuance of the title is already enough to create a perception that she is a fixer. Section 4(b) of
[R.A.] No. 6713 mandates that public officials and employees shall endeavor to discourage
FILIPINA SAMSON, PETITIONER, VS. JULIA A. RESTRIVERA, RESPONDENT. wrong perception of their roles as dispenser or peddler of undue patronage.

DECISION x xxx

xxx [petitioner's] act to x xx restore the amount of [P50,000] was to avoid possible sanctions.
VILLARAMA, JR., J.:
x xx [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was
Petitioner Filipina Samson appeals the Decision[1] dated October 31, 2006 of the Court of Appeals agreed upon by both parties that [petitioner] be given until 28 February 2003 within which to pay
(CA) in CA-G.R. SP No. 83422 and its Resolution[2] dated June 8, 2007, denying her motion for the amount of P50,000.00 including interest. If it was true that [petitioner] had available money to
reconsideration. The CA affirmed the Ombudsman in finding petitioner guilty of violating Section pay and had been persistent in returning the amount of [P50,000.00] to the [respondent], she
4(b)[3] of Republic Act (R.A.) No. 6713, otherwise known as the Code of Conduct and Ethical would have easily given the same right at that moment (on 19 October 2002) in the presence of
Standards for Public Officials and Employees. the Barangay Officials.[6] x xx. (Stress in the original.)

The facts are as follows: The CA on appeal affirmed the Ombudsman's Order dated March 19, 2004. The CA ruled that
contrary to petitioner's contentions, the Ombudsman has jurisdiction even if the act complained of
Petitioner is a government employee, being a department head of the Population Commission with is a private matter. The CA also ruled that petitioner violated the norms of conduct required of her
office at the Provincial Capitol, TreceMartirez City, Cavite. as a public officer when she demanded and received the amount of P50,000 on the representation
that she can secure a title to respondent's property and for failing to return the amount. The CA
Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to stressed that Section 4(b) of R.A. No. 6713 requires petitioner to perform and discharge her duties
have the latter's land located in Carmona, Cavite, registered under the Torrens System. Petitioner with the highest degree of excellence, professionalism, intelligence and skill, and to endeavor to
said that the expenses would reach P150,000 and accepted P50,000 from respondent to cover the discourage wrong perceptions of her role as a dispenser and peddler of undue patronage. [7]
initial expenses for the titling of respondent's land. However, petitioner failed to accomplish her
task because it was found out that the land is government property. When petitioner failed to Hence, this petition which raises the following issues:
return the P50,000, respondent sued her for estafa. Respondent also filed an administrative
complaint for grave misconduct or conduct unbecoming a public officer against petitioner before 1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a
the Office of the Ombudsman. government employee or where the act complained of is not related to the performance of
official duty?
The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and suspended
her from office for six months without pay. The Ombudsman ruled that petitioner failed to abide by 2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable
the standard set in Section 4(b) of R.A. No. 6713 and deprived the government of the benefit of despite the dismissal of the estafa case?
committed service when she embarked on her private interest to help respondent secure a
certificate of title over the latter's land.[4]
3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of
mitigating circumstances?[8]
Upon motion for reconsideration, the Ombudsman, in an Order[5] dated March 15, 2004, reduced
the penalty to three months suspension without pay. According to the Ombudsman, petitioner's
acceptance of respondent's payment created a perception that petitioner is a fixer. Her act fell
short of the standard of personal conduct required by Section 4(b) of R.A. No. 6713 that public Petitioner insists that where the act complained of is not related to the performance of official duty,
officials shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of the Ombudsman has no jurisdiction. Petitioner also imputes grave abuse of discretion on the part
undue patronage. The Ombudsman held: of the CA for holding her administratively liable. She points out that the estafa case was
dismissed upon a finding that she was not guilty of fraud or deceit, hence misconduct cannot be
x xx [petitioner] admitted x xx that she indeed received the amount of P50,000.00 from the attributed to her. And even assuming that she is guilty of misconduct, she is entitled to the benefit
[respondent] and even contracted Engr. LiberatoPatromo, alleged Licensed Geodetic Engineer to of mitigating circumstances such as the fact that this is the first charge against her in her long
do the surveys. years of public service.[9]
Respondent counters that the issues raised in the instant petition are the same issues that the CA especially the poor and the underprivileged. They shall at all times respect the rights of others,
correctly resolved.[10] She also alleges that petitioner failed to observe the mandate that public and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public
office is a public trust when she meddled in an affair that belongs to another agency and received order, public safety and public interest. They shall not dispense or extend undue favors on
an amount for undelivered work.[11] account of their office to their relatives whether by consanguinity or affinity except with respect to
appointments of such relatives to positions considered strictly confidential or as members of their
We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add, personal staff whose terms are coterminous with theirs.
however, that petitioner is guilty of conduct unbecoming a public officer.
(d) Political neutrality. - Public officials and employees shall provide service to everyone without
On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent's unfair discrimination and regardless of party affiliation or preference.
complaint against petitioner although the act complained of involves a private deal between
them.[12] Section 13(1),[13] Article XI of the 1987 Constitution states that the Ombudsman can (e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous,
investigate on its own or on complaint by any person any act or omission of any public official or and adequate service to the public. Unless otherwise provided by law or when required by the
employee when such act or omission appears to be illegal, unjust, or improper. Under Section public interest, public officials and employees shall provide information on their policies and
16[14] of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the procedures in clear and understandable language, ensure openness of information, public
Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed consultations and hearings whenever appropriate, encourage suggestions, simplify and
by any public officer or employee during his/her tenure. Section 19[15] of R.A. No. 6770 also states systematize policy, rules and procedures, avoid red tape and develop an understanding and
that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which appreciation of the socioeconomic conditions prevailing in the country, especially in the depressed
are unfair or irregular. Thus, even if the complaint concerns an act of the public official or rural and urban areas.
employee which is not service-connected, the case is within the jurisdiction of the Ombudsman.
The law does not qualify the nature of the illegal act or omission of the public official or employee (f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the
that the Ombudsman may investigate. It does not require that the act or omission be related to or Republic and to the Filipino people, promote the use of locally-produced goods, resources and
be connected with or arise from the performance of official duty. Since the law does not technology and encourage appreciation and pride of country and people. They shall endeavor to
distinguish, neither should we.[16] maintain and defend Philippine sovereignty against foreign intrusion.

On the second issue, it is wrong for petitioner to say that since the estafa case against her was (g) Commitment to democracy. - Public officials and employees shall commit themselves to the
dismissed, she cannot be found administratively liable. It is settled that administrative cases may democratic way of life and values, maintain the principle of public accountability, and manifest by
proceed independently of criminal proceedings, and may continue despite the dismissal of the deed the supremacy of civilian authority over the military. They shall at all times uphold the
criminal charges.[17] Constitution and put loyalty to country above loyalty to persons or party.

For proper consideration instead is petitioner's liability under Sec. 4(A)(b) of R.A. No. 6713. (h) Simple living. - Public officials and employees and their families shall lead modest lives
appropriate to their positions and income. They shall not indulge in extravagant or ostentatious
We quote the full text of Section 4 of R.A. No. 6713: display of wealth in any form.

SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and (B) The Civil Service Commission shall adopt positive measures to promote (1) observance of
employee shall observe the following as standards of personal conduct in the discharge and these standards including the dissemination of information programs and workshops authorizing
execution of official duties: merit increases beyond regular progression steps, to a limited number of employees recognized
by their office colleagues to be outstanding in their observance of ethical standards; and (2)
(a) Commitment to public interest. - Public officials and employees shall always uphold the public continuing research and experimentation on measures which provide positive motivation to public
interest over and above personal interest. All government resources and powers of their officials and employees in raising the general level of observance of these standards.
respective offices must be employed and used efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and revenues. Both the Ombudsman and CA found the petitioner administratively liable for violating Section
4(A)(b) on professionalism. "Professionalism" is defined as the conduct, aims, or qualities that
(b) Professionalism. - Public officials and employees shall perform and discharge their duties characterize or mark a profession. A professional refers to a person who engages in an activity
with the highest degree of excellence, professionalism, intelligence and skill. They shall enter with great competence. Indeed, to call a person a professional is to describe him as competent,
public service with utmost devotion and dedication to duty. They shall endeavor to discourage efficient, experienced, proficient or polished.[18] In the context of Section 4 (A)(b) of R.A. No.
wrong perceptions of their roles as dispensers or peddlers of undue patronage. 6713, the observance of professionalism also means upholding the integrity of public office by
endeavoring "to discourage wrong perception of their roles as dispensers or peddlers of undue
(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all patronage." Thus, a public official or employee should avoid any appearance of
times. They must act with justness and sincerity and shall not discriminate against anyone, impropriety affecting the integrity of government services. However, it should be noted that
Section 4(A) enumerates the standards of personal conduct for public officers with reference to (e) Responsiveness to the public. - x xx
"execution of official duties."
(f) Nationalism and patriotism. - x xx
In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of
professionalism by devoting herself on her personal interest to the detriment of her solemn public (g) Commitment to democracy. - x xx
duty. The Ombudsman said that petitioner's act deprived the government of her committed
service because the generation of a certificate of title was not within her line of public service. In (h) Simple living. - x xx
denying petitioner's motion for reconsideration, the Ombudsman said that it would have been
sufficient if petitioner just referred the respondent to the persons/officials incharge of the On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative
processing of the documents for the issuance of a certificate of title. While it may be true that she disciplinary action, as follows:
did not actually deal with the other government agencies for the processing of the titles of the
subject property, petitioner's act of accepting the money from respondent with the assurance that RULE X. GROUNDS FOR ADMINISTRATIVE
she would work for the issuance of the title is already enough to create a perception that she is a DISCIPLINARY ACTION
fixer.
SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under
On its part, the CA rejected petitioner's argument that an isolated act is insufficient to create those existing laws, the acts and omissions of any official or employee, whether or not he holds office or
"wrong perceptions" or the "impression of influence peddling." It held that the law enjoins public employment in a casual, temporary, hold-over, permanent or regular capacity, declared unlawful
officers, at all times to respect the rights of others and refrain from doing acts contrary to law, good or prohibited by the Code, shall constitute grounds for administrative disciplinary action, and
customs, public order, public policy, public safety and public interest. Thus, it is not the plurality of without prejudice to criminal and civil liabilities provided herein, such as:
the acts that is being punished but the commission of the act itself.
(a) Directly or indirectly having financial and material interest in any transaction requiring the
Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as broad approval of his office. x xx.
enough to apply even to private transactions that have no connection to the duties of one's office.
We hold, however, that petitioner may not be penalized for violation of Section 4 (A)(b) of R.A. No. (b) Owning, controlling, managing or accepting employment as officer, employee, consultant,
6713. The reason though does not lie in the fact that the act complained of is not at all related to counsel, broker, agent, trustee, or nominee in any private enterprise regulated, supervised or
petitioner's discharge of her duties as department head of the Population Commission. licensed by his office, unless expressly allowed by law;

In addition to its directive under Section 4(B), Congress authorized [19] the Civil Service
Commission (CSC) to promulgate the rules and regulations necessary to implement R.A. No.
6713. Accordingly, the CSC issued the Rules Implementing the Code of Conduct and Ethical
Standards for Public Officials and Employees (hereafter, Implementing Rules). Rule V of the
Implementing Rules provides for an Incentive and Rewards System for public officials and
employees who have demonstrated exemplary service and conduct on the basis of their
observance of the norms of conduct laid down in Section 4 of R.A. No. 6713, to wit:
(c) Engaging in the private practice of his profession unless authorized by the Constitution, law or
regulation, provided that such practice will not conflict or tend to conflict with his official functions;
(d) Recommending any person to any position in a private enterprise which has a regular or
pending official transaction with his office, unless such recommendation or referral is mandated by
(1) law, or (2) international agreements, commitment and obligation, or as part of the functions of
his office;

RULE V. INCENTIVES AND REWARDS SYSTEM x xxx

SECTION 1. Incentives and rewards shall be granted officials and employees who have (e) Disclosing or misusing confidential or classified information officially known to him by reason of
demonstrated exemplary service and conduct on the basis of their observance of the norms of his office and not made available to the public, to further his private interests or give undue
conduct laid down in Section 4 of the Code, namely: advantage to anyone, or to prejudice the public interest;

(a) Commitment to public interest. - x xx (f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or
anything of monetary value which in the course of his official duties or in connection with any
(b) Professionalism. - x xx operation being regulated by, or any transaction which may be affected by the functions of, his
office. x xx.
(c) Justness and sincerity. - x xx
x xxx
(d) Political neutrality. - x xx
(g) Obtaining or using any statement filed under the Code for any purpose contrary to morals or
public policy or any commercial purpose other than by news and communications media for
dissemination to the general public; Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A. No. 6713 in
that case.
(h) Unfair discrimination in rendering public service due to party affiliation or preference;
We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse
(i) Disloyalty to the Republic of the Philippines and to the Filipino people; the CA and Ombudsman that petitioner is administratively liable under Section 4(A)(b) of R.A. No.
6713. In so ruling, we do no less and no more than apply the law and its implementing rules
(j) Failure to act promptly on letters and request within fifteen (15) days from receipt, except as issued by the CSC under the authority given to it by Congress. Needless to stress, said rules
otherwise provided in these Rules; partake the nature of a statute and are binding as if written in the law itself. They have the force
and effect of law and enjoy the presumption of constitutionality and legality until they are set aside
(k) Failure to process documents and complete action on documents and papers within a with finality in an appropriate case by a competent court.[21]
reasonable time from preparation thereof, except as otherwise provided in these Rules;
But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action
(l) Failure to attend to anyone who wants to avail himself of the services of the office, or to act under R.A. No. 6713?
promptly and expeditiously on public personal transactions;
We also rule in the negative.
(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of business
interests and financial connections; and Misconduct is a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer. The misconduct is grave if it involves any
(n) Failure to resign from his position in the private business enterprise within thirty (30) days from of the additional elements of corruption, willful intent to violate the law or to disregard established
assumption of public office when conflict of interest arises, and/or failure to divest himself of his rules, which must be proved by substantial evidence. Otherwise, the misconduct is only
shareholdings or interests in private business enterprise within sixty (60) days from such simple.[22] Conversely, one cannot be found guilty of misconduct in the absence of substantial
assumption of public office when conflict of interest arises: Provided, however, that for those who evidence. In one case, we affirmed a finding of grave misconduct because there was substantial
are already in the service and a conflict of interest arises, the official or employee must either evidence of voluntary disregard of established rules in the procurement of supplies as well as of
resign or divest himself of said interests within the periods herein-above provided, reckoned from manifest intent to disregard said rules.[23] We have also ruled that complicity in the transgression
the date when the conflict of interest had arisen. of a regulation of the Bureau of Internal Revenue constitutes simple misconduct only as there was
failure to establish flagrancy in respondent's act for her to be held liable of gross misconduct. [24]
In Domingo v. Office of the Ombudsman,[20] this Court had the occasion to rule that failure to abide On the other hand, we have likewise dismissed a complaint for knowingly rendering an unjust
by the norms of conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its implementing order, gross ignorance of the law, and grave misconduct, since the complainant did not even
rules, is not a ground for disciplinary action, to wit: indicate the particular acts of the judge which were allegedly violative of the Code of Judicial
Conduct.[25]
The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The provision
commands that "public officials and employees shall perform and discharge their duties with the In this case, respondent failed to prove (1) petitioner's violation of an established and definite rule
highest degree of excellence, professionalism, intelligence and skill." Said provision merely of action or unlawful behavior or gross negligence, and (2) any of the aggravating elements of
enunciates "professionalism as an ideal norm of conduct to be observed by public servants, in corruption, willful intent to violate a law or to disregard established rules on the part of petitioner. In
addition to commitment to public interest, justness and sincerity, political neutrality, fact, respondent could merely point to petitioner's alleged failure to observe the mandate that
responsiveness to the public, nationalism and patriotism, commitment to democracy and simple public office is a public trust when petitioner allegedly meddled in an affair that belongs to another
living. Following this perspective, Rule V of the Implementing Rules of R.A. No. 6713 adopted by agency and received an amount for undelivered work.
the Civil Service Commission mandates the grant of incentives and rewards to officials and
employees who demonstrate exemplary service and conduct based on their observance of the True, public officers and employees must be guided by the principle enshrined in the Constitution
norms of conduct laid down in Section 4. In other words, under the mandated incentives and that public office is a public trust. However, respondent's allegation that petitioner meddled in an
rewards system, officials and employees who comply with the high standard set by law would be affair that belongs to another agency is a serious but unproven accusation. Respondent did not
rewarded. Those who fail to do so cannot expect the same favorable treatment. However, the even say what acts of interference were done by petitioner. Neither did respondent say in which
Implementing Rules does not provide that they will have to be sanctioned for failure to government agency petitioner committed interference. And causing the survey of respondent's
observe these norms of conduct. Indeed, Rule X of the Implementing Rules affirms as land can hardly be considered as meddling in the affairs of another government agency by
grounds for administrative disciplinary action only acts "declared unlawful or prohibited by petitioner who is connected with the Population Commission. It does not show that petitioner
the Code." Rule X specifically mentions at least twenty three (23) acts or omissions as made an illegal deal or any deal with any government agency. Even the Ombudsman has
grounds for administrative disciplinary action. Failure to abide by the norms of conduct recognized this fact. The survey shows only that petitioner contracted a surveyor. Respondent
under Section 4(b) of R.A. No. 6713 is not one of them.(Emphasis supplied.) said nothing on the propriety or legality of what petitioner did. The survey shows that petitioner
also started to work on her task under their agreement. Thus, respondent's allegation that
petitioner received an amount for undelivered work is not entirely correct. Rather, petitioner failed
to fully accomplish her task in view of the legal obstacle that the land is government property.
However, the foregoing does not mean that petitioner is absolved of any administrative liability.
But first, we need to modify the CA finding that petitioner demanded the amount of P50,000 from
respondent because respondent did not even say that petitioner demanded money from her. [26]
We find in the allegations and counter-allegations that respondent came to petitioner's house in
Biñan, Laguna, and asked petitioner if she can help respondent secure a title to her land which
she intends to sell. Petitioner agreed to help. When respondent asked about the cost, petitioner
said P150,000 and accepted P50,000 from respondent to cover the initial expenses. [27]
suspension is proper. In imposing said fine, we have considered as a mitigating circumstance
petitioner's 37 years of public service and the fact that this is the first charge against her.[33]
Section 53[34] of the Revised Uniform Rules on Administrative Cases in the Civil Service provides
that mitigating circumstances such as length of service shall be considered. And since petitioner
has earlier agreed to return the amount of P50,000 including interest, we find it proper to order her
to comply with said agreement. Eventually, the parties may even find time to rekindle their
friendship.
WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals and
its Resolution dated June 8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated
January 6, 2004 and Order dated March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F,
and ENTER a new judgment as follows:

We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her a FINE of
aborted transaction, petitioner still failed to return the amount she accepted. As aptly stated by the P15,000.00 to be paid at the Office of the Ombudsman within five (5) days from finality of this
Ombudsman, if petitioner was persistent in returning the amount of P50,000 until the preliminary Decision.
investigation of the estafa case on September 18, 2003,[28] there would have been no need for the
parties' agreement that petitioner be given until February 28, 2003 to pay said amount including We also ORDER petitioner to return to respondent the amount of P50,000.00 with interest thereon
interest. Indeed, petitioner's belated attempt to return the amount was intended to avoid possible at 12% per annum from March 2001 until the said amount shall have been fully paid.
sanctions and impelled solely by the filing of the estafa case against her.
With costs against the petitioner.
For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming
a public officer. In Joson v. Macapagal, we have also ruled that the respondents therein were SO ORDERED.
guilty of conduct unbecoming of government employees when they reneged on their promise to
have pertinent documents notarized and submitted to the Government Service Insurance System
after the complainant's rights over the subject property were transferred to the sister of one of the
respondents.[29] Recently, in Assistant Special Prosecutor III Rohermia J. Jamsani-Rodriguez v.
Justices Gregory S. Ong, et al., we said that unbecoming conduct means improper performance
and applies to a broader range of transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method.[30]

This Court has too often declared that any act that falls short of the exacting standards for public
office shall not be countenanced.[31] The Constitution categorically declares as follows:

SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.[32]

Petitioner should have complied with her promise to return the amount to respondent after failing
to accomplish the task she had willingly accepted. However, she waited until respondent sued her
for estafa, thus reinforcing the latter's suspicion that petitioner misappropriated her money.
Although the element of deceit was not proven in the criminal case respondent filed against the
petitioner, it is clear that by her actuations, petitioner violated basic social and ethical norms in her
private dealings. Even if unrelated to her duties as a public officer, petitioner's transgression could
erode the public's trust in government employees, moreso because she holds a high position in
the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-
Rodriguez. Under the circumstances of this case, a fine of P15,000 in lieu of the three months
 Republic of the Philippines Pacheo questioned the reassignment through her Letter dated May 9, 2002[4] addressed
Supreme Court to Rene G. Banez, then Commissioner of Internal Revenue (CIR). She complained that the
Manila transfer would mean economic dislocation since she would have to spend ₱200.00 on daily travel
expenses or approximately ₱4,000.00 a month. It would also mean physical burden on her part as
EN BANC
she would be compelled to wake up early in the morning for her daily travel from Quezon
City to San Fernando, Pampanga, and to return home late at night from San Fernando, Pampanga
REPUBLIC OF THE PHILIPPINES, G.R. No. 178021 to Quezon City. She was of the view that that her reassignment was merely intended to harass
represented by the CIVIL SERVICE and force her out of the BIR in the guise of exigencies of the revenue service. In sum, she
COMMISSION, considered her transfer from Quezon City to Pampanga as amounting to a constructive dismissal.
Petitioner,
Promulgated:
Due to the then inaction of the BIR, Pacheo filed a complaint[5] dated May 30, 2002,
- versus - January 25, 2012
before the CSC- National Capital Region (CSC-NCR), praying for the nullification of RTAO No. 25-
2002. In its July 22, 2002 Order,[6] the CSC-NCR treated Pacheos Complaint as an appeal and
MINERVA M.P. PACHEO, dismissed the same, without prejudice, for failure to comply with Sections 73 and 74 of Rule V(b)
Respondent. of the Uniform Rules on Administrative Cases in the Civil Service.[7]

x -------------------------------------------------------------------------------------------------------x
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court
filed by petitioner Republic of the Philippines, represented by the Office of the Solicitor
General (OSG), which assails the February 22, 2007 Decision[1] and the May 15, 2007
Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 93781. The CA reversed the
November 21, 2005 Resolution of the Civil Service Commission (CSC) declaring the re-
assignment of respondent Minerva M.P. Pacheos (Pacheo) not valid and ordering her
reinstatement to her original station but without backwages under the principle of no work, no pay.
The Facts
Pacheo was a Revenue Attorney IV, Assistant Chief of the Legal Division of the Bureau of
Internal Revenue (BIR) in Revenue Region No. 7 (RR7), Quezon City.
On May 7, 2002, the BIR issued Revenue Travel Assignment Order (RTAO) No. 25-
2002,[3] ordering the reassignment of Pacheo as Assistant Chief, Legal Division from RR7
in Quezon City to RR4 in San Fernando, Pampanga. The BIR cited exigencies of the revenue
service as basis for the issuance of the said RTAO.
In its Letter-reply[8] dated September 13, 2002, the BIR, through its Deputy Commissioner
for Legal and Inspection Group, Edmundo P. Guevara (Guevara), denied Pacheos protest for lack
of merit. It contended that her reassignment could not be considered constructive dismissal as she
maintained her position as Revenue Attorney IV and was designated as Assistant Chief of Legal
Division. It emphasized that her appointment to the position of Revenue Attorney IV was without a
specific station. Consequently, she could properly be reassigned from one organizational unit to
another within the BIR. Lastly, she could not validly claim a vested right to any specific station, or a
violation of her right to security of tenure.
Not in conformity with the ruling of the BIR, Pacheo appealed her case before the CSC.
On November 21, 2005, the CSC issued Resolution No. 051697[9] granting Pacheos
appeal, the dispositive portion of which reads:
WHEREFORE, the instant appeal of Minerva M.P. Pacheo is
hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment
Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the
Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby
declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her
original station. This Commission, however rules and so holds that the
withholding by the BIR of Pacheos salary for the period she did not report to work
is justified.
The CSCRO No. III is directed to monitor the implementation of this
Resolution.

In granting Pacheos appeal, the CSC explained:


On the second issue, this Commission finds merit in appellants
contention that her reassignment in not valid.
Of pertinent application thereto is Rule III, Section 6 of CSC
Memorandum Circular No. 40, series of 1998, dated December 14,
1998, which provides:
Section 6.Other Personnel Movements. The following
personnel movements which will not require issuance of an
appointment shall nevertheless require an office order by duly
authorized official.
a. Reassignment Movement of an employee from one
organizational unit to another in the same department or agency
which does not involve reduction in rank, status or salary. If
reassignment is done without consent of the employee being
reassigned it shall be allowed for a maximum period of one
year. Reassignment is presumed to be regular and made in the
interest of public service unless proven otherwise or it
constitutes constructive dismissal.
No assignment shall be undertaken if done
indiscriminately or whimsically because the law is not intended
as a convenient shield for the appointing/ disciplining authority
to harass or oppress a subordinate on the pretext of advancing
and promoting public interest.
Reassignment of small salaried employee is not
permissible if it causes significant financial dislocation.
Although reassignment is a management prerogative, the same must be
done in the exigency of the service without diminution in rank, status and salary
on the part of the officer or employee being temporarily reassigned.
Reassignment of small salaried employees, however is not allowed if it will cause
significant financial dislocation to the employee reassigned. Otherwise the
Commission will have to intervene.
The primary purpose of emphasizing small salaried employees in the
foregoing rule is to protect the rank and file employees from possible abuse by
the management in the guise of transfer/reassignment. The Supreme Court
in Alzate v. Mabutas, (51 O.G. 2452) ruled:
x xx [T]he protection against invalid transfer is
especially needed by lower ranking employees. The Court
emphasized this need when it ruled that officials in the
unclassified service, presidential appointees, men in the
government set up occupy positions in the higher echelon
should be entitled to security of tenure, unquestionable a
lesser sol[ci]itude cannot be meant for the little men, that great
mass of Common underprivileged employees-thousand there
are of them in the lower bracket, who generally are without
connections and who pin their hopes of advancement on the
merit system instituted by our civil service law.
In other words, in order to be embraced in the term small-salaried
employees, the latter must belong to the rank and file; and, his/her salary would
be significantly reduced by virtue of the transfer/reassignment. Rank and file was
categorized as those occupying the position of Division Chief and below,
pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991.
The facts established on record show that Pacheo belongs to the rank
and file receiving an average monthly salary of Twenty Thousand Pesos
(₱20,000.00) under the salary standardization law and a monthly take home pay
of Fourteen Thousand Pesos (₱14,000.00). She has to spend around Four
Thousand Pesos (₱4,000.00) a month for her transportation expenses as a
consequence of her reassignment, roughly twenty eight percent (28%) of her
monthly take home pay. Clearly, Pacheos salary shall be significantly reduced as
a result of her reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:
Anore, a lowly salaried employee, was reassigned to
an isolated island 15 kilometers away from her original place of
assignment. She has to travel by boat with only one trip a day to
report to her new place of assignment in an office without any
facilities, except its bare structure. Worst, the municipality did
not provide her with transportation allowance. She was forced to
be separated from her family, look for a boarding house where
she can stay while in the island and spend for her board and
lodging. The circumstances surrounding Anores reassignment
is exactly the kind of reassignment that is being frowned upon
by law.
 This Commission, however, rules and so holds that the withholding by
the BIR of her salaries is justified as she is not entitled thereto since she is
deemed not to have performed any actual work in the government on the
principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original station
without any right to claim back salary as she did not report to work either at her
new place of assignment or at her original station.[10] [Emphases in the original]
Still not satisfied, Pacheo moved for reconsideration. She argued that the CSC erred in
not finding that she was constructively dismissed and, therefore, entitled to back salary.
On March 7, 2006, the CSC issued Resolution No. 060397[11] denying Pacheos motion for
reconsideration.
Undaunted, Pacheo sought recourse before the CA via a petition for review.
In its February 22, 2007 Decision, the CA reversed the CSC Resolution and ruled in favor
of Pacheo, the fallo of which states:
WHEREFORE, the petition is GRANTED. Resolution nos.
051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively,
of the Civil Service Commission are REVERSED and SET ASIDE. A new
judgment is hereby entered finding petitioner to have been constructively
dismissed and ordering her immediate reinstatement with full backwages and
benefits.
SO ORDERED.[12]
In setting aside CSC Resolution Nos. 051697 and 060397, the CA held that:
While this Court agrees that petitioners reassignment was not valid considering
that a diminution in salary is enough to invalidate such reassignment, We cannot
agree that the latter has not been constructively dismissed as a result thereof.
It is well to remember that constructive dismissal does not always involve
forthright dismissal or diminution in rank, compensation, benefits and
privileges. For an act of clear discrimination, insensibility, or disdain by an
employer may become so unbearable on the part of the employee that it could
foreclose any choice by him except to forgo his continued employment.
The management prerogative to transfer personnel must be exercised without
grave abuse of discretion and putting to mind the basic elements of justice and
fair play. The employer must be able to show that the transfer is not
unreasonable, inconvenient, or prejudicial to the employee.
In this case, petitioners reassignment will result in the reduction of her salary, not
to mention the physical burden that she would suffer in waking up early in the
morning to travel daily from Quezon City to San Fernando, Pampanga and in
coming home late at night.
Clearly, the insensibility of the employer is deducible from the foregoing
circumstances and petitioner may have no other choice but to forego her
continued employment.
Moreover, it would be inconsistent to hold that the reassignment was not valid
due to the significant reduction in petitioners salary and then rule that there is no
constructive dismissal just because said reduction in salary will not render
petitioner penniless if she will report to her new place of assignment. It must be
noted that there is constructive dismissal when the reassignment of an employee
involves a diminution in pay.
Having determined that petitioner has been constructively dismissed as
a result of her reassignment, We shall resolve whether or not she is entitled to
backwages.
In denying petitioners claim for backwages, the CSC held:
This Commission, however, rules and so holds that the
withholding by the BIR of her salaries is justified as she is not
entitled thereto since she is deemed not to have performed any
actual work in the government on the principle of no work no
pay.
Accordingly, Pacheo should now be reinstated to her original
station without any right to claim back salary as she did not
report for work either at her new place of assignment or at her
original station.
Pacheo, while belonging to the rank-and-file employees, is
holding a responsible position as an Assistant Division Chief,
who could not just abandon her duties merely because she
protested her re-assignment and filed an appeal afterwards.
We do not agree.
If there is no work performed by the employee there can be no wage or
pay, unless of course the laborer was able, willing and ready to work but was
illegally locked out, dismissed or suspended. The No work, no pay principle
contemplates a nowork situation where the employees voluntarily absent
themselves.
In this case, petitioner was forced to forego her continued employment
and did not just abandon her duties. In fact, she lost no time in protesting her
reassignment as a form of constructive dismissal. It is settled that the filing of a
complaint for illegal dismissal is inconsistent with a charge of abandonment. The
filing of the complaint is proof enough of his desire to return to work, thus
negating any suggestion of abandonment.
Neither do we agree with the OSG when it opined that:
No one in the Civil Service should be allowed to decide on
whether she is going to accept or not any work dictated upon by
the exigency of the service.One should consider that public
office is a public trust and that the act of respondent CIR enjoys
the presumption of regularity. To uphold the failure of
respondent to heed the RTAO would result in chaos. Every
employee would put his or her vested interest or personal
opinion over and above the smooth functioning of the
bureaucracy.
Security of tenure is a right of paramount value as recognized and
guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.
The State shall afford full protection to labor, xxx and promote
full employment and equality of employment opportunities
for all. It shall guarantee the rights of all workers to xxx security
of tenure xxx
Such constitutional right should not be denied on mere speculation of any similar
unclear and nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSGs
opinion that when the transfer is motivated solely by the interest of the service of
such act cannot be considered violative of the Constitution, thus:
We do not agree to this view. While temporary transfers
or assignments may be made of the personnel of a bureau or
department without first obtaining the consent of the employee
concerned within the scope of Section 79 (D) of the
Administrative Code which party provides that The Department
Head also may, from time to time, in the interest of the service,
change the distribution among the several Bureaus and offices
of his Department of the employees or subordinates authorized
by law, such cannot be undertaken when the transfer of the
employee is with a view to his removal. Such cannot be done
without the consent of the employee. And if the transfer is
resorted to as a scheme to lure the employee away from his
permanent position, such attitude is improper as it would in
effect result in a circumvention of the prohibition which
safeguards the tenure of office of those who are in the civil
service. It is not without reason that this Court made the
following observation:
To permit circumvention of the constitutional prohibition in
question by allowing removal from office without lawful cause, in
the form or guise of transfers from one office to another, or from
one province to another, without the consent of the transferee,
would blast the hopes of these young civil service officials and
career men and women, destroy their security and tenure of
office and make for a subservient, discontented and inefficient
civil service force that sways with every political wind that blows
and plays up to whatever political party is in the saddle. That
would be far from what the framers of our Constitution
contemplated and desired. Neither would that be our concept of
a free and efficient Government force, possessed of self-respect
and reasonable ambition.
Clearly, the principle of no work, no pay does not apply in this case. As
held in Neeland v. Villanueva, Jr:
We also cannot deny back salaries and other economic
benefits on the ground that respondent Clerk of Court did not
work. For the principle of no work, no pay does not apply when
the employee himself was forced out of job. Xxx Indeed, it is not
always true that back salaries are paid only when work is done.
Xxx For another, the poor employee could offer no work since
he was forced out of work. Thus, to always require complete
exoneration or performance of work would ultimately leave the
 dismissal uncompensated no matter how grossly
disproportionate the penalty was.Clearly, it does not serve
justice to simply restore the dismissed employee to his position
and deny him his claim for back salaries and other economic
benefits on these grounds. We would otherwise be serving
justice in halves.
An illegally dismissed government employee who is later ordered
reinstated is entitled to back wages and other monetary benefits from the time of
his illegal dismissal up to his reinstatement. This is only fair and sensible
because an employee who is reinstated after having been illegally dismissed is
considered as not having left his office and should be given a comparable
compensation at the time of his reinstatement.
When a government official or employee in the classified civil service
had been illegally dismissed, and his reinstatement had later been ordered, for all
legal purposes he is considered as not having left his office, so that he is entitled
to all the rights and privileges that accrue to him by virtue of the office that he
held.[13]
The CSC moved for reconsideration but its motion was denied by the CA in its May 15,
2007 Resolution.
Hence, this petition.
THE ISSUES
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN
DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND
ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENTS
REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS
IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER
SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM
CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A
RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER
REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN
SAN FERNANDO, PAMPANGA.[14]
In her Memorandum,[15] Pacheo asserts that RTAO No. 25-2002, on the pretense of the exigencies
of the revenue service, was solely meant to harass her and force her to resign. As a result of her
invalid reassignment, she was constructively dismissed and, therefore, entitled to her back
salaries and monetary benefits from the time of her illegal dismissal up to her reinstatement.
In its own Memorandum,[16] the CSC, through the OSG, argues that constructive dismissal is not
applicable in this case because it was Pacheo herself who adamantly refused to report for work
either in her original station or new place of assignment in clear violation of Section 24 (f) of
Presidential Decree (PD) No. 807.[17] Citing jurisprudence,[18] the CSC avers that the RTAO is
immediately executory, unless otherwise ordered by the CSC. Therefore, Pacheo should have first
reported to her new place of assignment and then appealed her case to the CSC if she indeed
believed that there was no justification for her reassignment. Since Pacheo did not report for work
at all, she is not entitled to backwages following the principle of no work, no pay.
THE COURTS RULING
The petition fails to persuade.
It appears undisputed that the reassignment of Pacheo was not valid. In its memorandum,
the OSG initially argues for the validity of RTAO No. 25-2002 authorizing Pacheos reassignment
from Quezon City to San Fernando, Pampanga. Later, however, it specifically prays for the
reinstatement of CSC Resolution Nos. 051697 and 060397, which categorically declared RTAO
No. 25-2002 as not valid. In seeking such relief, the OSG has effectively accepted the finding of
the CSC, as affirmed by the CA, that Pacheos reassignment was indeed invalid. Since the issue of
Pacheos reassignment is already settled, the Court finds it futile to pass upon the same at this
point.
The question that remains to be resolved is whether or not Pacheos assignment
constitutes constructive dismissal and, thus, entitling her to reinstatement and backwages. Was
Pacheo constructively dismissed by reason of her reassignment?
The Court agrees with the CA on this point.
While a temporary transfer or assignment of personnel is permissible even without the
employee's prior consent, it cannot be done when the transfer is a preliminary step toward his
removal, or a scheme to lure him away from his permanent position, or when it is designed to
indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent
the provision which safeguards the tenure of office of those who are in the Civil Service. [19]
Significantly, Section 6, Rule III of CSC Memorandum Circular No. 40, series of
1998, defines constructive dismissal as a situation when an employee quits his work because of
the agency heads unreasonable, humiliating, or demeaning actuations which render continued
work impossible. Hence, the employee is deemed to have been illegally dismissed. This may
occur although there is no diminution or reduction of salary of the employee. It may be a transfer
from one position of dignity to a more servile or menial job.
The CSC, through the OSG, contends that the deliberate refusal of Pacheo to report for work
either in her original station in Quezon City or her new place of assignment in San Fernando,
Pampanga negates her claim of constructive dismissal in the present case being in violation of
Section 24 (f) of P.D. 807 [now Executive Order (EO) 292, Book V, Title 1, Subtitle A, Chapter 5,
Section 26 (6)].[20] It further argues that the subject RTAO was immediately executory, unless
otherwise ordered by the CSC. It was, therefore, incumbent on Pacheo to have reported to her
new place of assignment and then appealed her case to the CSC if she indeed believed that there
was no justification for her reassignment.
Anent the first argument of CSC, the Court cannot sustain the proposition. It was legally
impossible for Pacheo to report to her original place of assignment in Quezon City considering that
the subject RTAO No. 25-2002 also reassigned Amado Rey B. Pagarigan (Pagarigan) as
Assistant Chief, Legal Division, from RR4, San Fernando, Pampanga to RR7, Quezon City, the
very same position Pacheo formerly held. The reassignment of Pagarigan to the same position
palpably created an impediment to Pacheos return to her original station.
The Court finds Itself unable to agree to CSCs argument that the subject RTAO was
immediately executory. The Court deems it necessary to distinguish between a detail and
reassignment, as they are governed by different rules.
A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A,
Chapter 5, Section 26 (6), thus:
(6) Detail. A detail is the movement of an employee from one agency to
another without the issuance of an appointment and shall be allowed, only for a
limited period in the case of employees occupying professional, technical and
scientific positions. If the employee believes that there is no justification for the
detail, he may appeal his case to the Commission. Pending appeal, the decision
to detail the employee shall be executory unless otherwise ordered by the
Commission. [Underscoring supplied]
On the other hand, a reassignment is defined and governed by E.O. 292, Book V, Title 1,
Subtitle A, Chapter 5, Section 26 (7), thus:
(7) Reassignment.An employee may be reassigned from one organizational unit
to another in the same agency; Provided, That such reassignment shall not
involve a reduction in rank, status or salaries. [Underscoring supplied]
The principal distinctions between a detail and reassignment lie in the place where the
employee is to be moved and in its effectivity pending appeal with the CSC. Based on the
definition, a detail requires a movement from one agency to another while a reassignment requires
a movement within the same agency. Moreover, pending appeal with the CSC, an order to detail is
immediately executory, whereas a reassignment order does not become immediately effective.
In the case at bench, the lateral movement of Pacheo as Assistant Chief, Legal Division
from Quezon City to San Fernando, Pampanga within the same agency is undeniably a
reassignment. The OSG posits that she should have first reported to her new place of assignment
and then subsequently question her reassignment. It is clear, however, from E.O. 292, Book V,
Title 1, Subtitle A, Chapter 5, Section 26 (7) that there is no such duty to first report to the new
place of assignment prior to questioning an alleged invalid reassignment imposed upon an
employee. Pacheo was well within her right not to report immediately to RR4, San Fernando,
Pampanga, and to question her reassignment.
Reassignments involving a reduction in rank, status or salary violate an employees
security of tenure, which is assured by the Constitution, the Administrative Code of 1987, and the
Omnibus Civil Service Rules and Regulations. Security of tenure covers not only employees
removed without cause, but also cases of unconsented transfers and reassignments, which are
tantamount to illegal/constructive removal.[21]
The Court is not unaware that the BIR is authorized to assign or reassign internal revenue officers
and employees as the exigencies of service may require. This authority of the BIR, however,
should be prudently exercised in accordance with existing civil service rules.
Having ruled that Pacheo was constructively dismissed, is she entitled to reinstatement
and back wages? The Court agrees with the CA that she is entitled to reinstatement, but finds
Itself unable to sustain the ruling that she is entitled to full back wages and benefits. It is a settled
jurisprudence[22] that an illegally dismissed civil service employee is entitled to back salaries but
limited only to a maximum period of five (5) years, and not full back salaries from his illegal
dismissal up to his reinstatement.

WHEREFORE, the petition is DENIED. The assailed February 22, 2007 Decision
and May 15, 2007 Resolution of the Court of Appeals, in CA-G.R. SP No. 93781, are
hereby AFFIRMED with MODIFICATION that respondent Minerva M.P. Pacheo is hereby ordered
reinstated without loss of seniority rights but is only entitled to the payment of back salaries
corresponding to five (5) years from the date of her invalid reassignment on May 7, 2002.

SO ORDERED.