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FRANCISCO A. TAN vs. PEDRO M.

GIMENEZ, as Auditor General, and MARTIN AGUILAR, J


R., as Acting Secretary of Education
G.R. No. L-12525; February 19, 1960
Facts: The petitioner was head teacher in Habuhab Barrio School. In a complaint
filed with the Bureau of Civil Service, he was charged with gross misconduct fo
r an immoral act. The Commissioner of Civil Service found him guilty as charged
and required him to resign from the service, with prejudice to reinstatement in
the teaching service, effective on his last day of duty with pay. He appealed to
the Civil Service Board of Appeals which the latter reversed the decision.
On 14 July 1955 he wrote to the Divisioria Superintendent of Schools of
Leyte requesting payment of back salaries from 6 August 1949 to 12 June 1955. Th
e Director of Public Schools recommended to the Secretary of Education that the
sum of P3,784.57 be paid to the petitioner. Undersecretary of Education disregar
ded the Director's recommendation and denied the petitioner's claim on the groun
d that he was out of the service from 6 August 1949 to 1 March 1951, inclusive,
he having been dismissed by the Commissioner of Civil Service for grave miscondu
ct; that although the decision of the Commissioner was reversed on appeal by the
Civil Service Board of Appeals, payment of back salaries to him during the peri
od of removal from office was a matter of discretion; and that funds were not av
ailable.
Petitioner filed his claim for back salaries with the Auditor General wh
ich letter went to the Secretary of Education who returned it to the Auditor Gen
eral with the comment that the petitioner's removal from office by the Commissio
ner of Civil Service was final and executory. On his second attempt to claim, th
e Secretary only reiterated the decision.
Issue: Whether or not Tan has the right to claim such back wages.
Held: Yes. The decision of the CSC did not become final and executory. The dec
ision of the Civil Service Board of Appeals reversing that of the Commissioner o
f Civil Service and absolving the petitioner from the charge was not reversed or
modified by the President. It, therefore, became the final decision on the peti
tioner's case.
The petitioner's removal from office was not in accordance with law; his
reinstatement became a ministerial duty of the proper authority; and the paymen
t of back salary was merely incidental to reinstatement,
The fact that during the pendency of the petitioner's appeal in the Civi
l Service Board of Appeals, he worked as clerk in the Office of the Provincial T
reasurer of Leyte from 2 March 1951 to 17 February 1955 and received the salary
as such in the total sum of P5,509.63, does not constitute abandonment of his fo
rmer position.
The fact that during the time his appeal was pending and was thus depriv
ed of his office and salary, he sought and found employment in another branch of
the government does not constitute abandonment of his former position. To deny
him the right to collect his back salaries during such period would be tantamoun
t to punishing him after his exoneration from the charge which caused his dismis
sal from the service.