Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 102948 February 2, 1994

JAIME T. PANIS, petitioner,

vs.
CIVIL SERVICE COMMISSION and BELLA V. VELOSO, respondent.

Batiquin & Batiquin Law Office for petitioner.

The Solicitor General for public respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of
Article IX (A) of the Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and
Resolution No. 91-1100 dated September 24, 1991, of the Civil Service Commission. The first Resolution
dismissed petitioner's appeal from the decision of the Regional Office of the Civil Service Commission,
and at the same time, upheld the appointment of respondent Bella V. Veloso to the position of Assistant
Chief of Hospital for Administration of the Cebu City Medical Center (CCMC). The second Resolution
denied the motion for reconsideration of the decision.

I.

The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local
government of Cebu City. Petitioner was employed as Administrative Officer of the Hospital, while
private respondent was Administrative Officer of the City Health Department detailed at the said hospital.

On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of Assistant
Chief of Hospital for Administration of CCMC. Petitioner, a candidate for the said position, promptly
protested the appointment before the Regional Office of the Civil Service Commission (CSC). The CSC
Regional Office, however, indorsed the matter to the Office of the City Mayor, which in turn referred it to
the Office of the City Attorney.

In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed
petitioner's protest and upheld the appointment of private respondent. This dismissal was affirmed by the
CSC Regional Office and later on appeal, by respondent CSC. Hence, the present petition.

II.
Petitioner contends that the appointment of private respondent was made in violation of law, existing civil
service rules and established jurisprudence because (1) the position of Assistant Chief of Hospital for
Administration was not legally created; (2) assuming that it was, there was no qualification standard nor
valid screening procedure; and (3) the seniority and next-in-rank rules were disregarded.

III.

The petition is not impressed with merit.

Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the
charter of the Cebu City Hospital for the purpose of correcting the deficiencies and improving the
performance of said institution. The hospital's name was changed to CCMC, and the departments and
offices therein were reorganized. The Office of Hospital Administrator was created and granted such
powers as were deemed in line with the objectives of the Ordinance.

On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital
Administrator. This appointment was, however, not acted upon by the CSC but returned to the appointing
authority on October 21, 1987 for lack of the screening requirement. On even date, the City Mayor
withdrew private respondent's appointment. The title of Hospital Administrator was later found to be a
misnomer and thus was properly classified by the Joint Commission on Local Government Personnel
Administration as one of Assistant Chief of Hospital for Administration. This classification was
subsequently approved by the Department of Budget Management.

The position of Assistant Chief of Hospital for Administration is the very same position of Hospital
Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was not
extinguished, but the designation thereof merely corrected to reflect the proper classification of the
position under existing rules (Rollo, pp. 78-80). The Office of Assistant Chief of Hospital for
Administration therefore was created and existed in accordance with law.

As a result of the reclassification, candidates to the position, among whom were petitioner and private
respondent, were notified by the Personnel Selection Board (Board) of the screening scheduled on
October 22, 1987. The notice sent petitioner at 9:30 A.M. may have been "too close for comfort to the
10:00 schedule," but the screening was actually reset to the following day, October 23, 1987. Petitioner
however never appeared before the Board. Neither did he appear, despite due notice, at the final selection
process on November 5, 1987.

The fact that private respondent was actually screened and interviewed by the Board does not mean that
her appointment was a fait accompli. The screening was just a stage in the appointment process.

Private respondent and petitioner are college degree holders with three units in Public Administration and
three years experience in Hospital Administration or Health Administration. Indeed, both candidates
possess the minimum qualifications for the position. The determination, however, who among the
qualified candidates should be preferred belongs to the appointing authority. The Mayor of Cebu City, in
the instant case, chose to appoint private respondent.

The argument that petitioner should have been the one appointed because he was next in rank to the
contested position and that he had been with CCMC since 1961 as compared to private respondent, who
joined the hospital in 1986 and only on detail, cannot be upheld.
It is ironic that petitioner is personally interested in the subject position, the creation and validity of which
he himself originally questioned. Be that as it may, the "next in rank" rule specifically applies only in
cases of promotion (Medenilla v. Civil Service Commission, 194 SCRA 278 [1991]; Pineda v. Claudio,
28 SCRA 34 [1969]). The instant controversy, however, involves a new office and a position created in
the course of a valid reorganization. Under the law, a vacancy not filled by promotion may be filled by
transfer of present employees in the government service, by reinstatement, by reemployment of those
separated from the service, and appointment of outsiders who have appropriate civil service eligibility,
but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec. 21 (5); Español v.
Civil Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil Service Commission, supra., at
289-290).

It cannot be said that private respondent was an outsider. Although directly employed by the City Health
Department, she actually worked at the CCMC prior to her appointment to the subject position. Besides,
even, if she was an outsider, the law does not prohibit the employment of persons from the private sector
so long as they have the appropriate civil service eligibility.

Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the
concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the
person occupying the next lower position in the occupational group of the office. What the Civil Service
Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion, the
person holding the position next in rank thereto "shall be considered for promotion" (P.D. 807, Sec. 19
(3); E.O. 292, Bk. V, Sec. 20 (3); Español v. Civil Service Commission, supra; Barrozo v. Civil Service
Commission, 198 SCRA 487 [1991]). In other words, one who is "next in rank" to a vacancy is given
preferential consideration for promotion to the vacant position, but it does nor necessarily follow that he
alone and no one else can be appointed. There is no vested right granted the next in rank nor a ministerial
duty imposed on the appointing authority to promote the holder to the vacant position (Barrozo v. Civil
Service Commission, supra; Santiago, Jr. v. Civil Service Commission, 178 SCRA 733 [1989]).

An appointment, whether to a vacancy or to a newly created position, is essentially within the

discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities
required by law, sufficient discretion, if not plenary, is granted to the appointing authority (Medenilla v.
Civil Service Commission, supra, at 291; Central Bank v. Civil Service Commission, 171 SCRA 744
[1989]). After all, the appointing authority is the officer primarily responsible for the administration of the
office, and is likewise in the best position to determine who among the qualified candidates can
efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA 498 [1969]); Reyes v.
Abeleda, 22 SCRA 825 [1968]). Indeed, whom to appoint among those qualified is an administrative
question involving considerations of wisdom for the best interest of the service which only the appointing
authority can decide (Simpao v. Civil Service Commission, 191 SCRA 396 [1990]; Luego v. Civil
Service Commission, 143 SCRA 327 [1986]).

It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the
level of performance of the said hospital. She accomplished this mission by institutionalizing changes in
the management and financial reporting system of the hospital such that its income doubled in less than
two years since her detail. Private respondent's competence and her remarkable achievement are things
the appointing authority took notice of and which served as basis for her appointment to the contested
position.

Finally, the moral character and honesty of private respondent are issues that should be threshed out in an
appropriate action before the proper forum. As it stands, private respondent is presumed innocent and her
acts done in good faith, until proven otherwise.
WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court
resolved to DISMISS the petition for lack of merit.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 90762 May 20, 1991

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,

vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of
the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial
Treasurer FLORENCIO LUNA,respondents.

Zozimo G. Alegre for petitioner.

The Provincial Attorney for respondents.

RESOLUTION

GUTIERREZ, JR., J.:

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially
denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D.
Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the
right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this
motion, the primary issue is the right to emoluments while actually discharging the duties of the office.

The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had
been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the
Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.

On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan
was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.

The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.

On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of
the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the
petitioner to act as the Vice-Governor of Leyte.

In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337
has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy,
the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-
Governor who is temporarily performing the functions of the Governor, could concurrently assume the
functions of both offices.

As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the
Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it
held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of
the resolution reads:

WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that
there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla
assumed the Office of the Vice-Governor after he took his oath of office to said position.

WHEREAS, it is the duty of the members of the Board not only to take cognizance of the
aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to
uphold the law.

WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable
Rogelio L. Granados and the Honorable Renato M. Rances.

RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting

Vice-Governor of Leyte. (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought
clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.

On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion.1âwphi1 The
pertinent portion of the letter reads:

This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to
Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that
"there is no succession provided for in case of temporary vacancy in the office of the vice-
governor and that the designation of a temporary vice-governor is not necessary.

We hold the view that the designation extended by the Secretary of Local Government in favor of
one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and
duties of the vice-governor during the pendency of the electoral controversy in the Office of the
Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang
Panlalawigan member was temporarily designated to perform the functions of the vice-governor
could not be considered that the Sangguniang member succeeds to the office of the latter, for it is
basic that designation is merely an imposition of additional duties to be performed by the
designee in addition to the official functions attached to his office. Furthermore, the necessity of
designating an official to temporarily perform the functions of a particular public office, would
depend on the discretion of the appointing authority and the prevailing circumstances in a given
area and by taking into consideration the best interest of public service.

On the basis of the foregoing and considering that the law is silent in case of temporary vacancy,
in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of
Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls
for the designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p.
31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of
Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the
Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the
Sangguniang Panlalawigan be modified accordingly. The letter states:

In view thereof, please correct previous actions made by your office and those of the
Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio
Menzon's designation as acting vice-governor, including the payment of his salary as Acting
Vice-Governor, if he was deprived of such. (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his
earlier request.

Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused
to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the
Office of Vice-Governor.

Thus, on November 12, 1989, the petitioner filed before this Court a petition
for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the
payment of his salary for his services as the acting Vice-Governor of Leyte.

In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was
proclaimed the Governor of the province of Leyte.

During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte,
Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in
the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.

On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.

On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and
compensation which he received while acting as the Vice-Governor of Leyte.

On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion
prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the
office of the Vice-Governor while he was acting as such.

The petitioner interposes the following reason for the allowance of the motion for reconsideration:

THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES

RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF
GOOD FAITH. SIMPLE JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2)
Whether or not the Secretary of Local Government has the authority to make temporary appointments?

The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the
appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting
Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any
provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the
Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang
Panlalawigan and was thus for it solely to resolve.

The arguments are of doubtful validity.

The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by
a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326,
cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61)

Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor
was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor.
In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to
exercise the duties of the office of the Vice-Governor.

There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the
Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties
of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for
an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that
resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local
Government was prompted to appoint the petitioner shows the need to fill up the position during the
period it was vacant. The Department Secretary had the discretion to ascertain whether or not the
Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the
Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.

Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local
Government had the authority to designate the petitioner.

We hold in the affirmative.

The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in
the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a
remedy in law is wanting.

The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting
Vice-Governor. For about two years after the governatorial elections, there had been no de
jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not
yet been proclaimed due to a pending election case before the Commission on Elections.

The two-year interregnum which would result from the respondents' view of the law is disfavored as it
would cause disruptions and delays in the delivery of basic services to the people and in the proper
management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to
leave the situation without affording any remedy was ever intended by the Local Government Code.

Under the circumstances of this case and considering the silence of the Local Government Code, the
Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy,
the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation.
We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The
exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-
Governor.

The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected
and reconsidered his previous position and acknowledged the need for an acting Vice-Governor.

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987,
the President is empowered to make temporary appointments in certain public offices, in case of any
vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the Local Government Code and in the best interest
of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be
similarly applied in the present case. The respondents contend that the provincial board is the correct
appointing power. This argument has no merit. As between the President who has supervision over local
governments as provided by law and the members of the board who are junior to the vice-governor, we
have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the
constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is
incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered.
Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the
Governor or the Vice-Governor is missing.

Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for
higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where
for about two years there was only an acting Governor steering the leadership of the province of Leyte,
the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting
Governor to handle provincial problems and to serve as the buffer in case something might happen to the
acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing
happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous
vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and
an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a
continuous duty unbridled by any political considerations.

The appointment of the petitioner, moreover, is in full accord with the intent behind the Local
Government Code. There is no question that Section 49 in connection with Section 52 of the Local
Government Code shows clearly the intent to provide for continuity in the performance of the duties of
the Vice-Governor.

The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:

Section 49:

In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . .
. refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is
otherwise permanently incapacitated to discharge the functions of his office the sangguniang
panlalawigan . . . member who obtained the highest number of votes in the election immediately
preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent
vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there
was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan
who obtained the highest number of votes. The Department Secretary acted correctly in extending the
temporary appointment.

In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice
Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the
example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the
proscription against double compensation must only be such additional compensation as, with his existing
salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor.

And finally, even granting that the President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to
compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the
President, the Secretary of Local Government, after which he took his oath of office before Senator
Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.

Concededly, the appointment has the color of validity. The respondents themselves acknowledged the
validity of the petitioner's appointment and dealt with him as such. It was only when the controversial
Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor
that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor.
He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de
facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him
the salary due him for the services he actually rendered as the acting Vice-Governor of the province of
Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])

WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional
compensation which the petitioner has received, in the amount exceeding the salary authorized by law for
the position of Senior Board Member, shall be considered as payment for the actual services rendered as
acting Vice-Governor and may be retained by him.

SO ORDERED.

THIRD DIVISION

[G.R. No. 118883. January 16, 1998]

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR
NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner,vs. COURT OF
APPEALS and AUGUSTO T. ANTONIO, respondents.

DECISION
PANGANIBAN, J.:

Although a resignation is not complete without an acceptance thereof by the proper authority, an office
may still be deemed relinquished through voluntary abandonment which needs no acceptance.

Statement of the Case

Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the
Decision[1] of the Court of Appeals[2] promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which
modified the Decision dated February 18, 1994 of the Regional Trial Court[3] of Virac, Catanduanes, Branch
42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:

WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4
thereof are deleted. Paragraph 3 is AFFIRMED. No pronouncement as to costs.[4]

Antecedent Facts

Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres,
Catanduanes in March 1989. He was later elected president of the Association of Barangay Councils
(ABC)[5] for the Municipality of San Andres, Catanduanes. In that capacity and pursuant to the Local
Government Code of 1983, he was appointed by the President as member of the Sangguniang Bayan of the
Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG)
declared the election for the president of the Federation of the Association of Barangay Councils (FABC)
of the same province, in which private respondent was a voting member, void for want of a quorum. Hence,
a reorganization of the provincial council became necessary. Conformably, the DILG secretary designated
private respondent as a temporary member of the Sangguniang Panlalawigan of the Province of
Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He
tendered his resignation[6] dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes,
with copies furnished to the provincial governor, the DILG and the municipal treasurer. Pursuant to Section
50 of the 1983 Local Government Code[7] (B.P. Blg. 337), Nenito F. Aquino, then vice-president of the
ABC, was subsequently appointed by the provincial governor as member of the Sangguniang Bayan [8] in
place of private respondent. Aquino assumed office on July 18, 1990 after taking his oath.[9]
Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was
reversed by the Supreme Court in Taule vs. Santos.[10] In the same case, the appointment of Private
Respondent Antonio as sectoral representative to the Sangguniang Panlalawigan was declared void, because
he did not possess the basic qualification that he should be president of the federation of barangay
councils.[11] This ruling of the Court became final and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres
advising them of his re-assumption of his original position, duties and responsibilities as sectoral
representative[12] therein. In response thereto, the Sanggunian issued Resolution No. 6, Series of 1992,
declaring that Antonio had no legal basis to resume office as a member of the Sangguniang Bayan.[13]
On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to
resume his office as member of the Sangguniang Bayan.[14] Director Jacob F. Montesa, department legal
counsel of the DILG, clarified Antonios status in this wise:

Having been elected President of the ABC in accordance with the Departments Memorandum Circular
No. 89-09,[15] you became an ex-officio member in the sanggunian. Such position has not been vacated
inasmuch as you did not resign nor abandon said office when you were designated as temporary
representative of the Federation to the Sangguniang Panlalawiganof Catanduanes on June 7, 1990. The
Supreme Court in Triste vs. Leyte State College Board of Trustees (192 SCRA 327), declared that:
designation implies temporariness. Thus, to designate a public officer to another position may mean to
vest him with additional duties while he performs the functions of his permanent office. In some cases, a
public officer may be designated to a position in an acting capacity as when an undersecretary is
designated to discharge the functions of the Secretary pending the appointment of a permanent Secretary.

Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations Implementing the
1991 Local Government Code to continue to act as president of the association and to serve as ex-officio
members of the sangguniang bayan, to wit:

Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No. 7160,
provides that:

The incumbent presidents of the municipal, city and provincial chapters of the liga shall continue to serve
as ex-officio members of the sanggunian concerned until the expiration of their term of office, unless
sooner removed for cause.

(f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan chapters of
the liga, the incumbent presidents of the association of barangay councils in the municipality, city,
province and Metropolitan Manila, shall continue to act as president of the corresponding liga chapters
under this Rule.

In view of the foregoing, considering that the annuled designation is only an additional duty to your
primary function, which is the ABC President, we find no legal obstacle if you re-assume your
representation in the sanggunian bayan as ex-officio member.[16]

Despite this clarification, the local legislative body issued another resolution[17] reiterating its previous
stand.
In response to private respondents request,[18] Director Montesa opined that Antonio did not relinquish
or abandon his office; and that since he was the duly elected ABC president, he could re-assume his position
in the Sanggunian.[19] A copy of said reply was sent to the members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume
office as sectoral representative.
 On December 10, 1992, private respondent filed a petition for certiorari and mandamus with
preliminary mandatory injunction and/or restraining order before the RTC. On February 18, 1994, the trial
court rendered its decision holding that Augusto T. Antonios resignation from the Sangguniang Bayan was
ineffective and inoperative, since there was no acceptance thereof by the proper authorities. The decretal
portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and
against the respondents and ordering the latter:

(1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorneys fees and the
cost of the suit;

(2) to allow petitioner to assume his position as sectoral representative of the Sangguniang
Bayan of San Andres, Catanduanes;

(3) to pay the petitioner jointly and severally his uncollected salaries similar to those received
by the other members of the Sangguniang Bayan of San Andres, Catanduanes as certified
to by the Municipal Budget Officer and Municipal Treasurer of the same municipality
from April 8, 1992 up to the date of this judgment; and

(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect.[20]

Petitioners appealed this judgment to the Court of Appeals.

Appellate Courts Ruling

Respondent Court of Appeals affirmed the trial courts ruling but deleted the first, second and fourth
paragraphs of its dispositive portion. It held that private respondents resignation was not accepted by the
proper authority, who is the President of the Philippines. While the old Local Government Code is silent as
to who should accept and act on the resignation of any member of the Sanggunian, the law vests in the
President the power to appoint members of the local legislative unit. Thus, resignations must be addressed
to and accepted by him. It added that, though the secretary of the DILG is the alter ego of the President and
notice to him may be considered notice to the President, the records are bereft of any evidence showing that
the DILG secretary received and accepted the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation, private respondent was still the
president of the ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio capacity
by virtue of Section 494[21] of R.A. 7160[22] and Memorandum Circular No. 92-38.[23] In view, however, of
the May 1994 elections in which a new set of barangay officials was elected, Antonios reassumption of
office as barangay representative to the Sangguniang Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to have abandoned his
office. His designation as member of the Sangguniang Panlalawigan was merely temporary and not
incompatible with his position as president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys fees for being without basis, and held that
Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the powers
of said local body. It thus modified the trial courts judgment by affirming paragraph 3 and deleting the other
items. Unsatisfied, petitioners brought the present recourse.[24]
 Issues

The petitioner, in its memorandum,[25] submits before this Court the following issues:

I. Whether or not respondents resignation as ex-officio member of Petitioner Sangguniang Bayan ng San
Andres, Catanduanes is deemed complete so as to terminate his official relation thereto;

II. Whether or not respondent had totally abandoned his ex-officio membership in Petitioner Sangguniang
Bayan;

III. Whether or not respondent is entitled to collect salaries similar to those received by other members of
Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the Regional
Trial Court of Virac, Catanduanes.[26]

In sum, was there a complete and effective resignation? If not, was there an abandonment of office?

This Courts Ruling

The petition is meritorious. Although the terms of office of barangay captains, including private
respondent, elected in March 1989 have expired, the Court deemed it necessary to resolve this case, as the
Court of Appeals had ordered the payment of the uncollected salaries allegedly due prior to the expiration
of Respondent Antonios term.

First Issue: Validity of Resignation

The petitioner submits that the resignation of private respondent was valid and effective despite the
absence of an express acceptance by the President of the Philippines. The letter of resignation was submitted
to the secretary of the DILG, an alter ego of the President, the appointing authority. The acceptance of
respondents resignation may be inferred from the fact that the DILG secretary himself appointed him a
member of the Sangguniang Panlalawigan of Catanduanes.[27]
In Ortiz vs. COMELEC,[28] we defined resignation as the act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. It is an expression of the incumbent
in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. To constitute a complete and operative resignation from
public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment;
and (c) an acceptance by the proper authority.[29] The last one is required by reason of Article 238 of the
Revised Penal Code.[30]
The records are bereft of any evidence that private respondents resignation was accepted by the proper
authority. From the time that he was elected as punong barangay up to the time he resigned as a member of
Sangguniang Bayan, the governing law was B.P. 337 or the Local Government Code of 1983. While said
law was silent as to who specifically should accept the resignation of an appointive member of the
Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the [r]esignation of sanggunian
members shall be acted upon by the sanggunian concerned, and a copy of the action taken shall be furnished
the official responsible for appointing a replacement and the Ministry of Local Government. The position
shall be deemed vacated only upon acceptance of the resignation.
It is not disputed that private respondents resignation letter was addressed only to the municipal mayor
of San Andres, Catanduanes. It is indicated thereon that copies were furnished the provincial governor, the
municipal treasurer and the DILG. Neither the mayor nor the officers who had been furnished copies of
said letter expressly acted on it. On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule
XIX is valid and applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan
for proper action. In any event, there is no evidence that the resignation was accepted by any government
functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:

Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the municipality and
shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall
be the presiding officer pro tempore, eight members elected at large, and the members appointed by the
President consisting of the president of the katipunang bayanand the president of the kabataang
barangay municipal federation. x x x. (Emphasis supplied.)

Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they
should be submitted, should be tendered to the appointing person or body.[31]Private respondent, therefore,
should have submitted his letter of resignation to the President or to his alter ego, the DILG
secretary. Although he supposedly furnished the latter a copy of his letter, there is no showing that it was
duly received, much less, that it was acted upon. The third requisite being absent, there was therefore no
valid and complete resignation.

Second Issue: Abandonment of Office

While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof
by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished
his membership in the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder,
with the intention of terminating his possession and control thereof.[32] Indeed, abandonment of office is a
species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary
relinquishment through nonuser.[33] Nonuser refers to a neglect to use a privilege or a right (Cyclopedic
Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice. [34] Its
concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible
reoccupancy.[35]
Clear intention to abandon should be manifested by the officer concerned. Such intention may be
express or inferred from his own conduct.[36] Thus, the failure to perform the duties pertaining to the office
must be with the officers actual or imputed intention to abandon and relinquish the office.[37] Abandonment
of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such a
continuance that the law will infer a relinquishment.[38] Therefore, there are two essential elements of
abandonment: first, an intention to abandon and, second, an overt or external act by which the intention is
carried into effect. [39]
 Petitioner argues that the following clearly demonstrate private respondents abandonment of his post
in the Sangguniang Bayan:

Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes

was worded temporary, but his acts more than clearly established his intention to totally abandon his
office, indicating an absolute relinquishment thereof. It bears to emphasize that respondent
actually tendered his resignation and subsequently accepted an ex-officio membership in the Sangguniang
Panlalawigan of Catanduanes. He performed his duties and functions of said office for almost two (2)
years, and was completely aware of the appointment and assumption on July 18, 1990 of Nenito F.
Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of San Andres,
Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the ABC.

xxxxxxxxx

Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondents former
position for twenty (20) months, without him questioning the term of office of the former if indeed
respondents designation as ex-officio member of the Sangguniang Panlalawigan was only
temporary. Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et.
al., Ibid., nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted
to remain silent, and in fact failed to seasonably act for the purpose of reassuming his former
position. Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of
his office through non-user.[40] [Underscoring supplied.]

We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to
abandon his position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2) his
failure to collect the corresponding remuneration for the position, (3) his failure to object to the appointment
of Aquino as his replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act to
reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the
Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter
of resignation from the Sangguniang Bayan;[41] (2) his assumption of office as member of the Sangguniang
Panlalawigan, (3) his faithful discharge of his duties and functions as member of said Sanggunian, and (4)
his receipt of the remuneration for such post.
It must be stressed that when an officer is designated to another post, he is usually called upon to
discharge duties in addition to his regular responsibilities. Indeed, his additional responsibilities are
prescribed by law to inhere, as it were, to his original position. A Supreme Court justice, for instance, may
be designated member of the House of Representatives Electoral Tribunal. In some cases, a public officer
may be designated to a position in an acting capacity, as when an undersecretary is tasked to discharge the
functions of a secretary for a temporary period.[42] In all cases, however, the law does not require the public
servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions
of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of both
positions. Neither did he, at that time, express an intention to resume his office as member of the
Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his
original position, show that Antonio had abandoned the contested office. His immediate and natural
reaction upon Aquinos appointment should have been to object or, failing to do that, to file appropriate
legal action or proceeding. But he did neither. It is significant that he expressed his intention to resume
office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and months
after this Court had nullified his designation on August 12, 1991. From his passivity, he is deemed to have
recognized the validity of Aquinos appointment and the latters discharge of his duties as a member of the
Sangguniang Bayan.
In all, private respondents failure to promptly assert his alleged right implies his loss of interest in the
position. His overt acts plainly show that he really meant his resignation and understood its effects. As
pointed out by the eminent American commentator, Mechem:[43]

Public offices are held upon the implied condition that the officer will diligently and faithfully execute the
duties belonging to them, and while a temporary or accidental failure to perform them in a single instance
or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to
exercise the functions of the office for so long a period as to reasonably warrant the presumption that he
does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not
only when his refusal to perform was wilful, but also where, while he intended to vacate the office, it was
because he in good faith but mistakenly supposed he had no right to hold it.

Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the
Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-
executory, for the law itself requires another positive act -- an appointment by the President or the secretary
of local government per E.O. 342.[44] What private respondent could have done in order to be able to
reassume his post after Aquinos resignation was to seek a reappointment from the President or the secretary
of local government. By and large, private respondent cannot claim an absolute right to the office which,
by his own actuations, he is deemed to have relinquished.[45]
We reiterate our ruling in Aparri vs. Court of Appeals: [46]

A public office is the right, authority, and duty created and conferred by law, by which for a given period,
either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised by him for the benefit of the public
x x x. The right to hold a public office under our political system is therefore not a natural right. It exists,
when it exists at all, only because and by virtue of some law expressly or impliedly creating and
conferring it x x x. There is no such thing as a vested interest or an estate in an office, or even an absolute
right to hold office. Excepting constitutional offices which provide for special immunity as regards salary
and tenure, no one can be said to have any vested right in an office or its salary x x x.

Third Issue: Salary

Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan,
he cannot be entitled to any back salaries. Basic is the no work, no pay[47] rule. A public officer is entitled
to receive compensation for services actually rendered for as long as he has the right to the office being
claimed.[48] When the act or conduct of a public servant constitutes a relinquishment of his office, he has
no right to receive any salary incident to the office he had abandoned.[49]
WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET
ASIDE. No costs.
SO ORDERED.
EN BANC
 [G.R. No. 134213. July 20, 1999]

Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y. Araneta, respondents.

DECISION
YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting
Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts are not in dispute.
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo
Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and SP
members, respectively. Sometime in August of 1995, the governor designated petitioner as Acting
Governor for the duration of the formers official trip abroad until his return. When the SP held its regular
session on September 6, 1995, respondents questioned the authority of petitioner to preside therein in view
of his designation as Acting Governor and asked him to vacate the Chair. The latter, however, refused to
do so. In another session, seven (7) members of the SP voted to allow petitioner to continue presiding while
four (4) others voted against with one (1) abstention. On September 22, 1995, respondents filed before the
lower court a petition for declaratory relief and prohibition. In the meantime, on October 2, 1995, the
Governor re-assumed his office. Later, the trial court rendered a decision and declared petitioner as
temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the
Acting Governor.[1] Aggrieved, petitioner filed a petition for review raising the issue earlier
mentioned. Although this case is dismissible for having become moot and academic considering the
expiration in 1998 of the terms of office of the local officials involved herein, the Court nonetheless
proceeds to resolve this common controversy but novel issue under the existing laws on local government.
Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the Local
Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of the SP.[2] In
addition to such function, he become(s)[3] the Governor and assume(s)[4] the higher office for the unexpired
term of his predecessor, in case of permanent vacancy therein. When the vacancy, however, is merely
temporary, the Vice-Governor shall automatically exercise the powers (subject to certain limitations) and
perform the duties and functions[5] of the Governor. It may be noted that the Code provides only for modes
of succession in case of permanent vacancy in the office of the Governor and the Vice-Governor (whether
single or simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But, no
such contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just like the
1983 Local Government Code.[6]
It is correct that when the Vice-Governor exercises the powers and duties of the Office of the Governor,
he does not assume the latter office. He only acts as the Governor but does not become the Governor. His
assumption of the powers, duties and functions of the provincial Chief Executive does not create a
permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor
abandon his position and title as Vice-Governor by merely becoming an Acting Governor, (not Governor)
or by merely exercising the powers and duties of the higher office. But the problem is, while in such
capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of the Vice-
Governor, including the power to preside over the sessions of the SP?
Sad to say the new Local Government Code is silent on this matter, yet this query should be answered
in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-
Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed
as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-
Governor are essentially executive in nature, whereas plain members of the provincial board perform
functions partaking of a legislative character. This is because the authority vested by law in the provincial
boards involves primarily a delegation of some legislative powers of Congress.[7] Unlike under the old
Code, where the Governor is not only the provincial Chief Executive,[8] but also the presiding officer of the
local legislative body,[9] the new Code delineated the union of the executive-legislative powers in the
provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived
of the power to preside over the SP and is no longer considered a member thereof.[10] This is clear from the
law, when it provides that local legislative power shall be vested in the SP,[11] which is the legislative body
of the province, and enumerates therein its membership consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.) president of the provincial federation of sanggunian members of municipalities and component
cities.[12]

Not being included in the enumeration, the Governor is deemed excluded applying the rule in legal
hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive
power in the province is vested alone in the Governor.[13] Consequently, the union of legislative-executive
powers in the office of the local chief executive under the former Code has been disbanded, so that either
department now comprises different and non-intermingling official personalities with the end in view of
ensuring a better delivery of public service and provide a system of check and balance between the two.
It has been held that if a Mayor who is out of the country is considered effectively absent, the Vice-
Mayor should discharge the duties of the mayor during the latters absence.[14] This doctrine should equally
apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay
down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean
effective absence,[15] that is, one that renders the officer concerned powerless, for the time being, to
discharge the powers and prerogatives of his office.[16] There is no vacancy whenever the office is occupied
by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the office.[17] By virtue of the foregoing definition,
it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting Governor
creates a corresponding temporary vacancy in the office of the Vice-Governor during such
contingency. Considering the silence of the law on the matter, the mode of succession provided for
permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in
the event of temporary vacancy occurring in the same office.[18] This is so because in the eyes of the law,
the office to which he was elected was left barren of a legally qualified person to exercise the duties of the
office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties
of the latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to
discharge them.[19] Such is not only consistent with but also appears to be the clear rationale of the new
Code wherein the policy of performing dual functions in both offices has already been abandoned. To
repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an inability on the part of the regular presiding officer (Vice Governor) to
preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the
Local Government Code concerning the election of a temporary presiding officer. The continuity of the
Acting Governors (Vice-Governor) powers as presiding officer of the SP is suspended so long as he is in
such capacity. Under Section 49(b), (i)n the event of the inability of the regular presiding officer to preside
at the sanggunian session, the members present and constituting a quorum shall elect from among
themselves a temporary presiding officer.[20]
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.

EN BANC

[G.R. No. 116763. April 19, 1996]

GOVERNOR RODOLFO C. FARINAS and AL NACINO, petitioners, vs. MAYOR ANGELO M.

ARBA, VICE MAYOR MANUEL S. HERNANDO, and EDWARD PALAFOX, respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; APPOINTING AUTHORITY;
VESTED IN THE GOVERNOR IN CASE OF PERMANENT VACANCY CAUSED BY A
SANGGUNIANG BAYAN MEMBER WHO DOES NOT BELONG TO ANY POLITICAL
PARTY, UPON RECOMMENDATION OF THE SANGGUNIANG BAYAN CONCERNED.
- Since the vacancy in this case was created by a Sanggunian member who did not belong to any
political party, the specific provision involved is par. (c) of Sec. 45 of the Local Government Code.
But who is the local chief executive referred? And which is the Sanggunian concerned? With respect
to the first (local chief executive), petitioners look to Sec. 45(a) for the answer and say that it is the
governor, with respect to vacancies in the Sangguniang Panlungsod of component cities and
Sangguniang Bayan, or the mayor with respect to vacancies in the sangguniang Barangay. Reference
to Secs. 50 and 63 provisions is appropriate not for the reason advanced by petitioners, i.e., that the
power to appoint implies the power to remove, but because implicit in these provisions is a policy to
vest in the President, the governor and the mayor in descending order the exercise of an executive
power whether to appoint in order to fill vacancies in local councils or to suspend local officials. These
provisions are inpari materia with Sec. 45. To be sure the President of the Philippines can not be
referred to as local chief executive in Sec. 45(c) but it is apparent that the phrase is a misnomer and
that the choice of this phrase was simply dictated by the need to avoid, for stylistic reasons,
interminably repeating the officials on whom the power to appoint is conferred. Perhaps authorities
 concerned would have been a more accurate generic phrase to use. For that matter, to follow private
respondents interpretation would be to run into a similar, if not greater, difficulty. For Sec. 45(a)(3)
vests the power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief
executive of a barangay is not the mayor. It is the punong barangay. Yet local chief executive cannot
be applied to the punong barangay without rendering Sec. 45(a)(3) meaningless. For then there would
never be any occasion when the mayor, under this provision, can appoint a replacement for a member
of the Sangguniang Bayan who for one reason or another ceases from office for reason other than the
expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan be filled by a
different authority (the governor, according to this view) simply because the vacancy was created by
a member who does not belong to a political party when, according to Sec. 45(a)( 1), a vacancy created
by a member who belongs to a political party must be filled by appointment by the President of
the Philippines? With reference to the phrase sanggunian concerned in Sec. 45(c), petitioners say it
means, with respect to a vacancy in the Sangguniang Bayan, the Sangguniang Panlalawigan. Their
reason is that under Sec. 61 of the Code, the power to investigate complaints against elective municipal
officials is vested in the Sangguniang Panlalawigan. This interpretation is inconsistent with the fact
that in filling vacancies in the Sangguniang Barangay it is the Sangguniang Barangay which under
Sec. 45(a)(3) recommends the appointee, not the Sangguniarang Panlungsod or the Sangguniang
Bayan, which would be the case if petitioners view were to prevail. We think that the phrase
sanggunian concerned in Sec. 45(c) should more properly be understood as referring to the Sanggunian
in which the vacancy is created. This is in keeping with the policy implicit in Sec. 45(a)(3). In other
words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for
the filling of vacancies in the various Sanggunians when these vacancies are created as a result of the
cessation from office (other than expiration of term) of members who belong to political parties. On
the other hand, Sec. 45(c) must be understood as providing for the filling of vacancies created by
members who do not belong to any political party. There is only one rule governing appointments to
the Sangguniang Barangay. Any vacancy therein caused by the cessation from office of a member
must be made by the mayor upon the recommendation of that Sanggunian. The reason is that members
of the Sangguniang Barangay are not allowed to have party affiliations.
2. ID.; ID.; ID.; NOT BOUND TO APPOINT ANYONE RECOMMENDED TO HIM BY THE
SANGGUNIAN CONCERNED. - Having determined that appointments in case of vacancies caused
by Sanggunian members who do not belong to any political party must be made in accordance with
the recommendation of the Sanggunians concerned where the vacancies occur, the next question is: Is
the appointing authority limited to the appointment of those recommended to him? We think an
affirmative answer must be given to the question. The appointing authority is not bound to appoint
anyone recommended to him by the Sanggunian concerned. The power of appointment is a
discretionary power. On the other hand, neither is the appointing power vested with so large a
discretion that he can disregard the recommendation of the Sanggunian concerned. Since the
recommendation takes the place of nomination by political party, the recommendation must likewise
be considered a condition sine qua non for the validity of the appointment, by analogy to the provision
of Sec. 45(b).
APPEARANCES OF COUNSEL
Pineda Pineda Mastura Valencia and Associates for respondents.

DECISION
MENDOZA, J.:
 The question in this case is: In case of a permanent vacancy in the Sangguniang Bayan caused by the
cessation from office of a member who does not belong to any political party, who can appoint the
replacement and in accordance with what procedure?
This case arose from the following facts:
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March
24, 1994, he resigned after going without leave to the United States.
To fill the vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended
to the Governor of the province, petitioner Rodolfo C. Farias, the appointment of respondent Edward
Palafox.
A similar recommendation for the appointment of Edward Palafox was made by the Sangguniang
Bayan of San Nicolas but the recommendation was made to Mayor Barba. The resolution, containing the
recommendation, was submitted to the Sangguniang Panlalawigan of Ilocos Norte purportedly in
compliance with 56 of the Local Government Code (R.A. No. 7160).1
The Sangguniang Panlalawigan, purporting to act under this provision of the Local Government Code,
disapproved the resolution for the reason that the authority and power to appoint Sangguniang Bay an
members are lodged in the Governor, and therefore, the Resolution should be addressed to the Provincial
Governor. Accordingly, the Sangguniang Panlalawigan recommended to the Governor the appointment of
petitioner Al Nacino, vice Carlito Domingo, as member of the Sangguniang Bayan of San Nicolas. On June
8, 1994, petitioner Governor appointed petitioner Nacino and swore him in office that same day.
On the other hand, respondent Mayor Barba appointed respondent Edward Palafox to the same position
on June 8, 1994. The next day, June 9, 1994, respondent Palafox took his oath as member of the
Sangguniang Bayan.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo
warranto and prohibition, entitled Governor Rodolfo C. Farias and Al Nacino v. Mayor Angelo M. Barba,
Vice Mayor Manuel S. Hernando, Jr. and Edward D. Palafox.
On July 8, 1994 the trial court rendered its decision, upholding the appointment of respondent Palafox
by respondent Mayor Barba. It held:

Under the facts and circumstances as shown clearly in the case, there is no doubt the law that is applicable
is sub-section C of Section 45 of Republic Act No. 7160 otherwise known as the Local Government Code
of 1991 which provides:

In case the permanent vacancy is caused by a Sanggunian Member who does not belong to any political
party, the Local Chief Executive shall upon the recommendation of the Sanggunian concerned, appoint a
qualified person to fill the vacancy.

. . . Inasmuch as the permanent vacancy is in the Sanggunian Bayan of San Nicolas, Ilocos Norte, it is the
Sanggunian concerned referred to in the law which recommends the appointment to fill the vacancy. . . .
This being so, the Local Chief Executive referred to in sub-section C of Section 45 of Republic Act No.
7160 is the Municipal Mayor of San Nicolas, Ilocos Norte.

It cannot be denied that the Governor has the authority to appoint a qualified person to fill the vacancy
in the Sanggunian Bayan caused by resignation of a member thereof as that is vested in him or her by the
Provision of No. 2, Sec. 45 of Republic Act No. 7160. To the mind of the court that authority is not vested
in him or her where the permanent vacancy is caused by a Sanggunian Member who does not belong to any
political party as that authority is specifically vested upon the Local Chief Executive upon recommendation
of the Sanggunian concerned as per sub-section C of Section 45 of the same Republic Act No. 7160. Under
No. 2 of Sec. 45 aforementioned the law does not require a recommendation for the appointment of
Sanggunian Bayan Member to fill a permanent vacancy either from the Sangguniang Panlalawigan or from
the Sanggunian Bayan. . . . As such there can be no other person referred to as the Local Chief Executive
having the authority to appoint other than the Municipal Mayor of the Municipality of the Sanggunian
Bayan where there is permanent vacancy. This can be clearly inferred from the two (2) provisions of the
law (No. 2 and sub-section C of Sec. 45 of Rep. Act No. 7160). While No. 2 of Sec. 45 specifically vests
the power to appoint in the Governor, sub-section. C of Sec. 45, specifically vests the power to appoint in
the Local Chief Executive. The Local Chief Executive specifically mentioned in said sub-section C of Sec.
45 is not the Governor, for there would have been no need for the law making body to have specifically
stated in the law if it had intended that the Governor is that one and the same Local Chief Executive vested
with power to appoint.
Petitioners filed a motion for reconsideration, but this was denied by the trial court on August 18, 1994.
Hence this petition for review on certiorari.
Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a
result of the cessation from office of a member who does not belong to a political party, is vested in the
provincial governor upon recommendation of the Sangguniang Panlalawigan.
The statutory provision in question is 45 of the Local Government Code of 1991 (R.A. No. 7160)
which reads:

45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic
successions provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan
and the sangguniang panlungsod of highly urbanized cities and independent component cities;
(2) The governor, in the case of the sangguniang panlungsod of component cities and the
sangguniang bayan;
(3) The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation
of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of the political party under which the
sanggunian member concerned had been elected and whose elevation to the position next higher in rank
created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The
appointee shall come from the same political party as that of the sanggunian member who caused the
vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a
nomination and a certificate of membership of the appointee from the highest official of the political party
concerned are conditions sine qua non, and any appointment without such nomination and certification
shall be null and void ab initio and shall be a ground for administrative action against the official
responsible therefor.

(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any
political party, the local chief executive shall, upon recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy
shall be filled automatically by the official next in rank of the organization concerned.
 [1] Since the vacancy in this case was created by a Sanggunian member who did not belong to any
political party, the specific provision involved is par. (c), to wit:

(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any
political party, the local chief executive shall, upon recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.

But who is the local chief executive referred? And which is the sanggunian concerned? With respect
to the first (local chief executive), petitioners look to 45(a) for the answer and say that it is the governor,
with respect to vacancies in the Sangguniang Panlungsod of component cities and Sangguniang Bayan, or
the mayor with respect to vacancies in the sangguniang Barangay.
In support of this view, they cite, first of all, the following provision of the former Local Government
Code (B.P. Blg. 337):

50. Permanent Vacancies in the Local Sanggunians. -In case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of
the Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified
person to fill the vacancy in the sangguniang panlalawigan and the sangguniang panlungsod; the
governor, in the case of sangguniang bayan members; or the city or municipal mayor, in the case
of sangguniang barangay members. Except for the sangguniang barangay, the appointee shall come from
the political party of the sanggunian member who caused the vacancy, and shall serve the unexpired term
of the vacant office.

and, second, the following provision of the present Code:

63. Preventive Suspension - (a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an
independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay. . .

Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the
power to appoint implies the power to remove, but because implicit in theseprovisions is a policy to vest in
the President, the governor and the mayor in descending order the exercise of an executive power whether
to appoint in order to fill vacancies in local councils or to suspend local officials. These provisions are in
pan materia with 45.
To be sure the President of the Philippines can not be referred to as local chief executive in 45(c) but
it is apparent that the phrase is a misnomer and that the choice of this phrase was simply dictated by the
need to avoid, for stylistic reasons, interminably repeating the officials on whom the power to appoint is
conferred. Perhaps authorities concerned would have been a more accurate generic phrase to use.
For that matter, to follow private respondents interpretation would be to run into a similar, if not
greater, difficulty. For 45(a)(3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor
but the local chief executive of a barangay is not the mayor. It is the punong barangay. Yet local chief
executive cannot be applied to the punong barangay without rendering 45(a)(3) meaningless. For then there
would never be any occasion when the mayor, under this provision, can appoint a replacement for a member
of the Sangguniang Bayan who for one reason or another ceases from office for reason other than the
expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan be filled by a different
authority (the governor, according to this view) simply because the vacancy was created by a member who
does not belong to a political party when, according to 45(a)(1), a vacancy created by a member who
belongs to a political party must be filled by appointment by the President of the Philippines?
With reference to the phrase sangguniang concerned in 45(c), petitioners say it means, with respect to
a vacancy in the Sangguniang Bayan, the Sangguniang Panlalawigan. Their reason is that under Sec. 61 of
the Code, the power to investigate complaints against elective municipal officials is vested in the
Sangguniang Panlalawigan:

61. Form and Filing of Administrative Complaints -A verified complaint against any erring local elective
official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or a component city shall be filed before the office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sanggunian
panlalawigan whose decision may be appealed to the Office of the President;

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be final and executory.

This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay
it is the Sangguniang Barangay which under 45(a)(3) recommends the appointee, not the Sangguniang
Panlungsod or the Sangguniang Bayan, which would be the case if petitioners view were to prevail.
We think that the phrase sanggunian concerned in 45(c) should more properly he understood as
referring to the Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in
45(a)(3).
In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as
providing for the filling of vacancies in the various Sanggunians when these vacancies are created as a
result of the cessation from office (other than expiration of term) of members who belong to political parties.
On the other hand, 45(c) must be understood as providing for the filling of vacancies created by members
who do not belong to any political party. Consequently, 45 must be construed to mean that -
I. Where the Permanent Vacancy is Caused by a Sanggunian Member belonging to a Political
Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and
independent component cities - The President, through the Executive Secretary, upon the
nomination and certification of the political party to which the member who caused the
vacancy belonged, as provided in 45(b).
B. Sangguniang Panlungsod of component cities and Sangguniang Bayan - The Governor
upon the nomination and certification of the political party to which the member who
caused the vacancy belonged, as provided in Sec. 45(b).
II. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and
independent component cities - The President, through the Executive Secretary, upon
 recommendation of the Sangguniang Panlalawigan or Sangguniang Panlungsod as the
case may be.
B. Sangguniang Panlungsod of component cities and Sangguniang Bayan - The Governor
upon recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as the case
may be.
III. Where the Vacancy is Caused by a Member of the Sangguniang Barangay - City or Municipal
Mayor upon recommendation of the Sangguniang Barangay.
There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein
caused by the cessation from office of a member must be made by the mayor upon the recommendation of
that Sanggunian. The reason is that members of the Sangguniang Barangay are not allowed to have party
affiliations.
Indeed there is no reason for supposing that those who drafted 45 intended to make the manner of
filling vacancies in the Sanggunians, created by members who do not belong to any political party, different
from the manner of filling such vacancies when created by members who belong to political party or parties.
The provision for the first must approximate the provision for the second situation. Any difference in
procedure must be limited to the fact that in the case of vacancies caused by those who have political
affiliations there is a party which can nominate a replacement while there is none in the case of those who
have no political affiliation. Accordingly, where there is no political party to make a nomination, the
Sanggunian, where the vacancy occurs, must be considered the appropriate authority for making the
recommendation, by analogy to vacancies created in the Sangguniang Barangay whose members are by law
prohibited from having any party affiliation.
[2] Having determined that appointments in case of vacancies caused by Sanggunian members who
do not belong to any political party must be made in accordance with the recommendation of the
Sanggunians concerned where the vacancies occur, the next question is: Is the appointing authority limited
to the appointment of those recommended to him? We think an affirmative answer must be given to the
question. The appointing authority is not bound to appoint anyone recommended to him by the Sanggunian
concerned. The power of appointment is a discretionary power. On the other hand, neither is the appointing
power vested with so large a discretion that he can disregard the recommendation of the Sanggunian
concerned. Since the recommendation takes the place of nomination by political party, the recommendation
must likewise be considered a condition sine qua non for the validity of the appointment, by analogy to the
provision of 45(b).
[3] The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor respondent
Edward Palafox was appointed in the manner indicated in the preceding discussion, neither is entitled to
the seat in the Sangguniang Bayan of San Nicolas, Ilocos Norte which was vacated by member Carlito B.
Domingo. For while petitioner Al Nacino was appointed by the provincial governor, he was not
recommended by the Sangguniang Bayan of San Nicolas. On the other hand, respondent Edward Palafox
was recommended by the Sangguniang Bayan but it was the mayor and not the provincial governor who
appointed him.
WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it dismisses
petitioners action for quo warranto and prohibition, is AFFIRMED, but for different reasons from those
given by the trial court in its decision.
SO ORDERED.
 FIRST DIVISION

[G.R. No. 141307. March 28, 2001]

PURTO J. NAVARRO and DANNY B. TAMAYO, petitioner, vs. COURT OF APPEALS and
ADOLFO AQUINO, ROLANDO LALAS, ABRAHAM MORALES, BLANDO QUINTO,
ROMEO VISPERAS, ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO
PENULIAR, JR., ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO
BURGUILLOS, MIGUEL JIMENEZ, and ELPIDIO VILLANUEVA, respondents.

DECISION
KAPUNAN, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing
as erroneous the decision of the Court of Appeals, Fourth Division,[1] dated October 7, 1999 in CA-G.R. SP
No. 5475 which granted the petition for certiorari filed by herein respondents and declared as null and void
the appointment of herein petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan.
The facts are undisputed.
In the May 11, 1997 local elections, the following officials were elected to office in the Municipality
of Mapandan, Pangasinan:

Cesar M. Calimlim - Mayor - Lakas NUCD-KAMPI

Baltazar Aquino - Vice-Mayor - Lakas NUCD-KAMPI

Elected as members of the Sangguniang Bayan ranked according to the highest number of votes
obtained were the following councilors:

Political Party

1. Danny B. Tamayo REFORMA-LM

2. Rolando S. Soriano REFORMA-LM

3. Leopoldo C. Biagtan REFORMA-LM

4. Florentino Z. Lalas REFORMA-LM

5. Mamerto Eden, Jr. REFORMA-LM

6. Victorio C. Lalangan LAKAS-NUCD-KAMPI

7. Judy A. Pascual REFORMA-LM

8. Rolando Lalas LAKAS-NUCD-KAMPI

On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the Office of the
Mayor so by operation of law, Section 44 of Republic Act 7160, otherwise known as the Local Government
Code of 1991, then Vice-Mayor Baltazar Aquino succeeded him. Accordingly, the highest ranking member
of the Sangguniang Bayan, i.e. the one who garnered the highest number of votes, was elevated to the
position of the Vice-Mayor, pursuant to the same law. This was petitioner Danny B. Tamayo who belonged
to the REFORMA-LM political party.
Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner Tamayo to the office
of the Vice-Mayor, Governor Victor Agbayani of Pangasinan appointed herein petitioner Purto J. Navarro
as Member of the Sangguniang Bayan. Navarro belonged to the same political party as that of petitioner
Tamayo.
Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of petitioner Navarro
before the Regional Trial Court of Dagupan City, Branch 44 presided by Judge Crispin Laron. Their
motions for the issuance of a temporary restraining order and for the inhibition of Judge Laron having been
denied, private respondents filed a Petition for Review on Certiorari with this Court.
In a Resolution dated August 25, 1999, this Court referred the case to the Court of Appeals due to the
hierarchy of courts.
Private respondents argued before the Court of Appeals that it was the former vice-mayor, succeeding
to the position of the mayor, who created the permanent vacancy in the Sanggunian Bayan because under
the law he was also a member of the Sanggunian. Thus, the appointee must come from said former vice-
mayor's political party, in this case, the Lakas-NUCD-Kampi.
Petitioners, on the other hand, contended that it was the elevation of petitioner Tamayo, who was the
highest-ranking member of the Sanggunian Bayan, to the office of the Vice-Mayor which resulted in a
permanent vacancy in the Sanggunian Bayan. Pursuant to Section 45 (b) of RA 7160, the person to be
appointed to the position vacated by him should come from the same political party affiliation as that of
petitioner Tamayo. Hence, the appointment extended by Governor Agbayani to petitioner Navarro, who
was a member of and recommended by the REFORMA-LM, is valid.
The Court of Appeals in a decision dated October 7, 1999 resolved the petition in favor of private
respondents but for the reason different from that posited by private respondents. According to the appellate
court, the vacancy which resulted from the death of the mayor created a series of vacancies and successions
by operation of law. By this interpretation, petitioner Tamayo's former position as the highest-ranking
member of the Sanggunian Bayan was filled up by the second highest-ranking member and that vacated by
the second highest-ranking member was succeeded by the third highest-ranking member, and so forth. And
the last vacancy created was the position of the lowest ranking-member of the Sanggunian, that is, the
eighth position occupied by Rolando Lalas. The Court of Appeals then concluded that it was the
appointment of the eighth councilor, who was Rolando Lalas to the number seven position which created
the "last vacancy;" therefore, the person to be appointed to the vacant position should come form the same
political party to which Rolando Lalas belonged, which was the Lakas-NUCD-Kampi.
Aggrieved by the decision of the Court of Appeals, petitioners brought the instant petition.
We give due course to the petition.
Sections 44 and 45 of RA 7160 governing vacancies and succession are quoted hereunder:
Sec. 44. Permanent Vacancies in the Offices of the Governor, Mayor, and Vice-Mayor. -- If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall
become the governor or mayor. If a permanent vacancy in the offices of the governor, vice-governor,
mayor or vice-mayor, the highest sanggunian member or, in case of his permanent inability, the second
highest-ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor as
the case may be. Subsequent vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined herein:

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian
barangay members or, in case of his permanent inability, the second highest ranking sanggunian member,
shall become the punong barangay.

(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of
lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher
vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns,
or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on
the basis of the proportion of votes obtained by each winning candidate to the total number of registered
voters in each district in the immediately preceding local election.

Sec. 45. Permanent Vacancies in the Sanggunian. - (a) Permanent vacancies in the sanggunian where
automatic successions provided above do not apply shall be filled by appointment in the following
manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the
sangguniang panglungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panglunsod of component cities and the sangguniang
bayan;

(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the
sangguniang barangay concerned;

(b) Except for the sangguniang barangay, only the nominee of the political party under which the
sanggunian member concerned had been elected and whose elevation to the position next higher in rank
created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The
appointee shall come from the same political party as that of the sanggunian member who caused the
vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a
nomination and a certificate of membership of the appointee from the highest official of the political party
concerned are conditions sine qua non, and any appointment without such nomination and certification
shall be null and void ab initio and shall be a ground for administrative action against the official
responsible therefor.
(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any
political party, the local chief executive shall, upon recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy
shall be filled automatically by the official next in rank of the organization concerned.

Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
What is crucial is the interpretation of Section 45 (b) providing that "xxx only the nominee of the
political party under which the Sanggunian member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner
hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member
who caused the vacancy xxx."
The reason behind the right given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the
election.[2]
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-
Mayor, a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to
the political party of petitioner Tamayo. Otherwise, REFORMA-LM's representation in the Sanggunian
would be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a
LAKAS-NUCD-Kampi member, would result in the increase of that party's representation in the
Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of
the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give
effect to the intent and purpose of the law.[3] As earlier pointed out, the reason behind par. (b), section 44
of the Local Government Code is the maintenance party representation in the Sanggunian in accordance
with the will of the electorate.
The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly
occupying the next higher in rank which in turn also had become vacant by any of the causes already
enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy
previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with
the election of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in
absurdity.
Petitioners also allege that the Court of Appeals erred in giving due course to the petition because the
verification is defective. It is argued that the affidavit merely stated that the allegations therein are "true and
correct to the best of my own knowledge and information" whereas Section 4, Rule 7 of the Rules of Court
specifically requires that the allegations be "true and correct of his knowledge and belief."
The contention is without merit. Verification based on the affiant's own knowledge and information is
sufficient under the circumstances. Verification is merely a formal and not a jurisdictional requisite which
does not affect the validity or efficacy of the pleading, or the jurisdiction of the court.[4] Therefore, a
defective verification, as in the present case, does not render the pleading or the petition invalid and the
Court of Appeals did not err in giving due course to the petition.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R.
SP No. 54675 dated October 7, 1999 is REVERSED and SET ASIDE. The appointment of petitioner Purto
J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan is hereby AFFIRMED as valid and legal.
 SO ORDERED.

EN BANC

[G.R. No. 143540. April 11, 2003]

JOEL G. MIRANDA, petitioner, vs. ANTONIO C. CARREON, MILAGROS B. CASCO, ELSIE S.

ESTARES, JULIUS N. MALLARI, ELINORA A. DANAO, JOVELYN G. RETAMAL,
MARIFE S. ALMAZAN, JONALD R. DALMACIO, JENNIFER C. PLAZA, RIZALDY B.
AGGABAO, VILMA T. VENTURA, BENEDICT B. PANGANIBAN, JOSE L. GOMBIO,
MELCHOR E. SORIANO, ZARINA C. PANGANIBAN, EMELITA D. TAUYA,
EVANGELINE A. SICAM, MATABAI AQUARIOUS Q. CULANG, MELVIN L. GARCIA,
JOHNNY N. YU, JR., LOIDA J. PURUGGANAN, EDUARDO S. VALENCIA, EDITHA A.
REGLOS, HENRY P. MAPALAD, RAMIL C. GALANG, JUSTINA M. MACASO,
MARTHA B. ALLAM, and ARSENIA A. CATAINA, respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari[1] assailing the Decision[2] dated May 21, 1999 and the
Resolution dated June 5, 2000 of the Court of Appeals in CA-G.R. SP No. 36997.
In the early part of 1988, Vice Mayor Amelita Navarro, while serving as Acting Mayor of the City of
Santiago because of the suspension of Mayor Jose Miranda, appointed the above-named respondents to
various positions in the city government. Their appointments were with permanent status and based on the
evaluation made by the City Personnel Selection and Promotion Board (PSPB) created pursuant to Republic
Act No. 7160.[3] The Civil Service Commission (CSC) approved the appointments.
When Mayor Jose Miranda reassumed his post on March 5, 1998 after his suspension, he considered
the composition of the PSPB irregular since the majority party, to which he belongs, was not properly
represented.[4] He then formed a three-man special performance audit team composed of Roberto C.
Bayaua, Antonio AL. Martinez and Antonio L. Santos, to conduct a personnel evaluation audit of those
who were previously screened by the PSPB and those on probation. After conducting the evaluation, the
audit team submitted to him a report dated June 8, 1998 stating that the respondents were found wanting in
(their) performance.
On June 10, 1998, or three months after Mayor Miranda reassumed his post, he issued an order
terminating respondents services effective June 15, 1998 because they performed poorly during the
probationary period.
 Respondents appealed to the CSC, contending that being employees on probation,[5] they can be
dismissed from the service on the ground of poor performance only after their probationary period of
six months, not after three (3) months. They also denied that an evaluation on their performance was
conducted, hence, their dismissal from the service violated their right to due process.
On October 19, 1998, the CSC issued Resolution No. 982717 reversing the order of Mayor Miranda
and ordering that respondents be reinstated to their former positions with payment of backwages, thus:
xxx

Granting that the complainant-employees (now respondents) indeed rated poorly, the question that
remains is whether they can be terminated from the service on that ground.

xxx

x x x, at the time of their termination the complainants have not finished the six (6) months probationary
period. x x x, they may be terminated even before the expiration of the probationary period pursuant to
Section 26, par. 1, Chapter 5, Book V, Title I-A of the Revised Administrative Code of 1987. Said
Section provides:

All such persons (appointees who meet all the requirements of the position) must serve a probationary
period of six months following their original appointment and shall undergo a thorough character
investigation in order to acquire a permanent civil service status. A probationer may be dropped from
the service for unsatisfactory conduct or for want of capacity anytime before the expiration of the
probationary period: Provided, that such action is appealable to the Commission.

It is, however, clear from the foregoing quoted provision that an employee on probation status may be
terminated only for unsatisfactory conduct or want of capacity. In this case, the services of the
complainants were terminated on the ground of poor performance x x x. Although poor
performance may come near the concept of want of capacity, the latter, as held by this
Commission, implies opportunity on the part of the head of office to observe the performance and
demeanor of the employee concerned (Charito Pandes, CSC Resolution No. 965592). At this point,
considering that Mayor Jose Miranda reassumed his post only on March 5, 1998 after serving his
suspension, it is quite improbable that he can already gauge the performance of the complainants
through the mere lapse of three months considering that the date of the letter of termination is June
10, 1998 and its effectivity date June 15, 1998.[6] (emphasis supplied)

Meanwhile, the COMELEC disqualified Mayor Jose Miranda as a mayoralty candidate in the 1998
May elections. His son Joel G. Miranda, herein petitioner, substituted for him and was proclaimed Mayor
of Santiago City. He then filed a motion for reconsideration of the CSC Resolution No. 982717 (in favor
of respondents) but it was denied in the CSC Resolution No. 990557 dated March 3, 1999.
Petitioner then filed with the Court of Appeals a petition for review on certiorari, docketed as CA-G.R.
SP No. 36997. On May 21, 1999, the Court of Appeals rendered a Decision affirming in toto the CSC
Resolution No. 982717. Forthwith, petitioner filed a motion for reconsideration, but before it could be
resolved by the Court of Appeals, several events supervened.This Court, in G.R. No. 136351, Joel G.
Miranda vs. Antonio M. Abaya and the COMELEC, set aside the proclamation of petitioner as Mayor of
Santiago City for lack of a certificate of candidacy and declared Vice Mayor Amelita Navarro as City
Mayor by operation of law.[7]
On December 20, 1999, Mayor Navarro filed with the Court of Appeals a Motion to Withdraw the
Motion for Reconsideration (previously submitted by former Mayor Joel G. Miranda).
 On June 5, 2000, the Court of Appeals denied petitioners motion for reconsideration of its Decision.
On June 11, 2000, the Court of Appeals granted Mayor Navarros Motion to Withdraw the Motion for
Reconsideration. In effect, the CSC Resolution reinstating respondents to their positions stays.
In this petition, petitioner Joel G. Miranda contends that the Court of Appeals erred in affirming the
CSC Resolution declaring that the termination of respondents services is illegal and ordering their
reinstatement to their former positions with payment of backwages.
In their comment, respondents claim that since petitioner ceased to be Mayor of Santiago City, he has
no legal personality to file the instant petition and, therefore, the same should be dismissed. They insist that
they were not actually evaluated on their performance. But assuming there was indeed such an evaluation,
it should have been done by their immediate supervisors, not by those appointed by former Mayor Jose
Miranda.
In his reply, petitioner contends that as a taxpayer, he has a legal interest in the case at bar, hence, can
lawfully file this petition.
Section 17, Rule 3 of the 1997 Rules of Civil Procedure, as amended, provides:

Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an
action in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the
action may be continued and maintained by or against his successor if, within thirty (30) days after the
successor takes office or such time as may be granted by the Court, it is satisfactorily shown by any party
that there is substantial need for continuing or maintaining it and the successor adopts or continues or
threatens to adopt or continue the action of his predecessor.

It is clear from the above Rule that when petitioner ceased to be mayor of Santiago City, the action
may be continued and maintained by his successor, Mayor Amelita Navarro, if there is substantial need to
do so.
Mayor Navarro, however, found no substantial need to continue and maintain the action of her
predecessor in light of the CSC Resolution declaring that respondents services were illegally terminated by
former Mayor Jose Miranda. In fact, she filed with the Court of Appeals aMotion to Withdraw the Motion
for Reconsideration (lodged by petitioner). She likewise reinstated all the respondents to their respective
positions and approved the payment of their salaries.
Petitioner insists though that as a taxpayer, he is a real party-in-interest and, therefore, should continue
and maintain this suit. Such contention is misplaced. Section 2, Rule 3 of the same Rules provides:

Section 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (emphasis supplied)

Even as a taxpayer, petitioner does not stand to be benefited or injured by the judgment of the suit. Not
every action filed by a taxpayer can qualify to challenge the legality of official acts done by the
government.[8] It bears stressing that a taxpayers suit refers to a case where the act complained
of directly involves the illegal disbursement of public funds from taxation.[9] The issue in this case is
whether respondents services were illegally terminated. Clearly, it does not involve the illegal
disbursement of public funds, hence, petitioners action cannot be considered a taxpayers suit.
At any rate, to put to rest the controversy at hand, we shall resolve the issue of whether respondents
services were illegally terminated by former Mayor Jose Miranda.
 The 1987 Constitution provides that no officer or employee of the civil service shall be removed or
suspended except for cause provided by law.[10] Under the Revised Administrative Code of 1987, a
government officer or employee may be removed from the service on two (2) grounds: (1) unsatisfactory
conduct and (2) want of capacity. While the Code does not define and delineate the concepts of these two
grounds, however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific
grounds for dismissing a government officer or employee from the service. Among these grounds are
inefficiency and incompetence in the performance of official duties. In the case at bar, respondents were
dismissed on the ground of poor performance. Poor performance falls within the concept of inefficiency
and incompetence in the performance of official duties which, as earlier mentioned, are grounds for
dismissing a government official or employee from the service.
But inefficiency or incompetence can only be determined after the passage of sufficient time, hence,
the probationary period of six (6) months for the respondents. Indeed, to be able to gauge whether a
subordinate is inefficient or incompetent requires enough time on the part of his immediate superior within
which to observe his performance. This condition, however, was not observed in this case. As aptly stated
by the CSC, it is quite improbable that Mayor Jose Miranda could finally determine the performance of
respondents for only the first three months of the probationary period.
Not only that, we find merit in respondents claim that they were denied due process. They cited Item
2.2 (b), Section VI of the Omnibus Guidelines on Appointments and Other Personnel Actions (CSC
Memorandum Circular No. 38, Series of 1993, as amended by CSC Memorandum Circular No. 12, Series
of 1994) which provides:

2.2. Unsatisfactory or Poor Performance

xxx

b. An official or employee who, for one evaluation period, is rated poor in performance, may be
dropped from the rolls after due notice. Due notice shall mean that the officer or employee
is informed in writing of the status of his performance not later than the fourth month
of that rating period with sufficient warning that failure to improve his performance
within the remaining period of the semester shall warrant his separation from the
service. Such notice shall also contain sufficient information which shall enable the
employee to prepare an explanation.[11] (emphasis supplied)

Respondents vehemently assert that they were never notified in writing regarding the status of their
performance, neither were they warned that they will be dismissed from the service should they fail to
improve their performance. Significantly, petitioner did not refute respondents assertion. The records show
that what respondents received was only the termination order from Mayor Jose Miranda. Obviously,
respondents right to due process was violated.
Moreover, respondents contend that the only reason behind their arbitrary dismissal was Mayor Jose
Mirandas perception that they were not loyal to him, being appointees of then Acting Mayor Navarro. This
contention appears to be true considering that all those who were accepted and screened by the PSPB during
the incumbency of Acting Mayor Navarro were rated to have performed poorly by an audit team whose
three members were personally picked by Mayor Jose Miranda.
The Constitution has envisioned the civil service to be a career service based on merit and rewards
system that will truly be accountable and responsive to the people and deserving of their trust and
support.[12] These noble objectives will be frustrated if the tenure of its members is subject to the whim of
partisan politics. A civil servant who lives in ceaseless fear of being capriciously removed from office every
time a new political figure assumes power will strive to do anything that pleases the latter. In this way, he
will hardly develop efficiency, accountability and a sense of loyalty to the public service. Such a climate
will only breed opportunistic, inefficient and irresponsible civil servants to the detriment of the public. This
should not be countenanced.
In fine, we hold that petitioner, not being a real party in interest, has no legal personality to file this
petition. Besides, his motion for reconsideration was validly withdrawn by the incumbent Mayor. Even
assuming he is a real party in interest, we see no reason to disturb the findings of both the CSC and the
Court of Appeals. The reinstatement of respondents who, unfortunately, were victims of political
bickerings, is in order.
WHEREFORE, the petition is DENIED. The assailed Decision dated May 21, 1999 of the Court of
Appeals in CA-G.R. SP No. 36997 is AFFIRMED.
Treble costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 96817 July 25, 1991

AGUSTIN B. DOCENA, petitioner,

vs.
THE SANGGUNIANG PANLALAWIGAN OF EASTERN SAMAR, GOVERNOR LUTGARDO
B. BARBO, VICE GOVERNOR CAMILO A. CAMENFORTE, BOARD MEMBERS MARCOS
ALIDO, NONATO GERNA, ISMAEL KHO, MARCELINO C. LIBANAN, NICOLAS
PIMENTEL, GENEROSO YU and ATTY. SOCRATES B. ALAR,respondents.

Zaldy B. Docena for petitioner.

CRUZ, J.:

Two persons are claiming the same position in the Sangguniang Panlalawigan of Eastern Samar by virtue
of separate appointments thereto extended to them by the same authority. The first appointment was
replaced by the second appointment, which was subsequently withdrawn to reinstate the first
appointment, but this was later itself recalled in favor of the second appointment. To add to the confusion,
the Sangguniang Panlalawigan has joined the fray and taken it upon itself to decide who as between the
two claimants is entitled to the office.
The case arose when Luis B. Capito, who had been elected to and was serving as a member of the
Sangguniang Panlalawigan of Eastern Samar (SPES) died in office and petitioner Agustin B. Docena was
appointed to succeed him.

The appointment was issued on November 19, 1990,1 by Secretary Luis T. Santos of the Department of
Local Government and read in full as follows:

Republic of the Philippines

Department of Local Government

PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila

OFFICE OF THE SECRETARY

November 19, 1990

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE
SANGGUNIANG PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing
this Office and the Civil Service Commission copies of your oath of office.

Very truly yours,

By Authority of the President

LUIS T. SANTOS
Secretary

Mr. AGUSTIN B. DOCENA

Thru: The Honorable Governor

Province of Eastern Samar

Pursuant thereto, the petitioner took his oath of office before Speaker Ramon V. Mitra of the House of
Representatives on November 22, 1990,2 and assumed office as member of the SPES on November 26,
1990.3

The record does not show why, but on November 27, 1990, private respondent Socrates B. Alar was
appointed, also by Secretary Luis T. Santos, to the position already occupied by Docena.4The
appointment read in full as follows:

Republic of the Philippines

 Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila

OFFICE OF THE SECRETARY

November 27, 1990

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE
SANGGUNIANG PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing
this Office and the Civil Service Commission with copies of your oath of office.

Very truly yours,

By Authority of the President

LUIS T. SANTOS
Secretary

Atty. SOCRATES ALAR

Thru: The Honorable Governor

Eastern Samar

On December 18, 990, the SPES passed Resolution No. 755 recognizing Alar rather than Docena as the
legitimate successor of the late Board Member Capito.

The following day, the SPES was in effect reversed by Secretary Santos when he addressed the following
letter to Alar:6

Republic of the Philippines

Department of Local Government

PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila

OFFICE OF THE SECRETARY

December 19, 1990

Mr. Socrates Alar

Borongan, Eastern Samar
Dear Mr. Alar:

It appearing from perusal of records that an appointment dated November 19, 1990 was already issued to
Mr. AGUSTIN DOCENA as member of the Sangguniang Panlalawigan of Eastern Samar, vice: Luis
Capito, the appointment issued to you dated November 27, 1990 as member of the same sanggunian, is
hereby recalled effective the date of issue.

Please be guided accordingly.

Very truly yours,

LUIS T. SANTOS
Secretary

cc: The Honorable Governor

Borongan, Eastern Samar
The Sangguniang Panlalawigan
Borongan, Eastern Samar
Mr. Agustin Docena
Borongan, Eastern Samar

This action was affirmed in a First Indorsement dated January 4, 1991, signed by Head Executive
Assistant Arturo V. Agundo of the Department of Local Government,7 in which he declared "by authority
of the Secretary" that

1. Records show that the Secretary has appointed Mr. Agustin B. Docena as Sangguniang
Panlalawigan Member as of November 19, 1990; the Secretary has extended another appointment
to the same post in favor of Atty. Socrates Alar on November 27, 1990; the Secretary, on
December 19, 1990, has recalled the appointment of Atty. Socrates Alar on the basis of the earlier
appointment extended in favor of Mr. Docena.

In view of the foregoing, the appointment of Mr. Agustin Docena stands and should be
recognized.

The reaction of the SPES was to pass, Resolution No. 1 dated January 8, 1991,8 where it reiterated its
previous recognition of Alar and declared that "the recall order issued by Secretary Santos, dated
December 19, 1990, recalling the appointment of Atty. Alar has no legal basis in fact and in law and
issued to fit his whimsical, capricious and wishy-washy desires to the detriment of decency and due
process of law.

On the same date, Provincial Prosecutor Dario S. Labrador had rendered an opinion that the recall order
of Secretary Santos was "void ab initio"' because Alar's right to the office "had become vested."9

It is not clear if Secretary Santos agreed with these views, but at any rate he issued on February 20, 1991,
another recall order.10 this time addressed to Docena, reading in full as follows:

Republic of the Philippines

 Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila

OFFICE OF THE SECRETARY

February 20, 1991

MEMORANDUM

TO: MR. AGUSTIN DOCENA

Borongan, Eastern Samar

SUBJECT: RECALL OF APPOINTMENT —

Please be informed that the appointment extended to you as Member of the Sangguniang Panlalawigan of
Eastern Samar, last November 19, 1990 is hereby recalled effective immediately.

You are hereby directed to turn-over the office to Mr. Socrates Alar who was appointed by this
Department on November 27, 1990, immediately upon receipt hereof.

For compliance.

LUIS T. SANTOS
Secretary

cc: The Honorable Governor

Province of Eastern Samar
Mr. Socrates Alar
Borongan, Eastern Samar

Docena then came to this Court in a petition for mandamus to compel the respondents to recognize and
admit him as a lawfully appointed member of the Sangguniang Panlalawigan of Eastern Samar. He also
seeks to hold them officially and personally liable in damages for their refusal to do so in spite of his clear
title to the disputed office.

Pending resolution of this case, we issued a temporary restraining order on January 31, 1991, enjoining
both Docena and Alar from assuming the office of member of the Sangguniang Panlalawigan of Eastern
Samar.

The pertinent legal provision is Section 50 of the Local Government Code reading as follows:

Sec. 50. Permanent Vacancies in Local Sanggunians. — In case of permanent vacancy in the
sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang
barangay, the President of the Philippines, upon recommendation of the Minister of Local
Government, shall appoint a qualified person to fill the vacancy in the sangguniang panlalawigan
and the sangguniang panlungsod; the governor, in the case of sangguniang bayan members; or the
city or municipal mayor, in the case of sangguniang barangay members. Except for
 the sangguniang barangay, the appointee shall come from the political party of the sanggunian
member who caused the vacancy, and shall serve the unexpired term of the vacant office.

The petitioner makes the point, and it has not been disputed by the respondents, that both he and Capito
ran for the provincial board in the 1988 elections under the banner of Lakas ng Bansa. Later, they both
joined the Laban ng Demokratikong Pilipino under the leadership of Speaker Mitra, who administered the
oath of office to him when he was appointed to the SPES on November 19, 1990. Docena argues that he
has a preferential right to the disputed office even on equitable grounds because he placed ninth in the
election, next to Capito, compared to Alar who did not even run for the office.

The respondents do not challenge the qualifications of the petitioner. But they contend that the
appointment in his favor on November 19, 1990, had been superseded by the appointment in favor of Alar
on November 27, 1990, and that the recall of the second appointment on December 19, 1990, was null
and void ab initio for lack of previous hearing. Curiously, they do not have the same view of the recall of
Docena's appointment on February 20, 1991, which was also issued without hearing.

From the tenor of the appointment extended to Docena on November 19, 1990, there is no question that it
was intended to be permanent, to fill the permanent vacancy caused by Capito's death. As such, it was to
be valid for the unexpired portion of the term of the deceased member, who was entitled to serve "until
noon of June 30, 1992," in accordance with Article XVIII, Section 2, of the Constitution.

The said appointment had been accepted by Docena, who had in fact already assumed office as member
of the SPES as per certification of the Provincial Secretary.11 For all legal intents and purposes, the
petitioner's appointment had already become complete and enforceable at the time it was supposed to
have been "superseded" by the appointment in favor of Alar.

The respondents are ambivalent about the power of the Secretary of Local Government to recall his
appointments. They described the appointment as "whimsical, capricious and wishy-washy" but they had
no similar complaints about the recall of Docena's appointment although also apparently indecisive. On
the contrary, they maintained a deep silence about this other recall and insisted simply that the subsequent
appointment of Alar had invalidated the earlier appointment of Docena.

It is noteworthy that absolutely no reason was given for the recall of Docena's appointment (or for that
matter, the recall of Alar's appointment). It appears that after appointing Docena and later twice sustaining
his title to the office, Secretary Santos simply had a change of heart and decided to award the position to
Alar.

This is not the way things are done in a democracy.

Docena's appointment having been issued and accepted earlier, and the petitioner having already assumed
office, he could not thereafter be just recalled and replaced to accommodate Alar. The appointment was
permanent in nature, and for the unexpired portion of the deceased predecessor's term. Docena had
already acquired security of tenure in the position and could be removed therefrom only for any of the
causes, and conformably to the procedure, prescribed by the Local Government Code.12 These
requirements could not be circumvented by the simple process of recalling his appointment.

Whatever gave the SPES the impression that the questioned appointments were revocable at will can only
be left to conjecture; what is certain is that it was not based on careful legal study. The Provincial
Prosecutor's opinion that the office had "become vested" in Alar suffers from the same flaw and a lack of
understanding of the nature of a public office. Political rather than legal considerations seem to have
influenced the action of the provincial government in rejecting the petitioner's claim despite its obvious
merit.

The respondents also argue that the petitioner should have sought to enforce his claimed right in a petition
not for mandamus but for quo warranto, as his purpose is to challenge Alar's title to the disputed office.
That is only secondary in this case. The real purpose of the present petition is to compel the respondent
SPES to recognize and admit Docena as a member of the body by virtue of a valid appointment extended
to him by the Secretary of Local Government.

Mandamus is employed to compel the performance of a ministerial duty to which the petitioner is
entitled.1âwphi1 In arguing that the recognition and admission of the petitioner is not a ministerial duty,
the respondents are asserting the discretion to review, and if they so decide, reject, the Secretary's
appointment. They have no such authority. Faced with a strictly legal question, they had no right and
competence to resolve it in their discretion. What they should have done was reserve their judgment on
the matter, leaving it to the courts of justice to decide which of the conflicting claims should be upheld.
As a local legislative body subject to the general supervision of the President of the Philippines, the SPES
had no discretion to rule on the validity of the decisions of the Secretary of Local Government acting as
her alter ego.

Even assuming that the proper remedy is a petition for quo warranto, the Court may in its own discretion
consider the present petition a. such and deal with it accordingly. We find that as a petition for quo
warranto, it complies with the prescribed requirements, to wit, that it be filed on time and by a proper
party asserting title to the office also claimed by the respondent. Acting thereon, we hold that Docena has
proved his right to the disputed office and could not be legally replaced by Alar.

The Court will make no award of damages, there being no sufficient proof to overcome the presumption
that the respondents have acted in good faith albeit erroneously. Nevertheless, the petitioner is entitled to
the payment of the salaries and other benefits appurtenant to the office of a Member of the Sangguniang
Panlalawigan of Eastern Samar, from the time of his assumption of office and until he is actually admitted
or reinstated.

WHEREFORE, the petition is GRANTED. The petitioner is DECLARED the lawfully appointed member
of the Sangguniang Panlalawigan of Eastern Samar, which is hereby DIRECTED to admit or reinstate
him as such. The temporary restraining order dated January 31, 1991, is LIFTED. No costs.

SO ORDERED.

EN BANC

NORLAINIE MITMUG LIMBONA, G.R. No. 186006

Petitioner,
 Present:
PUNO, C.J.,*
QUISUMBING, Acting C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
- versus - VELASCO, JR.,*
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,** and
ABAD, JJ.
COMMISSION ON ELECTIONS and
MALIK BOBBY T. Promulgated:
ALINGAN,
Respondents. October 16, 2009
x-----------------------------------------------------------------------------------------x

RESOLUTION

NACHURA, J.:

Before this Court is a Petition for Certiorari under Rule 65, in relation to Rule 64, assailing the
Resolution[1] dated November 23, 2007 of the Second Division of the Commission on Elections (Comelec)
and the Resolution[2] of the Comelec En Banc dated January 14, 2009 in SPA No. 07-621.

The factual and procedural antecedents are as follows:

Prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her husband,
Mohammad Exchan Limbona, each filed a Certificate of Candidacy for Mayor of Pantar, Lanao del Norte.
On April 2, 2007, private respondent Malik Bobby Alingan filed a disqualification case against Mohammad
before the Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also filed a
petition for disqualification against petitioner.[3] Both disqualification cases were premised on the ground
that petitioner and her husband lacked the one-year residency requirement and both were not registered
voters of Pantar.[4]

On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of

candidacy,[5] which was subsequently approved by the Comelec.[6] Petitioner also filed a Motion to Dismiss
the disqualification case against her for being moot and academic.[7]
 On election day, May 14, 2007, the Comelec resolved to postpone the elections in Pantar because
there was no final list of voters yet. A special election was scheduled for July 23, 2007.[8]

On May 24, 2007, the Comelec First Division promulgated a Resolution disqualifying Mohammad
as candidate for mayor for failure to comply with the one-year residency requirement.[9] Petitioner then
filed her Certificate of Candidacy as substitute candidate on July 21, 2007. On July 23, 2007, Alingan filed
a petition for disqualification against petitioner for, among others, lacking the one-year residency
requirement (SPA No. 07-621).[10]

In a Resolution in SPA No. 07-621[11] dated November 23, 2007, the Comelec Second Division
ruled that petitioner was disqualified from running for Mayor of Pantar. The Comelec held that petitioner
only became a resident of Pantar in November 2006. It explained that petitioners domicile of origin was
Maguing, Lanao del Norte, her birthplace. When she got married, she became a resident
of Barangay Rapasun, Marawi City, where her husband was Barangay Chairman until November
2006. BarangayRapasun, the Comelec said, was petitioners domicile by operation of law under the Family
Code. The Comelec found that the evidence petitioner adduced to prove that she has abandoned her
domicile of origin or her domicile in Marawi City two years prior to the elections consisted mainly of self-
serving affidavits and were not corroborated by independent and competent evidence. The Comelec also
took note of its resolution in another case where it was found that petitioner was not even a registered voter
in Pantar. Petitioner filed a Motion for Reconsideration.[12]

The Comelec resolved the motion in an En Banc Resolution dated January 14, 2009,[13] affirming
the Second Divisions Resolution disqualifying petitioner. The Comelec said that the issue of whether
petitioner has complied with the one-year residency rule has been decided by the Supreme Court
in Norlainie Mitmug Limbona v. Commission on Elections and Malik Bobby T. Alingan promulgated on
June 25, 2008. The Comelec noted that, in said case, the Supreme Court upheld the Comelec First Divisions
Decision in SPA No. 07-611 disqualifying petitioner from running for mayor of Pantar for failure to comply
with the residency requirement.

Petitioner is now before this Court assailing the Comelecs November 23, 2007 and January 14,
2009 Resolutions. She posits that the Comelec erred in disqualifying her for failure to comply with the one-
year residency requirement. She alleges that in a disqualification case against her husband filed by Nasser
Macauyag, another mayoralty candidate, the Comelec considered her husband as a resident of Pantar and
qualified to run for any elective office there. Petitioner avers that since her husband was qualified to run in
Pantar, she is likewise qualified to run.[14]
 Petitioner also stresses that she was actually residing and was physically present in that
municipality for almost two years prior to the May 2007 elections. During the time she had been residing
in Pantar, she associated and mingled with residents there, giving her ample time to know the needs,
difficulties, aspirations, and economic potential of the municipality. This, she said, is proof of her intention
to establish permanent residency there and her intent to abandon her domicile in Marawi City.

She next argues that, even as her husband was Punong Barangay of Rapasun, Marawi City, he
never abandoned Pantar as his hometown and domicile of origin. She avers that the performance of her
husbands duty in Rapasun did not prevent the latter from having his domicile elsewhere. Hence, it was
incorrect for the Comelec to have concluded that her husband changed his domicile only on November 11,
2006.[15] At the very least, petitioner says, the Comelecs conflicting resolutions on the issue of her husbands
residence should create a doubt that should be resolved in her and her husbands favor.[16]

She further contends that to disqualify her would disenfranchise the voters of Pantar, the
overwhelming majority of whom elected her as mayor during the July 23, 2007 special elections.[17]

The Comelec, through the Office of the Solicitor General (OSG), filed its Comment, insisting that the
Comelec correctly disqualified petitioner from running as mayor for lack of the one-year residency
requirement.[18] The OSG argues that there is no evidence that petitioner has abandoned her domicile of
origin or her domicile in Marawi City.[19]Moreover, the OSG said that this Court has ruled on the issue of
petitioners residency in Norlainie Mitmug Limbona v. Commission on Elections and Malik Bobby T.
Alingan.[20]Lastly, the OSG contends that the Comelecs ruling in Nasser A. Macauyag v. Mohammad
Limbona is not binding on petitioner because she was not a party to the case.[21]

We dismiss the Petition.

The issue of petitioners disqualification for failure to comply with the one-year residency requirement has
been resolved by this Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik Bobby T.
Alingan.[22] This case stemmed from the first disqualification case filed by herein respondent against
petitioner, docketed as SPA No. 07-611. Although the petitioner had withdrawn the Certificate of
Candidacy subject of the disqualification case, the Comelec resolved the petition and found that petitioner
failed to comply with the one-year residency requirement, and was, therefore, disqualified from running as
mayor of Pantar.
A unanimous Court upheld the findings of the Comelec, to wit:

WHEREFORE, the petition for certiorari is DISMISSED. The September 4,

2007 Resolution of the Commission on Elections in SPA Case No. 07-611 disqualifying
petitioner Norlainie Mitmug Limbona from running for office of the Mayor of Pantar,
Lanao del Norte, and the January 9, 2008 Resolution denying the motion for
reconsideration, are AFFIRMED. In view of the permanent vacancy in the Office of the
Mayor, the proclaimed Vice-Mayor shall SUCCEED as Mayor. The temporary restraining
order issued on January 29, 2008 is ordered LIFTED.

SO ORDERED.[23]

The Court found that petitioner failed to satisfy the one-year residency requirement. It held:

The Comelec correctly found that petitioner failed to satisfy the one-year residency
requirement. The term residence as used in the election law is synonymous with domicile,
which imports not only intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention. The manifest intent of the
law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted
with the conditions and needs of a community and not identified with the latter, from an
elective office to serve that community.

For purposes of election law, the question of residence is mainly one of intention. There is
no hard and fast rule by which to determine where a person actually resides. Three rules
are, however, well established: first, that a man must have a residence or domicile
somewhere; second, that where once established it remains until a new one is acquired;
and third, a man can have but one domicile at a time.

In order to acquire a domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. A persons domicile once established is considered to continue
and will not be deemed lost until a new one is established.

To successfully effect a change of domicile one must demonstrate an actual

removal or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one, and definite acts which correspond with the
purpose. In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.

Petitioners claim that she has been physically present and actually residing in Pantar for
almost 20 months prior to the elections, is self-serving and unsubstantiated. As correctly
observed by the Comelec:

In the present case, the evidence adduced by respondent, which

consists merely of self-serving affidavits cannot persuade Us that she has
abandoned her domicile of origin or her domicile in Marawi City. It is
 alleged that respondent has been staying, sleeping and doing business in
her house for more than 20 months in Lower Kalanganan and yet, there is
no independent and competent evidence that would corroborate such
statement.

Further, We find no other act that would indicate respondents

intention to stay in Pantar for an indefinite period of time. The filing of her
Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold
that she has chosen Pantar as her new residence. We also take notice of the
fact that in SPA No. 07-611, this Commission has even found that she is
not a registered voter in the said municipality warranting her
disqualification as a candidate.

We note the findings of the Comelec that petitioners domicile of origin is Maguing,
Lanao del Norte, which is also her place of birth; and that her domicile by operation of law
(by virtue of marriage) is Rapasun, Marawi City. The Comelec found that Mohammad,
petitioners husband, effected the change of his domicile in favor of Pantar, Lanao del Norte
only on November 11, 2006. Since it is presumed that the husband and wife live together
in one legal residence, then it follows that petitioner effected the change of her domicile
also on November 11, 2006. Articles 68 and 69 of the Family Code provide:

Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual help and
support.

Art. 69. The husband and wife shall fix the family domicile. In
case of disagreement, the court shall decide. The court may exempt one
spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Emphasis ours)

Considering that petitioner failed to show that she maintained a separate residence
from her husband, and as there is no evidence to prove otherwise, reliance on these
provisions of the Family Code is proper and is in consonance with human experience.
Thus, for failure to comply with the residency requirement, petitioner is
disqualified to run for the office of mayor of Pantar, Lanao del Norte. x x x.[24]

Petitioners Motion for Reconsideration of the above-quoted Decision was denied with finality on March 3,
2009.[25] Petitioner filed another Motion for Reconsideration,[26]which the Court treated as a Second Motion
for Reconsideration and, consequently, denied in a Resolution dated June 2, 2009.[27] Of late, petitioner has
filed a Manifestation that raises yet again the issues already resolved in the petition and which the Court
has, accordingly, merely noted without action.[28] Thus, our ruling therein has now attained finality.

Consequently, the issue of petitioners compliance with the one-year residency requirement is now
settled. We are bound by this Courts ruling in the earlier Limbona case where the issue was squarely raised
and categorically resolved. We cannot now rule anew on the merits of this case, especially since the present
Petition merely restates issues already passed upon by the Comelec and affirmed by this Court.

WHEREFORE, the foregoing premises considered, the Petition is DISMISSED and the
Resolution dated November 23, 2007 of the Second Division of the Commission on Elections and the
Resolution of the Commission on Elections En Banc dated January 14, 2009 in SPA No. 07-621
are AFFIRMED.

SO ORDERED.