IBAŅEZ, Celina Z.
Re: Termination of Services; Reorganization
        Decision of RTC Directing Payment of
        Separation Pay of Employees who Opted
        to Retire; Request for Opinion
x------------------------------------------------------------x



RESOLUTION NO. 02-0435



          Celina Z. Ibaņez, Information Officer III, City Government of Cadiz, requests a ruling on whether there is a legal impediment to her reappointment as Information Officer III in the City Government (as directed by the Commission in Civil Service Commission Resolution No. 01-1203 dated July 16, 2001) in view of the decision by the Regional Trial Court dated June 20, 2001 directing instead the payment of separation pay and other benefits to those employees who opted to retire during the reorganization. The instant request was made because Ibaņez previously applied for the payment of her termination leave pay as a result of the reorganization but subsequently questioned the validity thereof before the Commission and thereafter she was one of the employees ordered by this Commission to be reappointed.

          In her request, Ibaņez represented, as follows:

          "Since Mayor Varela was defeated in the last Local election, Mayor Salvador Escalante, the newly elected city mayor, was ordered by the Commission through CSC Resolution No. 011203 to execute and implement the order by reinstating or re-appointing us to the next similar or comparable position in the new staffing pattern.

          "Subsequently I and my group were re-appointed to the next similar/comparable position last July 1, 2001 in compliance with the writ of execution ordered by the honorable commission. I was appointed as Information Officer III next or lower to my former position, Information Officer IV xxx.

          "Recently, the civil case filed by some of terminated employees in the Regional Trial Court of Cadiz City, won and declared the following: the reorganization is null and void, 166 terminated employees were ordered to be reinstated with full back wages. However, item no. 3 of the said order barred the reinstatement of employees who opted to retire and had claimed separation benefit. Xxx

          "There are 49 employees who had claimed terminal, separation and retirement benefits. Some of them were already 60 years and above, old age and physically unfit. Few of us had filed our complaint or appeal to the Civil Service Commission questioning the validity of our termination.

          "To those of us who obtained retirement and separation benefits but was ordered by the Civil Service Commission to be reinstated or re-appointed are in a dilemma as to the status of our reinstatement.

          "The City Mayor had issued an Executive Order implementing the Decision of Court, Section 4 of Civil Case No. 547-C xxx suspending the reinstatement of those who obtained retirement benefits which takes effect on August 10, 2001 to which our services is also terminated. Our reinstatement was held in abeyance until it is settled by the proper authorities.

          "In this connection, I am again requesting the honorable commission to give us their opinion on the following query:

`1. Does obtaining retirement and separation benefits prevent me from re-instatement or re-appointment despite of the reinstatement/re-appointment order of the commission?

`2. Does the Supreme Court Ruling on Yulo vs. the CSC case (219 SCRA 470-479) where the appellants had also received separation and terminal benefits but still ordered by the supreme court to reinstate with full back wages less the amount of what they received, also applicable to our case?

`3. If reinstatement is ordered, are we entitled for back wages?

`4. If we cannot be reinstated and desired to re-apply in the same position, are we entitled to be appointed to the same position or grade level?’

          "We are hoping that the honorable commission will give us their immediate attention and have their opinion in an earliest possible time. We are also praying for our reinstatement and the amount we received will also be deducted in the back wages for the continuity of our services."

          Submitted together with the request are the copies of the Writ of Execution in Civil Case No. 574-C in the case of Daisy Revalez, et al. versus Honorable Mayor Eduardo C. Varela, Mayor of Cadiz City as the plaintiff and defendant, respectively, issued by Christy E. Uriarte, Clerk of Court VI and Ex-Officio Sheriff of Regional Trial Court of Negros Occidental and Executive Order No. 10-SGE-2001 (An Order Directing the Implementation of the Decision of in Civil Case No. 547-C, For the Plaintiffs Entitled to Reinstatement to Assume Their Office on August 10, 2001 and For Other Purposes) issued by incumbent Mayor Salvador Escalante.

          It may be recalled that Celina Z. Ibaņez, Lilia C. Bayot, Jocelyn S. Buenafe, Susan A. Ascura, Romeo C. Gonzales, Jesusa B. Castillano, Percival V. Balela, Lilia F. Paragsa, Fernando E. Olaira and MarianoE. Edullan, all employees of the City Government of Cadiz, jointly filed their appeal before the Commission questioning the validity of their separation from the service as a result of the reorganization undertaken by said city. The reorganization was authorized through Resolution No. 98-112, Series of 1998 enacted by the Sangguniang Panlungsod of said City.

          In CSC Resolution No. 00-1132 dated May 4, 2000, the Commission declared not in order Ibaņez, et al.’s separation from the service. In said resolution, the Commission directed Mayor Varela to reappoint said affected employees to positions equivalent or comparable to the positions previously held by them. A motion for reconsideration was interposed by the Mayor assailing the resolution. Pending the decision of said motion, Ibaņez, et al. filed a Motion to Resolve Pending Incident. Apparently, the motion prays that the decision be executed pending reconsideration of the Mayor.

          On February 8, 2001, the Commission denied Mayor Varela’s motion for reconsideration in CSC Resolution No. 01-0399. Henceforth, the records do not show that a relief was taken by the Mayor from said decision either before the Commission a quo or courts of law.

          Thereafter Ibaņez, et al. moved for the execution of CSC Resolution No. 00-1132. The Commission granted the same in CSC Resolution No. 01-0730 dated April 2, 2001. Without the Commission being furnished a copy of the pertinent pleading, Mayor Varela filed a Petition for Review to CSC Resolution 01-0730 before the Court of Appeals and is now pending consideration thereat.

          Records further show that Mayor Varela ran for a reelection on May 14, 2001 but lost to Salvador Escalante. Upon the assumption of the latter as the City Mayor, the Commission, in CSC Resolution No. 01-1203, directed him to implement the reinstatement of the employees of the city who were unlawfully terminated by former Mayor under different decisions by the Commission, as follows: CSC Resolution Nos. 00-1165 (Bedayos, Mary Grace, et al.), 00-1132 (Ibaņez, Celina, et al.) and 99-2624 (Revalez, Daisy). In compliance to the order of implementation, incumbent Mayor Escalante re-appointed all of said employees into the new staffing pattern on January 1, 2001. Ibaņez was re-appointed as Information Officer III considering that the position of Information Officer IV which she formerly held has been abolished.

          On the basis of the documents submitted in this request, it appears that certain reorganized out employees filed simultaneously (with the appeal from their separation from the service before the Commission) a civil case before the Regional Trial Court (RTC) of Negros Occidental seeking the nullification of Sangguniang Panglunsod Resolution No. 98-112. The filing and the pendency of said case was not disclosed to the Commission.

          On June 20, 2001, the RTC rendered a favorable judgment. A copy of said decision was not, however, furnished the Commission. In the Writ of Execution, it declared SP Resolution No. 98-112 null and void and ordered the reinstatement in the service all the plaintiffs with payment of backwages commencing from January 1, 1999. Likewise directed is the payment of separation and other benefits for the plaintiffs who opted to retire or can no longer be reinstated in the service. For emphasis, the pertinent portions of Writ of Execution dated August 31, 2001 read, as follows:

"1. Declaring Resolution No. 98-112, series of 1998, of the Sangguniang Panlungsod of Cadiz City, NULL and VOID;

"2. Ordering the immediate reinstatement of all plaintiffs to their employment in the City Government of Cadiz with payment of back wages from January 1, 1999 until fully reinstated to their former positions or their equivalent without loss of seniority rights and benefits, under existing laws;

"3. Ordering the payment of separation and other benefits for plaintiffs who opted to retire or cannot be reinstated;

"4. Ordering the defendant to pay each of the plaintiffs P10,000.00 as moral damages;

"5. Ordering defendant to pay plaintiffs attorney’s fees of P200,000.00, litigation expenses of P20,000.00 and court appearance fees at rate of P3,000.00 per hearing.

          "The counterclaim of defendant is dismissed for lack of merit.

          "WHEREAS, on Motion for Execution Pending the Appeal, this Court issued an Order dated July 25, 2001, which reads:

          "This is to resolve plaintiff’s Motion for Execution Pending Appeal. The Court heard the parties on July 11, 2001.

          "Plaintiffs argue that many of plaintiffs are beyond the threshold of middle age and further delay in the implementation of reinstatement to their former position would only exacerbate the precarious economic condition they are now in. Most of them are financially distressed and living on the charity of relatives and friends. Their children have lost two years of their quest for education and better life. Not a few are facing foreclosures on mortgages they have unwillingly entered into have the money to tide them over. A few have died, and many have gotten sick. Any delay would drive deeper the knife of injustice, which had inflicted untold injury and misery.

          "As provided for in Section 2(a) of Rule 39, of the 1997 Rules of Civil Procedure, let a Writ of Execution Pending Appeal issues.

          "The Clerk of Court is directed to issue the corresponding Writ of Execution.

          "SO ORDERED.

          "Cadiz City, July 25, 2001."

          In compliance with the Writ, incumbent Mayor Escalante issued Executive Order No. 10-SGE-2001 dated August 9, 2001. Under Section 4 thereof, the reinstatement of those employees who opted to retire were held in abeyance by the Mayor. Their reinstatement was conditioned on the full settlement by the proper authorities of the issue of whether or not reinstated employees pursuant to CSC Resolutions and who previously applied for payment of terminal leave pay will no longer be reinstated but be paid instead their retirement benefits. Based on the records of the Commission, Ibaņez was among those employees who applied for the payment of terminal leave pay but who nonetheless questioned their separation from the service. However, it is unclear whether she was among those plaintiffs ordered by the RTC to receive instead payment of separation and other benefits. Pertinently, the Section reads, as follows:

          "Section 4. Suspension of Reinstatement of Plaintiffs who Obtained Retirement Benefits. – The reinstatement of those plaintiffs who opted to retire under any retirement law shall, in the meantime, be held in abeyance until the issue on their entitlement to reinstatement shall have been fully settled by the proper authorities. The City Legal Officer is hereby directed to settle this issue not later than August 20, 2001."

          Subsequently, records show that the City Government informed the Commission of the reinstatement of the separated employees in the service and the appropriation and funding of their salaries in compliance to aforementioned writ of execution issued by the court. This information was contained in a letter dated September 25, 2001 sent by Atty. Michael S. Borromeo, City Legal Officer. Accordingly, excluded from the reinstatement in the service are those who have reached the compulsory retirement age.

          Taking into account the fact that the Commission in CSC Resolution 00-1132 allowed Ibaņez to question her termination notwithstanding her application for retirement benefits following the decision of the Supreme Court in Yulo vs. CSC (219 SCRA 470) and had in fact ordered her reinstatement in CSC Resolution Nos. 01-0730 and 01-1203 vis-a-vis the ruling of the RTC ordering the payment of retirement benefits to those plaintiffs who opted to retire, Ibaņez is inquiring if there is a legal impediment to her re-appointment considering her application for retirement and collection of terminal leave pay.

          The issue is squarely settled in the case of Yulo vs. CSC wherein the Supreme Court unequivocally declared that employees who opted to retire as a result of reorganization and thereafter received their separation benefits are not precluded from assailing their termination and claim for reinstatement. Pertinently, said ruling reads, as follows:

          "Neither can we sustain petitioner’s claim that the overt acts of Mamplata, et al. in filing their separation clearances and accepting terminal leave benefits estop them from further claiming reinstatement. xxx In any event, receipt by private respondents of their separation benefits does not preclude them from assailing the termination of their services and praying for their reinstatements."

          The fact that the employees illegally dismissed received their terminal leave pay cannot be considered as waiver of their right to question the termination of their services (Urgelio vs. Osmena, Jr., 10 SCRA 253). This is reiterated in CSC Resolution No. 99-1068 (Mary Grace Bedayos, et al. dated May 21, 1999), to wit:

          "x x x the fact that the appellants applied for the payment of their terminal leave. Said act cannot be construed as acquiescence to the termination and will not estop them from questioning the legality of their separation from the service."

          The Commission takes notice of Ibaņez financial condition at the time she was informed of her separation from the service. Low salaried, as she is, without stable and fixed source of income other than those coming from her employment in government, naturally, she will succumb to the monetization of her leave credit, it being the immediate source of financial relief. She cannot, therefore, be faulted to have applied for and collected the benefit in order to feed her family.

          Relative to question of whether the ruling of the Supreme Court in the aforementioned, Yulo case wherein it directed for the reinstatement of the separated employees and payment of backwages deducting therefrom the amount received by said employees representing the separation and terminal benefits finds application to her and other employees similarly reiterated, the answer is in the affirmative. The Supreme Court is unequivocal in the matter. In the dispositive portion, it ruled that the amount received by the affected employees as their separation and terminal benefits shall be deducted from the backwages awarded to them. For clarity, the dispositive portion of the pertinent case is reproduced hereunder en toto:

          "WHEREFORE, the petition is DISMISSED for lack of merit. Accordingly, the Municipality of Calamba, Laguna is hereby ordered to REINSTATE the twenty (20) personnel named in CSC Resolution No. 90-472 and pay their backwages equivalent to five (5) years (Cristobal v. Melchor, 78 SCRA 175 [1997]; Ginzon v. Municipality of Murcia, 158 SCRA 1 [1988]) less the amount of terminal pay received, it appearing from private respondents manifestation dated January 11, 1993 that they are still jobless from the time of their removal from the service up to the present."

          As regards the payment of backwages in case reinstatement is ordered, the answer is also in the affirmative. It should be stressed that when a government employee is declared to have been illegally dismissed and reinstatement was later on ordered, for all intents and purposes he is considered as not to have left his office. Thus, he is entitled to all the right and privileges and emoluments that accrue to him by virtue of his office (Taņala vs. Legaspi, 13 SCRA 567 cited in CSC Resolution No. 94-5306 Orogo, Manuel T.). In Ibaņez’ case, her separation from the service was declared not in order, consequently, she is entitled to receive backsalaries.

          Finally, on the issue of her reappointment. The Commission sees no legal impediment to her reappointment. Section 4 of Republic Act No. 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization) explicitly provides that officers and employees holding permanent appointments enjoy preferential right of reappointment to their former position or in case there are not enough comparable positions, to positions next lower in rank. Thus, one’s entitlement to be reappointed in a position in the new staffing pattern is guided by the rule of preference . Needless to say, the employee should possess the qualifications required of the position (Section 6, supra).

          Considering that Ibaņez was already issued a re-appointment as Information Officer III on January 1, 2001 and presumably assumed the duties of the office, such appointment can no longer be withdrawn much less withheld pursuant to the order of RTC. Section 1, Rule IV of MC No. 40, s. 1998 provides:

          "SEC. 1. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance."

          Thus, an appointment proposed as permanent and approved as such by the Commission cannot unilaterally be withdrawn or held in abeyance. This is so because upon its issuance and the appointee’s assumption, the latter acquired a vested right not merely equitable right such that she can only be removed for cause.

          At this juncture, it bears to stress that the jurisdiction over cases involving reorganization in national as well as local government is vested by law to the Commission. Section 8 of Republic Act No. 6656 expressly bestows upon the Commission the authority to decide appeals filed by employees aggrieved by appointments or non-appointments resulting from reorganization. Section 8 reads, as follows:

          "SECTION 8. An officer or employee who is still not satisfied with the decision of the appointing authority may further appeal within ten (10) days from receipt thereof to the Civil Service Commission which shall render a decision within thirty (30) days from filing thereof."

          Thus, the Commission shall render a decision within thirty (30) days from the filing of the appeal. Its decision shall be final and executory (Section 19 (3), Rules on Government Reorganization) unless a seasonal relief is taken therefrom before the Court of Appeals via a petition for review under Rule 43 of the Rules of Court. Therefore, in the absence of any declaration/pronouncement from the Court of Appeals or Supreme Court reversing or modifying the final decision of this Commission, the order of the Regional Trial Court cannot operate to bar or hold in abeyance, muchless qualify this Commission’s order of reinstatement/reappointment.

          WHEREFORE, the Civil Service Commission rules that there is no legal impediment to the reappointment of Celina Z. Ibaņez to the position of Information Officer III. Accordingly, the Decision of the Regional Trial Court dated June 20, 2001 directing for the payment of separation pay to employees who opted to retire shall not operate to bar or hold in abeyance the implementation of Civil Service Commission Resolution No. 01-1230 dated June 16, 2001 directing for her reinstatement in the service in consonance to the ruling of Supreme Court in the of Yulo vs. CSC (219 SCRA 470).

          The Commission further rules that employees ordered by the Commission to be reappointed in the new staffing pattern pursuant to the Resolution is entitled to receive backsalaries computed from the time they were unlawfully dismissed until actual reinstatement. From the amount of the backwages awarded, there shall be deducted any amounts received as terminal pay.

          Finally, employees who cannot be reinstated in the new staffing pattern pursuant to the provision of Republic Act No. 6656 are entitled to separation and retirement benefits in accordance with Section 21 of the Rules in Government Reorganization.

          Quezon City, March 20, 2002.



  (Signed)
JOSE F. ERESTAIN, JR.
Commissioner
(Signed)
KARINA CONSTANTINO-DAVID
Chairman
   
   
(Signed)
J. WALDEMAR V. VALMORES
Commissioner
 
Attested by:


(Signed)
ARIEL G. RONQUILLO
Director III


CPS.AGR.pvp.cm09-2002
FPG/JTS/RTM/X1/X8/jca171
NDC-99-0858
20010828-027 /ibaņez’r