[G.R. No. L-65439. November 13, 1985.]
PAMANTASAN NG LUNGSOD NG MAYNILA, Petitioner, v. HON. INTERMEDIATE APPELLATE COURT, HON. FILEMON FERNANDEZ, JR., HON. ALBINA MANALO-DANS, as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, Respondents.
Office of the Legal Officer for petitioner.
D E C I S I O N
GUTIERREZ, JR., J.:
The sole issue raised in this petition is the statue of respondent Hernani Esteban’s appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the position in a permanent capacity as to guarantee his security of tenure.
Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its temporary and contractual nature such that the respondent may be dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty-five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a ‘Notification of Confirmation of Temporary Appointment’ dated June 28, 1973. His appointment was ‘effective May 21, 1973 until June 30, 1974, unless sooner terminated.’ On July 5, 1974, the Secretary of Pamantasan sent him a ‘Notification of Renewal of Temporary Appointment’ indicating that his appointment was renewed ‘effective July 1, 1974 until August 31, 1974.’
A month later, on August 30, 1974, he received from the University Secretary another ‘notification of renewal of temporary appointment’ informing him that the Board of Regents, on recommendation of the President of the University approved the renewal of his appointment ‘effective September 1, 1974 until June 30, 1975’ with an increased salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment as vice-president for administration at a salary of P17,600 per annum had been renewed effective September 1, 1974 until June 30, 1975.
On June 26, 1975, he received another ‘Notification of Renewal of Temporary Appointment’ as Vice-President for Administration with a salary of P21,276 per annum, ‘effective July 1, 1975 until June 30, 1976.’
On July 26, 1975, Dr. Esteban discovered that he was not included in the list of employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary appointment to a permanent one, considering his two and half (2 1/2) years service.
On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various reasons for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a ‘Notification of Ad Interim Appointment notifying him that the president of the university had approved his appointment as Professor III with a salary of P15,600 per annum ‘effective August 1, 1975’. He was further designated as Director of the Institute of Continuing Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban’s appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the protection of his tenure in the Pamantasan.
On October 9, 1975, the Civil Service Commission ruled that:jgc:chanrobles.com.ph
"The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the case, his services may be terminated at any time with or without cause. As to his request that he be extended permanent appointment, or that his temporary appointment be converted into a permanent one, it may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing official."cralaw virtua1aw library
Dr. Esteban filed a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban’s motion. It stated that he was fully qualified for the position of Vice-President for Administration and certified him "for appointment therein under permanent status." The Commission stated:jgc:chanrobles.com.ph
"In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remain under temporary status for the length of time prior to the withdrawal of his appointment as Vice President for Administration in that University, and as it further appears that he is fully qualified for the position in question in view of his extensive experience in the fields of public administration and management, this Commission hereby certifies him for appointment therein under permanent status."cralaw virtua1aw library
The Pamantasan, in turn, asked for the reconsideration of that ruling.
The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement of Dr. Esteban because ‘it was never intended to be so.’
On May 28, 1976 Esteban asked the Commission to reconsider Resolution No. 75, Series of 1976. He also asked for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had withheld. His request was denied by the Commission in its undated resolution No. 158, Series of 1976.
On September 15, 1976, Esteban reiterated his request for payment of his salaries.
On September 20, 1976, he asked for a review of the Pamantasan’s decision to terminate his appointment as Vice-President for Administration.
On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer of the Pamantasan.
On July 6, 1977, the Commission again modified its earlier resolution in his case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do that under Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position.
Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission to order them to submit "all papers and documents pertinent to that case."cralaw virtua1aw library
On June 6, 1978, Presidential Decree No. 1409 was issued creating a Merits System Board in the Civil Service Commission to hear and decide cases brought before it on appeal by officers and employees who feel aggrieved by the determination of officials or personnel matters.
The Board required the Pamantasan to submit its complete records on the appointment and termination of Dr. Esteban as vice-president for administration.
While the records officer of the Pamantasan submitted copies of the notices sent to Esteban regarding his appointment as vice-president for administration, he did not submit a copy of the Board’s Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic personnel of said university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He produced a copy of the memorandum circular dated August 7, 1975 of the President of the Pamantasan terminating Dr. Esteban’s service as of July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president for administration of the Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was appointed . . . in a permanent capacity."cralaw virtua1aw library
In view of the Pamantasan’s failure to produce the minutes of the regular Board of Regents meeting on June 20, 1973 when Esteban’s appointment was approved the Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his appointment as Vice-President for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine Islands v. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose.
The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of Pamantasan with permanent status and that the temporary appointment issued to him did not alter his permanent status as he had ‘already acquired a vested right as well as the right to security of tenure’, that he cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without cause, as provided by law and after due process." The Commission held that the termination of his services was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he failed to receive from the time he was separated therefrom.
The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a copy of Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on Dr. Esteban’s appointment in question, may be determined." Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan’s motion for reconsideration and ruled that "Upon confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same became permanent."cralaw virtua1aw library
Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service Commissioners, Filemon Fernandez, Jr. and Albina Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision reversing the Commission’s Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that private respondent Dr. Esteban’s appointment was invalid, though he may be considered as a de facto vice-president of the University up to October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be terminated at any time.
The private respondent appealed to the Intermediate Appellate Court.
On September 26, 1983, the respondent Intermediate Appellate Court rendered a decision reversing the trial court’s decision. The dispositive portion of the appellate decision reads:jgc:chanrobles.com.ph
"Wherefore, the appealed decision is hereby reversed and set aside. The Pamantasan’s petition for certiorari is denied. Resolution No. 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vice-president for administration of the university under the Board of Regents’ Resolution No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries, allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits only up to the time he should have been retired from the said position."cralaw virtua1aw library
From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review.
We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of the respondents.chanrobles.com.ph : virtual law library
From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several "ad-interim" appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word "ad interim" which creates such belief. The term is defined by Black to mean "in the meantime" or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban’s appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):jgc:chanrobles.com.ph
". . . an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, which provides that ‘the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent appointment is issued."cralaw virtua1aw library
Not only is the appointment in question an ad-interim appointment, but the same is also a confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified respondent Esteban’s appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment.
In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interim appointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee’s term is converted into the regular term inherent in the position.
Petitioner centers its arguments and tries to fix the attention of the court to the act that all notices of appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed commencement and termination dates, "unless sooner terminated." As expressed by public respondent,." . . This stubborn insistence is anchored on the notifications of temporary appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores . . . Resolution No. 485 dated June 20, 1973 of the Board of Regents . . .." And correctly so argued. "In case of conflict between a notification issued by the Secretary of the University which is supposed to reflect the true content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter is controlling for obvious reasons. The Secretary of the University has no authority to alter or add something which is not provided for in the Resolution of the Board of Regents . . .." Thus, respondent Intermediate Appellate Court held:jgc:chanrobles.com.ph
"The permanent nature of appellant’s appointment was not altered or diminished by the misleading ‘notifications’ which were sent to him by the secretary of the university president, referring to his appointment as ‘temporary’, nor by his uninformed acceptance thereof without knowledge of the true contents of Resolution No. 485 which the university president appears to have studiously suppressed."cralaw virtua1aw library
There is nothing in the Pamantasan Board of Regents’ Resolution No. 485 which suggests that respondent Esteban’s appointment was temporary. The Board’s action was to confirm or reject an existing ad interim appointment. If respondent’s appointment was intended to be temporary, it should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary appointment divests the temporary appointee of the constitutional security of tenure against removal without cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1).
Further supporting private respondent’s stand is the list of permanent personnel which was submitted to the Commission by the university president herself on March 3, 1975 for recognition of their permanent status by the Commission. The appellant’s name was the first in that list (Exhibit 8-B). The permanent status of private respondent’s appointment as Vice-President for Administration at Pamantasan was recognized by the Civil Service Commission in its 1st Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil Service Commission as well as the Court of First Instance.chanrobles.com.ph : virtual law library
From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent appointee. With strained relations and differences in professional opinion between the private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure.
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance System v. Ayroso, 96 SCRA 213). The general rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or when there is grave abuse of discretion we have to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had written:jgc:chanrobles.com.ph
". . . With the sword of Damocles hanging over the heads of faculty members, the university has spawned a meek, spineless, even subservient corps of professors and instructors." (Newsman’s Notes, Bulletin Today, January 23, 1976).
We cannot also sanction the termination of private respondent’s services by petitioner. With his appointment now settled as permanent, the Civil Service Law and the Constitution guarantee private respondent’s security of tenure as "No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed to substantiate its allegations of incompetence against respondent Esteban whose record of government service appears quite impressive. Esteban was not dismissed for cause after proper proceedings. His appointment was terminated on the ground that it was temporary.
The Intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has not reached the age of compulsory retirement from the government service.chanrobles virtual lawlibrary
It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting for work and rendering services in whatever capacity, whether teaching, research or administration. As to backwages, the amount is generally based on the equivalent of three years’ earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co., Et. Al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages to be "subject to deduction where there are mitigating circumstances in favor of the employer, but subject to increase where there are aggravating circumstances. (Tupas Local Chapter No. 979, Et. Al. v. National Labor Relations Commission, Et Al., G. R. Nos. 60532-33, November 5, 1985; Progressive Development Corporation v. Progressive Employees’ Union, 80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elapsed from the date respondent Esteban was unfairly and illegally dismissed and petitioner Pamantasan is guilty of bad faith in misleading Dr. Esteban as to the true nature of his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable under the circumstances, assuming he has not reached retirement age in the meantime.
WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed from is affirmed subject to the modification in the payment of back salaries as stated above.
Teehankee (Chairman), Melencio-Herrera, Plana and Patajo, JJ., concur.
Relova, J., is on leave.
De la Fuente, J., I vote for the affirmance in toto of the decision of IAC. I believe that under the circumstances there should be no reduction of the back salaries, etc.