145401

EN BANC

[G.R. No. 145401. May 7, 2001]

MANUEL L. ONTIVEROS, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and the DEPARTMENT OF TOURISM, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition seeking review on certiorari of the decision,[1] dated June 30, 2000, and the resolution,[2] dated October 11, 2000, of the Court of Appeals which affirmed the dismissal of petitioner Manuel L. Ontiveros from the then Ministry of Tourism.

Petitioner was Security Officer I in the Investigation and Security Division of the Ministry of tourism, having been appointed to that position on July 27, 1976. On May 26, 1986, he was dismissed from the service for inefficiency, incompetence, and unauthorized absences. The Memorandum of then Minister of Tourism Jose Antonio U. Gonzales, dismissing petitioner, read:

Pursuant to the provisions of Section 2, Article III of Proclamation 3, your services as Security Officer I is hereby terminated effective as of the close of office hours on May 26, 1986, based on the following grounds:

1. Inefficiency and incompetence in the performance of official duties.

2. Frequent unauthorized absences or tardiness in reporting for duty, loafing, or frequent unauthorized absences from duty during regular office hours.

You are instructed to secure your money and property accountabilities for your last salary payment.[3]

On June 10, 1986, petitioner appealed to the CSC, invoking his status as a civil service eligible and a permanent employee.[4]

Petitioner reiterated his appeal in a letter, dated August 11, 1997, to the CSC.[5] In response, CSC Director IV Angelito G. Grande informed petitioner that jurisdiction over his appeal was vested in the Review Committee created under Executive Order No. 17 of then President Corazon C. Aquino and for that reason his (petitioner's) appeal could not be given due course by the CSC.[6]

Petitioner filed a motion for reconsideration, but his motion was denied by the CSC through Chairman Corazon Alma G. de Leon and Commissioners Thelma P. Gaminde and Jose F. Erestain, Jr. In Resolution No. 982464,[7] the CSC stated:

Pursuant to the Provisional Constitution and the various Executive Orders issued by then President Aquino when she was the sole law-making authority, the different Departments of Government were authorized to carry on reorganization programs. No specific causes for removal were given in the Provisional Constitution because at that time, there was no setting up of clear-cut policies and guidelines on reorganization to protect the security of tenure of civil servants. This was the prevailing situation following the issuance on February 25, 1986 of Proclamation No.1 calling "all appointive public officials to submit their courtesy resignations." This calling was echoed under Section 16, Art. XVIII of the [1987] Constitution which explicitly authorizes the removal of career civil service employees not for cause but as a result of the reorganization pursuant to Proclamation No.3 dated March 25, 1986.

Despite the foregoing circumstances, Ontiveros was removed from the service on the bases of two administrative offenses. Therefore, it is with more reason that his separation from the service under the [Provisional] Constitution was justified, especially considering that the same is for cause.[8]

Petitioner filed a petition for review to the Court of Appeals. But his petition, as well as his motion for reconsideration, was denied. The Court of Appeals ruled that the CSC had no jurisdiction over petitioner's appeal, the proper appellate body being the Review Committee established under E.O. No.17. In addition, the appeals court held that review of petitioner's dismissal was barred by laches. Hence this petition.

First. Petitioner argues that his case does not fall under the Review Committee's jurisdiction because his separation from the service was not in consequence of the reorganization of the government, as provided in the Provisional Constitution (also known as the Freedom Constitution), but was for cause; hence, appeal lies with the CSC.

The contention has no merit. Art. III, §2 of the Provisional Constitution provided that "All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986" (emphasis added). To be sure, petitioner was not dismissed by virtue of a proclamation or executive order of the President of the Philippines nor by reason of the designation or appointment and qualification of his successor. It must also be noted that E.O. No.120, which reorganized the then Ministry of Tourism, was issued by then President Corazon C. Aquino only on January 20, 1987, whereas petitioner was dismissed on May 26, 1986.

However, the memorandum of then Tourism Minister Jose Antonio U. Gonzales, dismissing petitioner from the service, clearly stated that it was being issued pursuant to Art. III, §2 of the Provisional Constitution. And indeed, just two days after petitioner had been dismissed, E.O. No.17 was issued on May 28, 1986, providing in pertinent part as follows:

SECTION. 1. In the course of implementing Article III, Section 2 of the Freedom Constitution, the Head of each Ministry shall see to it that the separation or replacement of officers and employees is made only for justifiable reasons, to prevent indiscriminate dismissals of personnel in the career civil service whose qualifications and performance meet the standards of public service of the New Government.

Any office, agency, instrumentality, or government-owned or controlled corporation, which is not attached to any ministry, including any of the constitutional commissions and state colleges and universities, shall be considered a ministry for purposes of this Order.

The Ministry concerned shall adopt its own rules and procedures for the review and assessment of its personnel, including the identification of sensitive positions which require more rigid assessment of the incumbents, and shall complete such review/assessment as expeditiously as possible but not later than February 24, 1987 to prevent undue demoralization in the public service.

SEC. 2. The Ministry Head concerned, on the basis of such review and assessment, shall determine who shall be separated from the service. Thereafter, he shall issue to the official or employee concerned a notice of separation which shall indicate therein the reason/s or ground/s for such separation and the fact that the separated official or employee has the right to file a petition for reconsideration pursuant to this Order. Separation from the service shall be effective upon receipt of such notice, either personally by the official or employee concerned or on his behalf by a person of sufficient discretion.

SEC. 3. The following shall be the grounds for separation/replacement of personnel:

1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned;

3) Gross incompetence or inefficiency in the discharge of functions;

4) Misuse of public office for partisan political purposes;

5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service.

In Radia v. Review Committee under Executive Order No. 17,[9] the retroactive application of E.O. No.17 to past dismissals was affirmed. It was held:

[E.O. No.17] is a self-limiting act and its provisions are not only non-penal in nature, but also clearly more favorable than those of Art. III (2) of the Provisional Constitution. As such, there is no legal nor moral obstacle to the retrospective application of Executive Order No.17 to "those already separated from the service on the issuance of this Order, including those whose resignations were accepted or whose successors have been appointed/designated." (Section 6)[10]

In this case, it is clear that petitioner's dismissal came within the coverage of E.O. No.17, §3(3) and (5). Pursuant to §2 of the order, the memorandum of dismissal of Minister Gonzales is considered the act of the then President.

Nor can it be argued that this case is not covered by Art. III, §2 of the Provisional Constitution since the grounds for petitioner's dismissal are grounds under civil service laws and regulations. E.O. No.17 provided the grounds for the separation of employees from the service not to bring their cases under ordinary civil service laws and regulations but to provide limits on what otherwise would be absolute discretion and thus prevent an abuse of power. But certainly, it was not the intention to make such cases subject to processing by regular procedures that could defeat the summary nature required by government reorganization following the establishment of a revolutionary government.[11]

Second. Petitioner argues that the Review Committee did not have jurisdiction over his appeal because it was created only after he had been dismissed on May 26, 1986.

E.O. No. 17, which was issued on May 28, 1986, took effect only on June 2, 1986, after petitioner had already been dismissed on May 26, 1986. However, §6 of the said order provides:

A petition for reconsideration may be filed with the [Review] Committee by the separated official or employee within ten (10) days from receipt of the notice of separation. In case of those already separated from the service upon issuance of this Order, including those whose resignations were accepted or whose successors have been appointed/designated, the petition shall be filed within ten (10) days from date of publication of this Order in a newspaper of general circulation. (emphasis added)

It is not disputed that petitioner failed to file such petition for reconsideration with the Review Committee within 10 days from publication of E.O. No.17. As petitioner never filed an appeal with the Review Committee, his separation from the service became final.

Third. Petitioner also contends that the CSC should have dismissed his appeal outright or indorsed his appeal to the Review Committee as was done in the cases of Radia[12] and Sto. Domingo v. Ordoñez.[13]

In the Radia case, the apparent reason for the indorsement was that at the time the appeal was filed with the CSC on May 28, 1986, E.O. No. 17 had not yet been published on June 2, 1986. Here, petitioner appealed to the CSC on June 10, 1986, when the Review Committee had already been created. He therefore cannot use the CSC’s inaction as an excuse for his mistake in appealing to the wrong forum. One wrong does not make another wrong right.[14]

In any event, as found by the Court of Appeals, petitioner is also guilty of laches. Petitioner claims that “on many occasions” he went to the CSC to follow up his appeal. But the fact is that it was only on August 11, 1997, more than a decade from the time he had filed an appeal to the CSC on June 10, 1986, that petitioner wrote a letter, reiterating his appeal. It is noteworthy that in is letter, petitioner made no mention of any “follow up” he allegedly had made of his case in the CSC. There is no evidence of this claim except petitioner’s allegations. As the Court of Appeals correctly observed in its decision, “Petitioner as appellant had a duty to inquire and inform himself on the progress of his appeal. He cannot be allowed to benefit from his long inaction and lethargy by resurrecting his appeal and reap a windfall in backwages and other benefits.”[15]

In view of the conclusions reached in this case and the fact that this court is not a trier of facts, there is no further need to discuss whether the grounds stated in the memorandum of then Minister of Tourism Jose Antonio U. Gonzales dismissing petitioner really exist.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Panganiban, Pardo, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

Puno J., no part. Related to counsel.

Quisumbing, Buena, De Leon, Jr., JJ., on leave.

Ynares-Santiago J., abroad on official time.