Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122197 June 26, 1998
ZOSIMO M. DIMAANDAL, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September 7, 1995, 1 the dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due course. Accordingly, the disallowance in question in the total amount of P52,908.00 is hereby affirmed. Considering that the claim for the RATA differential in the amount of P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential in the amount of P61,308.00 he had received from the Provincial Government of Batangas. 2
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant. The disallowances was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance.
2. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides that the Governor General or the officer having the power to fill-up a temporary absence or disability in the provincial office has the power to order or authorize payment of compensation to any government officer or employee designated or appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for Administration was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no longer performing the duties and functions of Supply Officer III.
The Provincial Auditor, however, denied the request for reconsideration. Appellant was required to refund the amount of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper. The respondent Commission was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer for Administration in addition to his regular duties. As such, he is not entitled to receive an additional salary. The Commission further opined that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the Department of Budget and Management considering that the party designating him to such position is not the "duly competent authority," provided for under Section 471 of the Local Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00 but likewise disallowed the claim for the RATA differential in the amount of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to refund the salary and RATA differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated.
Petitioner avers that the respondent Commission's decision is "probably not in accordance with applicable decisions of the Supreme Court." 3 He cites the cases of Cui, et. al. vs. Ortiz, et. al., 4 April 29, 1960; and, Menzon vs. Petilla, May 20, 1991, 5 which laid down the rule that de facto officers are entitled to salary for services actually rendered. Petitioner contends that he may be considered as a de facto officer by reason of services rendered in favor of the Province of Batangas. He then posits the view that to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his services actually rendered would be tantamount to deprivation of property without due process of law, and impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the Solicitor General, maintains that decisions cited by petitioner do not find application in petitioner's case. In the case of Menzon, what was extended was an appointment to the vacant position of Vice-Governor. Here, what was extended to petitioner was not appointment but a mere designation. Thus, the nature of petitioner's designation and in the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioner's insistence that he could still claim the salary and RATA differential because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it despite the fact that the Governor of Batangas had no authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. — (a) An Assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations.
x x x x x x x x x
In fact, the appointing officer is authorized by law to order the payment of compensation to any government officer or employee designated or appointed to fill such vacant position, as provided under Section 2077 of the Revised Administrative Code which states that:
Sec. 2077. Compensation for person appointed to temporary service.
x x x x x x x x x
In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office, the President of the Philippines or officer having the power to fill such position may, in his discretion, order the payment of compensation, or additional compensation, to any Government officer or employee designated or appointed temporarily to fill the place, but the total compensation paid shall not exceed the salary authorized by law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President of the Philippines or the Secretary of Finance.
Necessarily, petitioner's designation as Assistant Provincial Treasurer for Administration by Governor Mayo Being defective, confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an appointment. The respondent Commission clearly pointed out the difference between an appointment and designation, thus:
There is a great difference between an appointment and designation. While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position (COA Decision NO. 95-087 dated February 2, 1995). As such, there being no appointment issued, designation does not entitle the officer designated to receive the salary of the position. For the legal basis of an employee's right to claim the attached thereto is a duly issued and approved appointment to the position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation). 6
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the construction given by the agency or entity charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at bar, has been uniform, and consistent, and has been observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil.
143). 7
We see no justifiable reason to sustain petitioner's argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against deprivation of property without due process of law and the non-impairment of obligation of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. Considering that petitioner's designation was without color of authority, the right to the salary or an allowance due from said office never existed. Stated differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution.
The nature of petitioner's designation and the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. It is likewise defined as one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. 8 Then a de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular. 9
Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de facto officer is entitled to receive the salary for services actually rendered. However, his reliance on the Menzon case is misplaced. In Menzon, what was extended was an appointment to the vacant position of Vice-Governor, in petitioner's case, he was designated. The appointment of Menzon had the color of validity. This Court said:
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 a 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.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al. 11 does not apply in petitioner's case. In Cui, this Court held:
Petitioners' appointment on December 1 and 12, 1955 by the then mayor of the municipality were legal and in order, the appointing mayor still in possession of his right to appoint. For such appointment to be complete, the approval of the President of the Philippines is required. The law provides that pending approval of said appointment by the President, the appointee may assume office and receive salary for services actually rendered. Accordingly, therefore, in that duration until the appointment is finally acted upon favorably or unfavorably, the appointees may be considered as "de facto" officers and entitled to salaries for services actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8, 1994. Petitioner's claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority. 12
The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioner's retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur.
Footnotes
1 COA Decision No. 95-467.
2 Annex "A," Petition, rollo, pp. 16-19.
3 P. 5, Petition.
4 G.R. No. l-13753.
5 197 SCRA 253.
6 COA Decision, Annex "A," Petition, pp. 16-19, rollo.
7 Animos vs. Philippine Veterans Affairs Office, 174 SCRA 214, 218.
8 Philippine Law Dictionary, p. 162.
9 People vs. Gabitanan, 43 OG 3211; 8 App. Ct. Rep. 623.
10 197 SCRA 253.
11 107 Phil. 1000.
12 Annex "B," Petiton, rollo, p. 20.
The Lawphil Project - Arellano Law Foundation
|
