484 Phil. 798
CALLEJO, SR., J.:
That your name was deleted as a contender to the position of accountant of the Office of the District Engineer, Siquijor Engineering District of the merged Ministry of Public Works and Highways on the ground that you were facing administrative and criminal charges finds justifiable and legal basis, especially considering Opinion No. 44, s. 1988, of the Secretary of Justice dated March 11, 1988 wherein it wisely held that:In the meantime, on May 30, 1989, the Sandiganbayan convicted the petitioner of the crimes charged. She, thereafter, filed a petition for review with this Court docketed as G.R. Nos. 88475-96 assailing the decision. On August 5, 1993, the Court rendered judgment reversing the decision of the Sandiganbayan and acquitting the petitioner of the charges.“It is settled that the abolition of an office effectively terminates the official relation of an officer thereto … reappointment to the new positions created in the then Ministry (now Department) of Public Works and Highways is not a matter of right, but a matter of privilege, to be determined according to the best judgment of the appointing authority or recommending authority. …”[2]
After a careful evaluation of the records, We find the appeal without merit.The appellate court also cited the 1st Indorsement dated June 17, 1994 of Undersecretary Gregorio S. Alvarez, to wit:
The position which Tan seeks to be reinstated to in the Ministry of Public Highways has ceased to exist by virtue of Executive Order No. 710 abolishing said office and thereby creating the Ministry (now Department) of Public Works and Highways (MPWH). Tan can no longer claim for reinstatement despite her acquittal by the Supreme Court on the ground that when MPWH was created and she was not reappointed to her original position, she was deemed legally separated from the service. The power of the Minister to appoint personnel is discretionary. Section 10 of Executive Order 710 provides as follows:“Section 10. x x x. The Minister may appoint qualified personnel of the abolished Ministries to appropriate positions in the new Ministry, and those not so appointed are deemed laid off.”Since Tan was not so appointed in the newly created Ministry, she can no longer claim for reinstatement to her former position.[5]
After a circumspect re-examination of the records at hand, the Commission finds no substantial basis to reconsider its previous resolution dismissing the appeal of Tan.
Although the issue on Tan’s non-reinstatement has already been squarely passed upon by the Commission in the herein assailed resolution, it is worthy to restate the well-entrenched rule that the payment of back salary is afforded only to those who have been illegally dismissed and were, thus, ordered reinstated or to those otherwise acquitted of the charges against them (Sabello vs. DECS, 180 SCRA 623).
In the instant case, while it is true that Tan was acquitted by [the] Supreme Court from Estafa Through Falsification of Public Documents, her reinstatement to her former position as well as payment of back salary do not automatically attach considering that her separation from the service did not arise from that criminal offense. On the contrary, her separation was due to the abolition of her position by virtue of the reorganization of the MPWH (now DPWH). Since Tan was not reappointed to a position equivalent to her former position, she was deemed separated pursuant to the express provisions of Executive Order No. 710.
Moreover, Tan cannot claim that she was deemed reappointed to her position since she was allowed to exercise her functions even after the reorganization. The fact remains that she was not reappointed to an equivalent position in the reorganized agency.[6]
The request of Ms. Tan for reinstatement and payment of back salaries has no basis despite her acquittal because during the pendency of the case against her, the Ministry of Public Highways, where she was an employee, and the Ministry of Public Works were abolished by Executive Order #710 and a new Ministry, the Ministry of Public Works and Highways was created.We agree with the CA.
Sec. 10 of said Executive Order provided that the Minister may appoint qualified personnel of the abolished Ministries to appropriate positions in the new Ministry and those not so appointed are deemed laid-off.
Ms. Tan was not considered for re-appointment to the new Ministry of Public Works and Highways; hence, in accordance with Sec. 10, she was deemed laid off and is no longer an employee of the Department.
Sec. 12 of the same Executive Order provides that “all those who are laid-off under the provisions of this Executive Order shall be entitled to all benefits and gratuities provided for under existing laws.”
Considering, therefore, that Ms. Tan was laid-off during the merger of the two Ministries, she is not entitled to reinstatement and payment of back salaries. She is, however, entitled to the payment of her accrued vacation and sick leave credits and other benefits as provided under Sec. 12 of Executive Order #710. She may also retire if she is retireable.[7]
SECTION 1. There is hereby created a Ministry of Public Works and Highways, hereinafter referred to as the Ministry. The existing Ministry of Public Works established pursuant to Executive Order No. 546, as amended, and the existing Ministry of Public Highways established pursuant to Presidential Decree No. 458, as amended, are abolished together with their services, bureaus and similar agencies, regional offices, and all other entities within their supervision and control. Their functions, applicable appropriations, records, equipment, property, and such personnel as may be necessary are hereby transferred to the new Ministry.[8]To abolish means to do away with, to annul, abrogate or destroy completely. It denotes an intention to do away with the office wholly and permanently.[9] A valid abolition of offices is neither removal nor separation of the incumbents. No dismissal or separation arises because the position itself ceases to exist.[10]
SECTION 10. The Ministry is hereby authorized to issue such orders, rules and regulations as may be necessary to implement the provisions of this Executive Order; provided, that approval of the Ministry of the Budget is obtained relative to the new staffing structure at divisional and lower levels, and the realignment of existing appropriations. The Minister may appoint qualified personnel of the abolished Ministries to appropriate positions in the new Ministry, and those not so appointed are deemed laid off.[11]The appointment of qualified personnel of the abolished Ministries to appropriate positions in the new Ministry was addressed to the sound discretion of the new Minister.
3. Unplaced Personnel
The Evaluation/Selection Committee shall submit together with the list of recommendees for appointment, a separate list of unplaced personnel, using the attached form (Annex “B”), indicating under the “Remarks” column whether they choose to retire, be transferred to another office, or phased out.
4. Time Frame
Under Ministry Order No. 38 dated May 24, 1982, the Minister required that:
Activity Deadline 4.1 Submission of recommendation by District/City Evaluation/Selection Committees to Regional Directors Feb.15
(1982) 4.2 Submission of recommendations by Regional Directors to the Minister Feb. 22 4.3 Submission of recommendations by Central Office Evaluation/Selection Committees to Review Boards Feb. 15[13]
It must be stressed that the Committee did not recommend the appointment of the petitioner for the reasons set forth in the Deputy Minister’s 2nd Indorsement dated January 5, 1983, which was addressed to the Minister:
- Services of employees who cannot be accommodated due to the abolition of their positions and/or were not selected for appointment per Manning List submitted by their respective Offices, shall be terminated thirty (30) days after the date of approval of the Manning List for the Office concerned.
- Issuance of Notice of Termination of Employment shall be prepared by the Personnel Division, for signature of the official concerned on the basis of the delineation of functions on the power to appoint subordinate employees as delegated under Ministry Order No. 18 dated 17 February 1982.[14]
The number of personnel in the abolished Ministries far exceeded the number of positions authorized for the Ministry of Public Works and Highways. As a consequence, a considerable number of employees, most of them with acceptable performance and with no derogatory records, were phased out of the service due to the abolition of their position in the defunct ministries.In addition, in his Decision dated March 11, 1983, the Minister ruled that the administrative complaint against the petitioner for grave misconduct and/or for dishonesty was dismissed provisionally, without prejudice to its reopening thereof should she reenter the government service in the future. The petitioner did not appeal the decision.
Those retained in the service under the new ministry were selected on the basis of established placement policies and screening criteria. Employees who opted to retire from the service were excluded from the manning lists to minimize placement problems, and those facing administrative/criminal charges at the time of the reorganization were likewise phased out, to select the best suited for the vacancies, and in the exercise of the prerogative of choice vested in the Minister by Executive Order No. 710.
Ms. Cresencia Tan has a pending administrative case for Dishonesty and/or Misconduct. She is also accused before the Sandiganbayan of Estafa thru Falsification of Public Documents, and Violation of Republic Act 3019, for which she had been suspended from Office pendente lite. On this ground, she was excluded from the manning list of the Siquijor Engineering District.[15]