G.R. No. L-30773 - Concurring Opinion




G.R. No. L-30773, February 19, 1970, ♦ Decision, Sanchez, [J] ♦ Concurring Opinion, Castro, [J] ♦ Concurring Opinion, Fernando, [J] ♦ Concurring Opinion, Barredo, [J] EN BANC G.R. No. L-30773 February 18, 1970 FELIXBERTO C. STA. MARIA, petitioner, vs. SALVADOR P. LOPEZ, THE BOARD OF REGENTS OF THE UNIVERSITY OF THE PHILIPPINES, and NEMESIO CERALDE, respondents. V.E. del Rosario and Associates and Atienza, Tabora & del Rosario for petitioner. Office of the Solicitor General Felix V. Makasiar, Solicitor Bernardo P. Pardo and Special Counsel Perfecto V. Fernandez for respondents Salvador Lopez, et al. Crispin D. Baizas for respondent Nemesio Ceralde. Separate Opinions BARREDO, J., concurring and dissenting: In view of the fact that Mr. Justice Sanchez, the writer of the main opinion is due to retire and it is best that the decision in this case be promulgated before he leaves this Court, I am constrained to express briefly now my views on the issues before Us, reserving my right to make a more extended opinion later should I find it necessary to do so. On the basis of the main facts related in the main opinion, I agree that respondents Lopez and Board of Regents acted beyond the scope of their authority in permanently transferring petitioner from his position as Dean of the College of Education to that of Special Assistant in the Office of the President, even with rank of dean and without reduction of salary, for the simple reason that such a transfer, taking all attendant circumstances into account, did not comply with the requirements of Section 32 of the Civil Service Act of 1959, invoked by said respondents, if only because, as the majority holds, the position of Special Assistant in the Office of the President, even with empty trappings of a deanship without any particular college to be dean of, cannot be considered as not a reduction in rank, even if there be some element of interest of the service in :the cause thereof. In this concept, I vote that the order of transfer in question should be stricken down as repugnant to the Constitution, that petitioner is still the Dean of the College of Education of the University of the Philippines and thatthe appointment of respondent Ceralde, even in an ad interim capacity has no legal basis and is, therefore, void. Parenthetically, this is not to admit that petitioner has never had an opportunity to be heard, for conferences, meetings, dialogues, long and deliberative, there had been many times for months — it is only that We are not satisfied that such chances as petitioner might have had to air his views on those occasions conform precisely with the requirements of due process. I find it difficult, however, to agree that Dean Santamaria be returned to the vortex of controversy and thereby bring back the University to the chaotic condition obtaining at the time the questioned order was issued, unless, in the meantime, prudence and sobriety have regained their hold and the fire of excessive student activism has already sufficiently cooled down because they have come to understand the inimical consequences of anything done to excess. If the majority position of completely setting aside the said order appears to be somehow justified, it is only because in the face of riotous situation the authorities were lost in confusion as to how to meet the problem at hand. To my mind, the crisis of leadership was not a monopoly of the petitioner, it pervaded even the higher strata of the university hierarchy. To be more precise, it is not clear to me what exactly is the position of the respondents. If they are serious in invoking Section 32 abovementioned, then it must be admitted that the ordered transfer is permanent, and since as We view it, the requisites of the law for such a transfer have not been met, the petitioner is right in contending that he is still the Dean of the College of Education. On the other hand, all throughout the pleadings of the respondents, iterations and reiterations are made of the emergency and temporary character of the transfer, to meet a crisis that could result in the complete paralyzation of the activities in the University. Is this the real nature of the measure taken? If this is true, then I find no valid reason why the majority should insist on completely striking down the order in question. Precedents there are where the court in passing upon acts questioned as merely in excess of authority has sanctioned them only to the extent that they could be construed consistently within the limits of legitimate authority and the fundamental law of the land. I consider it as a prudent measure of public administration that in the face of the student demands, which I am afraid this court is not in a position to pass upon with the same competence as the Board of Regents and the university authorities can, it is legally possible to detail petitioner in the position given to him under the order, without removing him as Dean of the College of Education, only f or such duration as may be needed, which must be as speedily as possible, by the Board of Regents to clear up the matter of the demand of the students. In the deliberations, the majority pointed out that no formal charges have been filed against petitioner.ℒαwρhi৷ For the purposes, I have indicated, I believe that as a consequence of the principle and policy embodied in Section 32, no such charges are needed, considering the urgency of the circumstances. Otherwise stated, if a permanent transfer can be made in the interest of the service, provided there is no reduction in rank and salary, without the need of any charges being filed and any formal investigation undertaken, it should follow that a temporary detail may also be legally made to the same end. Moreover, I do not find in the position taken by petitioner in his last letter to respondent Board of Regents that he is raising this point. What he wants is only a formal investigation. I believe the Board is willing to do that, but petitioner wants to be returned first to his position before any investigation is started. My answer is, it is right that he should be restored his rank and position as Dean of the College of Education, but in the interest of the service and for broader considerations arising from the unusual situation obtaining which calls for a little less of legalism and formalism, he should be amenable to being provisionally detailed elsewhere, with the double advantage that he is removed as I said, temporarily, from the vortex of controversy, and at the same time his acknowledged special qualifications can be made use of by the university in another aspect of its functions, to the enhancement of the purposes for which it exists. This is certainly less than being suspended, which, under the circumstances stated in the main opinion and in the pleadings of respondents, not effectively rebutted, in my view, by petitioner, would have been legally possible, had formal charges been filed against him under Section 34 of the Civil Service Act.1 Before closing, I wish to emphasize that nothing said above favorable to respondents' position is intended to condone, much less encourage, mob rule. In fact, my considered view is that this case can be and ought to be decided without taking into account, speaking in the language of civilists when referring to contracts, as a consideration, rather than as a mere reason or motive, the urgency of placating the students' intransigent attitude, and that what should concern Us only is whether or not there was enough substantial basis in the demands of the students to warrant remedial measures by the university authorities within the confines of the constitution and the settled principles of free, speech vis-a-vis the interest of the service and the accomplishment of the ends of university education which is exactly what the students are there for. Stated differently, with or without student riots if the demands of the demonstrators were flimsy and capricious, the respondents should have firmly stood their ground. On the other hand, with or without such show of force, the university administration has the power and, indeed, the duty to take adequate legal steps to meet the situation with emergency measures that will pave the way for ultimate permanent solutions more or less acceptable to all reasonable men. I would also add that the security of tenure consecrated in the constitution should not be construed as placing the government in a position as if it owed all officers and employees their respective positions. On the other hand, under this constitutional mantle, persons in the government service are not mere beasts of burden, much less inanimate pawns on a chessboard to be moved at will by their administrators. I feel very strongly that public service or employment in the government is not just a means of living — it carries with it a sense of mission, a tinge of patriotism and a considerable degree of the spirit of sacrifice readily to be offered in the altar of the commonwealth as long as there is no trampling of human dignity. I recognize no primacy in any of the rights enshrined in the constitution — rather, I hold that it is the inescapable peculiar function and duty of the courts to determine in appropriate instances, given God's light, where one ends and where only the other begins. In conclusion, I hold that the order in question should be construed as a mere temporary measure that does not in any manner minimize the status of petitioner as Dean of the College of Education and as merely a temporary detail of said petitioner to the Office of the President until the Board of Regents has acted on his petition filed therewith, action on which he impeded by somehow prematurely coming to this Court. I vote that the petition be denied and the transfer order in question upheld only in the character and nature explained in this opinion, that is, as a temporary detail, without removing petitioner as Dean of the College of Education. Villamor, J., concurs. Footnotes 1 As a matter of fact, it is perhaps even possible to hold that because petitioner Sta. Maria accepted his appointment as Dean of the College of Education for a term of five years together with the qualification "unless sooner terminated", he is not entitled to invoke security of tenure, just as "a civil service eligible who accepts a position in a temporary capacity is not entitled to the protection accorded by Republic Act No. 557 (Hortillosa vs. Ganzon, L-11169, Jan. 30, 1959) nor to the protection of security of tenure in office guaranteed by the Constitution. (Taboada) vs. Municipality of Badian, et al. L-14604, May 31, 1961). The undisturbed unanimity of the cases is that one who holds a temporary appointment has no fixed tenure of office; his employment can be terminated any time at the pleasure of the appointing power without need to show that it is for cause. (Hojilla vs. Marino, et al., L-20574, Feb. 26, 1965; Aguila vs. Castro, et al., L-23778, Dec. 24, 1965; Serrano, et a]. vs. Nat. Science Dev. Board, et al., L-19349, Mareb 31, 1964; Cuñado and Vallecera vs. Gamus, et al., L-16782-83, May 30, 1963; Taboada vs. Mun. of Badian, supra; Azuelo vs. Arnaldo, et al., L-15144, May 26, 1969; Madrid vs. Auditor General, et al., L-13523, May 31, 1960 (citing Mendez vs. Ganzon, et al., L-10483, April 12, 1957; University of the Philippines, et al. vs. Court of Industrial Relations, et al., L-15416, April 28, 1960; Agapuyan vs. Ledesma, L-10535, April 25,1957); Quitiquit vs. Villacorta, supra; Montero et al. v. Castellanes, L-12694, June 30, 1960; Ferrer as. De Leon, L-15076, August 29, 1960 (citingAustria vs. Amante, 79 Phil.780); Villanosa, et al. vs. Alera, et al., supra, Elegida vs. Gacutara, supra; Cuadra vs. Cordova, etc., L-11602, April 21, 1958, 54 O.G. 8063; Castro vs. Solidum, L-7750, June 30, 1955)" (Jimenez vs. Guanzon, January 22, 1968, 22 SCRA 227, 229, PHILD 1968-A, pages 220, 224). I feel however, that the main position I have taken would suffice to uphold the order in question on broader faundations of principle in the law of the public administration. The Lawphil Project - Arellano Law Foundation