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Plaza II vs. Cassion

*
G.R. No. 136809. July 27, 2004.

DEMOCRITO D. PLAZA II and VIRGINIA V. TUAZON,

petitioners, vs. CAROLINA M. CASSION, ALBERTA M.
SAMPAYAN, JOSEPHINE NATALIA U. LOPEZ,
JOCELYN M. ALMANZOR, LUZVIMINDA G. ARDECER,
MAGDALENA S. BALACUIT, WINDELYN B. CABUSAO,
JULIETA R. JANDAYAN, NERI O. SAMUYA, INES V.
YAOYAO, TERESITA I. ROSALES, MARIA DEBRA M.
LANAJA, RUTH O. NICOLASURA, respondents.

Local Government Code; Meaning of “Devolution.”—Section

17 of the Local Government Code authorizes the devolution of
personnel, assets and liabilities, records of basic services, and
facilities of a national government agency to local government
units. Under this Code, the term “devolution” refers to the act by
which the national government confers power and authority upon
the various local government units to perform specific functions
and responsibilities.

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* THIRD DIVISION.

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Plaza II vs. Cassion

Same; Same; As the local chief executive of Butuan City,

Mayor Plaza has the authority to reappoint devolved personnel
and may designate an employee to take charge of a department
until the appointment of a regular head.—It is clear that Mayor
Plaza is empowered to issue EO No. 06-92 in order to give effect to
the devolution decreed by the Local Government Code. As the
local chief executive of Butuan City, Mayor Plaza has the
authority to reappoint devolved personnel and may designate an
employee to take charge of a department until the appointment of
a regular head, as was done by the Mayor here.
 Same; Same; Court of Appeals erred in ruling that EO No. 06-
92 violated respondents’ security of tenure as they were transferred
to another office without their consent; The change of respondent’s
place of work from the original City Social Services Development
Office (CSSDO) to the Department of Social Welfare and
Development (DSWD) building is not a transfer.—The Court of
Appeals erred in ruling that EO No. 06-92 violated respondents’
security of tenure as they were transferred to another office
without their consent. There was no such transfer. Transfer is a
movement from one position to another which is of equivalent
rank, level or salary without break in service and may be imposed
as an administrative penalty. The change of respondents’ place of
work from the original CSSDO office to the DSWD building is not
a transfer. It was only a physical transfer of their office to a new
one done in the interest of public service. There were no new
movements or appointments from one position to another.
Civil Service Law; Dropping from the rolls is not an
administrative sanction and private respondents need not be
notified or be heard.—Pursuant to the above provisions and as
ruled by the CSC, the dropping from the rolls of private
respondents is not disciplinary in nature. Thus, their assertion
that they were denied due process is untenable. Since the
dropping from the rolls is not an administrative sanction, they
need not be notified or be heard.

PETITION for review on certiorari of a decision and

resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

     Nerbert T. Poculan for petitioners.
     Purita A. Reyes for private respondents.

SANDOVAL-GUTIERREZ, J.:

Republic Act No. 7160, otherwise known as The Local

Government Code of 1991, aims to transform local
government units into
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Plaza II vs. Cassion

self-reliant communities and active partners of the national

government in the attainment of effective services to the
people. As a result of the devolution of concerned personnel
from the national government to the various local
government units pursuant to the same Code, the interest
of the service demands that their working relations with
the local employees should be harmonious.

1
 1
This is
2
a petition for review on certiorari assailing the
Decision of the Court of Appeals dated February 14, 1996
and its Resolution dated December 9, 1998 in CA-G.R. SP
No. 55052, “Carolina M. Cassion, et al. vs. Civil Service
Commission, et al.”
Before the passage of Republic Act No. 7160, the task of
delivering basic social services was dispensed by the
national government through the Department of Social
Welfare and Development (DSWD). Upon the promulgation
and implementation of the Local Government Code, some
of the functions of the DSWD were transferred to the local
government units.
The City of Butuan, through its Sangguniang3
Panlungsod (Sanggunian) passed SP Resolution 427-92,
entitled “Resolution Authorizing the City Mayor,
Honorable Democrito D. Plaza II, to Sign the Memorandum
of Agreement for the Devolution of the DSWD to the City of
Butuan.” 4
Pursuant to the Memorandum of Agreement (MOA)
entered into between the City of Butuan, through then
Mayor Democrito Plaza II, petitioner, and the DSWD, the
latter’s services, personnel, assets and liabilities, and
technical support systems were transferred to its city
counterpart.
By virtue of the same MOA, 5
Mayor Plaza issued
Executive Order (EO) No. 06-92 dated October 5, 1992
reconstituting the City Social Services Development Office
(CSSDO), devolving or adding thereto 19 national DSWD
employees headed by petitioner Virginia Tuazon, Social
Welfare Officer V. Mayor Plaza designated

_______________

1 Pursuant to Rule 45 of the 1997 Rules of Civil Procedure, as amended.

2 Penned by Associate Justice Consuelo Ynares-Santiago (now a
member of this Court), with Associate Justices Arturo B. Buena, now a
retired member also of this Court, and Ruben T. Reyes, concurring.
3 Rollo at p. 118.
4 Id., at pp. 120-124.
5 Id., at p. 125.

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her Officer-in-Charge of the reconstituted CSSDO. Its office

was transferred from the original CSSDO building to the
DSWD building.
The CSSDO was originally composed of herein
respondents, headed by Carolina M. Cassion, Social
Welfare Officer IV. Aggrieved by such development, they
refused to recognize petitioner Tuazon as their new head
and to report at the DSWD building. They contended that
the issuance of EO No. 06-92 by Mayor Plaza and the
designation of petitioner Tuazon as Officer-in-charge of the
CSSDO are illegal.
Despite Mayor Plaza’s series of orders to respondents to
report for work at the DSWD building, they failed to do so.
On January 18, 1993, Mayor Plaza issued a
memorandum to the City Legal Officer directing him to
conduct an administrative investigation against
respondents. They then submitted their respective
explanations. Thereafter, they were charged
administratively for grave misconduct and insubordination
and were preventively suspended for 60 days. This
prompted them to file with the Civil Service Regional Office
No. 10 a complaint against Mayor Plaza for violation of the
Civil Service Law. However, their complaint was dismissed
for lack of merit.
Upon expiration of their preventive suspension,
respondents informed Mayor Plaza that they are willing to
return to work, but to their old office, not to the DSWD
building.
For the last time, or on April 14, 1993, Mayor Plaza
notified respondents to report to petitioner Tuazon at the
new office in the DSWD building, but they remained
obstinate.
On February 9, 1994, Mayor Plaza inquired from the
Civil Service Commission (CSC) on what appropriate action
could be taken against respondents for their continued
refusal to report for work since April 1993. In turn, the
CSC, through Atty. Lorea, Director II, informed the Mayor
that respondents could be dropped from the rolls pursuant
to CSC Memorandum Circular No. 38, Series of 1993.
On February 16, 1994, Mayor Plaza issued an Order
dropping respondents from the rolls pursuant to the said
CSC Memorandum Circular.
Forthwith, respondents appealed to the CSC.
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Plaza II vs. Cassion

On August 22, 1994, the CSC issued Resolution Nos. 94-

4626 and 94-6243 dismissing respondents’ appeal. In
affirming Mayor Plaza’s Order dropping respondents from
the rolls, the CSC held:

“CSC Memorandum Circular No. 38, series of 1993 dated

September 10, 1993 provides as follows:
‘Officers and employees who are absent for at least thirty (30) days
without approved leave are considered on Absence Without Official Leave
(AWOL) and may be dropped from the service without prior notice.
‘A notice or order of the dropping from the rolls of an employee shall be
issued by the appointing authority and submitted to the CSC Office
concerned for record purposes.’

“Based on the above-quoted provision, it is undeniable that the

appointing authority has the legal right to drop from the rolls a
civil service officer or employee. Nowhere in the quoted provision
is it stated that only the Commission has the exclusive authority
to drop from the rolls civil service officers or employees. Hence,
contrary to the first contention of the appellants, Mayor Plaza
acted in conformity with the law when he ordered the dropping
from the rolls of herein appellants. The records of the case show
the fact that appellants did not report for work from April 1993
up to the time they were dropped from the rolls. Although they
manifested intention to return to work upon expiration of their
preventive suspension, still they adamantly insisted that they
would report only in their old office and not in the new one
created by Executive Order No. 06-92. The legal excuse being
given by the appellants is highly untenable. The Executive Order
issued by the Mayor is presumed valid until annulled by the
proper authorities. The same presumption shall also apply insofar
as the designation of Mrs. Tuazon as OIC is concerned. The
proper course of action for the appellants is to comply with the
Mayor’s directives and then challenge the questioned Executive
Order before the proper forum, otherwise, the appellants should
suffer the consequence of their acts.
“We find without merit the contention of the appellants that
they were denied due process for lack of notice and opportunity to
be heard before they were dropped from the rolls. The separation
of an employee who is dropped from the rolls is a non-disciplinary
action wherein the respondent is entitled to notice and hearing. In
the above-quoted provision, an officer or employee may be
dropped from the rolls if he was continuously absent without
official leave for a period of at least thirty days. Prior notice is not
necessary.
“As to the last contention of the appellants that it was really
the intention of the mayor to systematically remove them, the
Commission likewise finds it without merit. No evidence was
submitted by the appellants to support such contention.”

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Respondents then filed with the Court of Appeals a petition

for review.
 On February 14, 1996, the Appellate Court rendered its
Decision setting aside the assailed CSC Resolutions and
EO No. 06-92 issued by Mayor Plaza and reinstating
respondents to their former positions without loss of
seniority rights and emoluments with full back wages and
other benefits corresponding to the period from January
1993 up to actual reinstatement. Petitioners filed a motion
for reconsideration but was denied.
The Court of Appeals ratiocinated as follows:

“The fundamental rule of due process, on the other hand, requires

that a person be accorded notice and opportunity to be heard
(Rubenecia v. Civil Service Commission, G.R. No. 115942, 31 May
1995, 244 SCRA 640; Klaveness Maritime Agency, Inc. v. Palmos,
232 SCRA 448 [1994]). ‘Ample opportunity’ contemplated by law
connotes every kind of assistance which must be accorded to the
employee to enable him to prepare adequately for his defense
including legal representation (Segismundo v. NLRC, G.R. No.
112203, 13 December 1994, 329 SCRA 167, citing Abiera v.
NLRC, 215 SCRA 476 [1992]). Non-compliance with the twin
requirements of notice and hearing is fatal because these
requirements are conditions sine qua non before a dismissal may
be validly effected (Maneho v. NLRC, 229 SCRA 240 [1994], citing
Tiu v. NLRC, 215 SCRA 540 [1992]). In fact, notice and hearing
must be accorded an employee even though the employee does not
affirmatively demand it (Century Textile Mills v. NLRC, 161
SCRA 528 [1988]).
“A circumspect scrutiny of the record leaves Us unconvinced
that petitioners were accorded this opportunity to be heard when
they sought relief before respondent CSC’s Regional Office No. X
which dismissed their complaint, docketed as ADM. Case No. ND
93-023, against respondents City Mayor and Virginia V. Tuazon
for violation of the Civil Service Law and its implementing rules
and regulations. x x x
xxx
“As regards the validity of the issuance of E.O. No. 06-92, there
can be no dispute over the power of the government to reorganize,
whether traditional, progressive or whatever adjective is
appended to it. However, the essence of constitutional government
is adherence to basic rules. The rule of law requires that no
government official should feel free to do as he pleases using only
his avowedly sincere intentions and conscience to guide him. The
fundamental standards of fairness embodied in the bona fide rule
can not be disregarded (Mendoza v. Quisumbing, 186 SCRA 108
[1990]; see also Romualdez-Yap v. CSC, 225 SSCRA 285 [1993].”

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In the main, petitioners contend that the Court of Appeals
erred in setting aside the CSC Resolutions dropping
respondents from the rolls and EO No. 06-92 directing the
devolution of 19 national DSWD employees to the local or
city DSWD to be headed by petitioner Virginia Tuazon.
Private respondents, on the other hand, aver that their
refusal to report for work is justified since EO No. 06-92 is
not valid as it was issued without prior approval by the
Sanggunian in violation of Article 164, Rule XXII of the
Rules and Regulations Implementing the Local
Government Code.
Section 17 of the Local Government Code authorizes the
devolution of personnel, assets and liabilities, records of
basic services, and facilities of a national government
agency to local government units. Under this Code, the
term “devolution” refers to the act by which the national
government confers power and authority upon the various
local government units to perform specific functions and
responsibilities.
As a consequence of the devolution of national agencies,
Executive Order No. 503 was enacted by then President
Corazon C. Aquino to govern and ensure the efficient
transfer of responsibilities to the local government unit
concerned. Section 2 (g) provides:

“The local chief executive shall be responsible for all devolved

functions. He may delegate such powers and functions to his duly
authorized representative whose position shall preferably not be
lower than the rank of a local government department head. In all
cases of delegated authority, the local chief executive shall at all
times observe the principle of command responsibility.”

Section 2 (a) states that:

“Except as herein otherwise provided, devolved permanent

personnel shall be automatically reappointed by the local chief
executive concerned immediately upon their transfer which shall
not go beyond June 30, 1992.”

Likewise, Section 22 of CSC Memorandum Circular No. 19,

Series of 1992, specifies that:

“The positions absorbed by the local government units from the

national government agencies shall be automatically created upon
transfer of their corresponding budgetary allocation.

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“Devolved permanent personnel shall be automatically
reappointed by the local chief executive concerned immediately
upon their transfer.
“However, pending the completion of the new organizational
structure and staffing pattern, the local government executives
may assign devolved personnel to divisions/sections/units where
their qualifications are best suited or appropriate.”

It is thus clear that Mayor Plaza is empowered to issue EO

No. 06-92 in order to give effect to the devolution decreed
by the Local Government Code. As the local chief executive
of Butuan City, Mayor Plaza has the authority to reappoint
devolved personnel and may designate an employee to take
charge of a department until the appointment of a regular
head, as was done by the Mayor here.
CSC Memorandum Circular No. 19, Series of 1992,
provides further that heads of departments appointed by
the local chief executive must have the concurrence of the
majority of all the members of the Sanggunian concerned.
While initially, the Sanggunian rejected petitioner
Tuazon’s appointment as the City Government Department
Head II of the CSSDO, however, it later confirmed her
appointment.
The Court of Appeals erred in ruling that EO No. 06-92
violated respondents’ security of tenure as they were
transferred to another office without their consent. There
was no such transfer. Transfer is a movement from one
position to another which is of equivalent rank, level or
salary without break in6 service and may be imposed as an
administrative penalty. The change of respondents’ place
of work from the original CSSDO office to the DSWD
building is not a transfer. It was only a physical transfer of
their office to a new one done in the interest of public
service. There were no new movements or appointments
from one position to another.
Private respondents argue that they were denied due
process when they were dropped from the rolls.
CSC Memorandum Circular No. 38, Series of 1993,
provides:

“VI. Requirements For Certain Mode of Separation.

Dropping from the Rolls.—Non-disciplinary in nature, executory

but appealable to the CSC office concerned within fifteen (15)
days from receipt of the order or notice.

_______________

6 Cruz, The Law of Public Officers, 1999 Edition at p. 68.

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 Plaza II vs. Cassion

Officers and employees who are absent for at least thirty (30) days
without approved leave are considered on Absence Without Leave
(AWOL) and may be dropped from the service without prior
notice.
A notice or order of the dropping from the rolls of an employee
shall be issued by the appointing authority and submitted to the
CSC office concerned for record purposes.”

Pursuant to the above provisions and as ruled by the CSC,

the dropping from the rolls of private respondents is not
disciplinary in nature. Thus, their assertion that they were
denied due process is untenable. Since the dropping from
the rolls is not an administrative sanction, they need not be
notified or be heard.
WHEREFORE, the Decision dated February 14, 1996 of
the Court of Appeals is REVERSED. The CSC Resolution
No. 94-4626 dated August 22, 1994, and Resolution No. 94-
6243 dated November 17, 1994 dropping private
respondents from the rolls are AFFIRMED.
SO ORDERED.

          Panganiban (Chairman) and Carpio-Morales, JJ.,

concur.
     Corona, J., On Leave.

Judgment reversed, resolutions affirmed.

Note.—No prior notice is required to drop from the rolls

an employee who has been continuously absent without
approved leave (AWOL) for at least thirty (30) calendar
days. (Lameyra vs. Pangilinan, 322 SCRA 117 [2000])

——o0o——

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