Chanrobleslaw: Ruling of The RTC

After the RTC deemed the motion to dismiss submitted for
resolution,23 Vergara filed a manifestation informing the RTC of the dismissal

by the CSC Central Office of the petitioner’s appeal (CSC Resolution No.
011253). Vergara argued that she had utilized the pendency of the appeal as
her legal excuse in disobeying Office Order No. 008, which her affected co-
employees had dutifully obeyed; and that the dismissal of her appeal
removed any valid reason or legal ground for her to disobey the office orders
that the Provincial Governor had issued “for the good of the service and to
promote our food security.”24chanrobleslaw
The petitioner responded to the manifestation of Vergara, stating that she

had moved for the reconsideration of CSC Resolution No. 011253, and that
the outcome of her appeal in the CSC did not affect the case because the
issue involved was the legality of her re-assignment. 25chanrobleslaw
Ruling of the RTC
On October 22, 2001, the RTC dismissed the case, holding on the legality of
Office Order No. 008 and Office Order No. 005 as
follows:chanRoblesvirtualLawlibrary
Section 7, Rule 1 of the Memorandum Circular No. 19, series of 1999

provides: Heads of departments, agencies, provinces, cities, municipalities
and other instrumentalities shall have concurrent jurisdiction with the
Commission, over their respective officers and employees. In the case at
bar, it is the Chief Executive who has the power of disciplining over his
subordinates. But issuance of Office Order No. 008 is not a penalty. Section
5, paragraph 3, Rule VII of the Omnibus Rules Implementing Book V of
Executive Order No. 292, provides: Transfer shall not be considered
disciplinary when made in the interest of public service, in which case, the
employee concerned shall be informed of the reasons therefor. If the
imployee (sic) believes that there is no justification for the transfer, he may
appeal his case to the Commission.26
On the allegation of the petitioner that the “complaint” of Merto asking her
to explain why she should not be disciplined for her refusal to obey Office
Order No. 008, the RTC declared:chanRoblesvirtualLawlibrary
This Court agrees with the plaintiff that a complaint against a civil servant
shall not be given due course unless it is in writing and subscribed and
sworn to by the complainant. However, in cases initiated by the proper
disciplining authority, the complaint need not be under oath (Section 8, Rule
11, Memorandum Circular No. 19, series of 1999). This is explained
in Maloga v. Gella, 15 SCRA 370, which held that head or chief of office of
the bureau or office is deemed to be acting in his official capacity and under
his oath of office.
Lastly, the RTC opined that the petitioner should have first gone to the CSC
to challenge the legality of Office Order No. 008 and Office Order No. 005
prior to her resort to the courts; and that, therefore, she had not exhausted
all her administrative remedies considering that her case did not fall under
any of the exceptions to the application of the doctrine on the exhaustion of
administrative remedies.chanrobleslaw
Decision of the CA
Not satisfied, the petitioner appealed to the CA, contending

that:chanRoblesvirtualLawlibrary
I.
THE LOWER COURT ERRED IN DISMISSING THE CASE AGAINST

DEFENDANTS-APPELLEES BEAU HENRY L. MERTO AND ERWIN VERGARA FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES WHEN SAID
DEFENDANTS-APPELLEES HAVE BEEN DECLARED IN DEFAULT. THUS, THEY
NEVER RAISED THE ISSUE OF NON-EXHAUSTION OF ADMINISTRATIVE
REMEDIES AND ARE, THEREFORE, DEEMED TO HAVE WAIVED SUCH
DEFENSE;
II.
THE LOWER COURT ERRED IN DISMISSING THE CASE AS AGAINST

DEFENDANT-APPELLEE GREGORIO P. PALTINCA FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES WHEN THE SAID COURT HAS NOT EVEN ACTED
YET ON THE MOTION OF THE PLAINTIFF-APPELLANT TO ADMIT THE
SUPPLEMENTAL COMPLAINT AGAINST HIM. THEREFORE, THE MOTION OF
DEFENDANT-APPELLEEE GREGORIO P. PALTINCA TO DISMISS THE CASE ON
THE GROUND OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IS
PREMATURE. THE TRIAL COURT, FOR REASONS UNKNOWN, WAS TOO
PRECIPITATE IN DISMISSING THE CASE; AND
III.
IN ANY EVENT, THE LOWER COURT ERRED IN DISMISSING THE CASE FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BECAUSE THE ISSUE IS
PURELY A LEGAL ONE AND NOTHING OF AN ADMINISTRATIVE NATURE IS
TO BE AND CAN BE DONE. MOREOVER, THE CONTROVERTED ACT IS
PATENTLY ILLEGAL.27
On July 23, 2003, the CA affirmed the RTC,28 ruling that the legality of Office
Order No. 008 and Office Order No. 005 could not be denied because they
were “intended for public service.” It observed
that:chanRoblesvirtualLawlibrary
x x x x. The impugned Office Orders were issued by defendants-appellees

Merto and Paltinca in their capacity as heads of the Office of the Provincial
Agriculturist and were duly approved by the Provincial
Governor. More importantly, these Office Orders do not single out plaintiff-
appellee for transfer to the interior localities of the province. They cannot
therefore be considered as her personal banishment as a consequence of the
protest she initiated for the appointment of Kirit.29
It pointed out that the petitioner should have appealed her transfer to the
CSC conformably with the Omnibus Rules Implementing Book V of the
Administrative Code of 1987 that mandated an administrative appeal or
remedy before a resort to judicial action instead of directly resorting to the
court action.
On the petitioner’s contention that the RTC precipitately acted on Paltinca’s

motion to dismiss because it had yet to admit her supplemental complaint,
the CA observed:chanRoblesvirtualLawlibrary
Indeed, the trial court did not explicitly resolve to admit, in a separate order,
plaintiff-appellant’s Supplemental Complaint against defendant-appellee
Paltinca prior to the latter’s filing of a Motion to Dismiss the said
supplemental complaint against him. To Our mind, however, the procedural
lapse did not prejudice plaintiff-appellant’s substantive rights. First, it must
be noted that by filing the Supplemental Complaint against defendant-
appellee Paltinca, plaintiff-appellant had intended it all along to be admitted
by the trial court. Second, when plaintiff-appellant moved for the resolution
of the Motion to Dismiss and her Opposition thereto, she, in effect, impliedly
conceded the admission of the Supplemental Complaint subject of the
pending incidents for, otherwise, what was there to dismiss and to oppose
the dismissal of. Third, the trial court in fact indirectly admitted the
Supplemental Complaint when it dismissed the case against all the
defendants. Fourth and more importantly, even had the trial court decided
to deny the Motion to Dismiss on the ground of prematurity, there was
nothing to prevent the newly impleaded defendant from raising anew the
defense of non-exhaustion of administrative remedies in his answer and the
same would have been upheld and ultimately resulted in the dismissal of the
case not only as against him but even as against the original
defendants. Finally, jurisprudence dictates that departures from procedure
may be forgiven where they do not appear to have impaired the substantive
rights of the parties. As We have earlier noted, We perceive no impairment
of plaintiff-appellant’s substantive rights with the non-issuance by the trial
court of a separate order admitting the supplemental complaint. 30
As regards the petitioner’s position that the respondents waived the defense
of her non-exhaustion of administrative remedies by not filing their answer,
the CA pronounced:chanRoblesvirtualLawlibrary
Under paragraph c, Section 3, Rule 9 of the 1997 Revised Rules on Civil

Procedure, when a common cause of action is alleged against several
defendants, some of whom filed an answer and the others failed to do so,
thus, were declared in default, the court shall try the case against all
defendants, defaulted and not defaulted, upon the answer thus filed and
render judgment upon the evidence presented. Clearly, the answer of a non-
defaulting defendant, such as that of the additional defendant Paltinca,
inures to the benefit of those defaulted, like the original defendants Merto
and Vergara, since they all share a common fate in the action commenced
by plaintiff-appellee. The trial court, therefore, did not err in appreciating the
defense of non-exhaustion of administrative remedies raised by defendant-
appellee Paltinca in favor of his co-defendants-appellees Merto and Vergara
who had been declared in default by the trial court.
The petitioner moved for reconsideration, but the CA denied her

motion.31chanrobleslaw
Hence, this appeal.chanrobleslaw
Issues
The petitioner submits that the CA erred in holding that: (a) her case did not
constitute an exception to the rule on the exhaustion of administrative
remedies; (b) a motion to dismiss could be acted upon even without an
order admitting the supplemental complaint; and (c) the respondents as
defaulted defendants could not benefit from the special defense of her non-
exhaustion of administrative remedies raised by Paltinca, the non-defaulting
defendant.32chanrobleslaw
Ruling of the Court
The appeal lacks merit.
I
Petitioner’s non-exhaustion of her available
administrative remedies was fatal to her cause
The petitioner alleges that Office Order No. 008 and Office Order No. 005
were illegal for violating the rule against indiscriminate and whimsical
reassignment enunciated in the Administrative Code of 1987; that the
issuances were really intended for her, who was based in Dumaguete
City, “manifestly in the guise of assigning/reassigning her to the Barangay
Agricultural Development Project to the far flung isolated mountainous areas
in Sandulot and Jumalon, Siaton, Negros Oriental;” that the respondents
could not issue the office orders because “the transfer of an employee
without her consent is arbitrary for it is tantamount to removal without
cause and therefore invalid as it is violative of her security of tenure;” that
the transfer done without her consent amounted to her removal from office;
that the legal issue she raised could be threshed out only by a court of
justice, not by an administrative body; that her allegation that the office
orders were “contrary to law and jurisprudence on the matter” only meant
that she was raising a question of law, which ruled out administrative
intervention; that in keeping with the broad discretion of courts in urgent
matters, she would suffer an irreparable damage or injury unless there was
judicial intervention; and that the fact that the office orders were intended
for public service did not shield them from judicial scrutiny.
The petitioner argues that the declaration of the respondents in default

resulted in the waiver of their defense of non-exhaustion of administrative
remedies; and that the court had then no legal justification to dismiss the
case on that ground inasmuch as the respondents did not file a motion to set
aside the order of default.
In their comment, the respondents counter that the arguments of the
petitioner had been thoroughly discussed and passed upon by the CA; and
that she did not show that her appeal was one that the Court could take
cognizance of.
In her reply, the petitioner insisted that the decision of the CA was rendered
with grave abuse of discretion because the rule on exhaustion of
administrative remedies was not absolute; that there were exceptions to the
rule, such as when the question litigated was a purely legal one, or when
applying the rule would not provide plain, speedy and adequate remedy, or
when its application would cause great and irreparable damage; that a
ground for judicial review would exist when an administrative determination
was made without or in excess of authority; that Office Order No. 008 and
Office Order No. 005 were issued without or in excess of authority; and that
the CA overlooked that her right to security of tenure and right to due
process of law would be violated unless she went to court.

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After the RTC deemed the motion to dismiss submitted for

resolution,23 Vergara filed a manifestation informing the RTC of the dismissal

The petitioner responded to the manifestation of Vergara, stating that she

Ruling of the RTC

Section 7, Rule 1 of the Memorandum Circular No. 19, series of 1999

Not satisfied, the petitioner appealed to the CA, contending

THE LOWER COURT ERRED IN DISMISSING THE CASE AGAINST

THE LOWER COURT ERRED IN DISMISSING THE CASE AS AGAINST

x x x x. The impugned Office Orders were issued by defendants-appellees

On the petitioner’s contention that the RTC precipitately acted on Paltinca’s

Under paragraph c, Section 3, Rule 9 of the 1997 Revised Rules on Civil

The petitioner moved for reconsideration, but the CA denied her

Hence, this appeal.chanrobleslaw

Ruling of the Court

The appeal lacks merit.

The petitioner argues that the declaration of the respondents in default

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