[ G.R. No. 14908. October 31, 1963 ] 118 Phil. 1155; 62 OG 7724 (October, 1966)
[ G.R. No. 14908. October 31, 1963 ]
SINFORIANO V. URGELIO, JOSE V. ENCABO, AND JORGE M. VILLARIN, PETITIONERS, JOSE V. ENCABO AND JORGE M. VILLARIN, PETITIONERS-APPELLANTS, VS. SERGIO OSMENA, JR., THE MUNICIPAL BOARD OF CEBU CITY, THE CITY OF CEBU, RAMON DUTERTE, CASIMERO V. MADARANG, CARLOS J. GUIZON, OSMUNDO G. RAMA, FLORENCIO S. UROT, CEPERINA U. DEL ROSARIO, GENEROSO JACA, CECILIO DE LA VICTORIA, JOAQUIN L. PANIS, PEDRO B. CLAVANO, THE CITY TREASURER, AND THE CITY AUDITOR OF CEBU CITY, RESPONDENTS-APPELLEES. D E C I S I O N
MAKALINTAL, J.:
This is an appeal from the decision of the Court of First Instance of Cebu dated 4 December 1957, dismissing the petition for mandamus filed by herein appellants.
The facts are stipulated. The individual respondents mentioned by names in the caption were officials of the city government of Cebu who assumed their respective positions on January 1, 1956. Sergio Osmeña Jr. was the City Mayor, Ramon Duterte was the Vice-Mayor and the rest, City Councilors. Sinforiano V. Urgelio (one of petitioners below but apparently not appellant here) was a laborer in the office of the City Mayor since June 1946 with compensation at the rate of P4.70 daily. Appellants Jose V. Encabo and Jorge Villarin were also employed in the same office as office helper and laborer, with compensation at the rates of P4.80 and P4.50 daily, respectively. Encabo had been there since May 1948; Villarin since April 1954. All three were performing clerical duties and were members of the Government Service Insurance System, showing the permanent character of their tenures.
On 5 January 1956 the Municipal Board of the City of Cebu passed a resolution creating thirty five (35) new positions in the office of the City Mayor, several of which were for laborers, janitors and informers. A little over a month later, or on 10 February 1956, the Municipal Board passed Ordinance No. 192, abolishing a number of positions in the same office, among them those held by petitioners. On 23 February 1956 the Mayor sent them written notices of the termination of their services, effective at the close of business hours on the following March 15, in view of the abolition of their positions under Ordinance No. 192. They protested such termination in letters to the Commissioner of the Civil Service and the Executive Secretary, dated 6 August and 10 October 1956, respectively. No replies were received by them; and so on 5 December 1956 they commenced the instant proceeding in the Court of First Instance of Cebu, praying that the abolition of their positions be declared void and without force and effect; that they be reinstated; that they be paid their salaries from the date of their separation; and that respondents be ordered to pay moral and exemplary damages as well as attorney’s fees. By amended petition dated 27 June 1957, the City of Cebu was included as party-respondent.
The main ground alleged in the petition and urged by appellants in this appeal is that the abolition of their positions was done in bad faith and in violation of the law and Constitution. There is no question that the municipal board of the city of Cebu had the power to legislate in regard to fixing the number and salaries of officials and employees not provided for in the City Charter (Sec. 17, Commonwealth Act No. 58). Appellants’ positions not being among those enumerated in the charter, they were subject to the power thus granted. The exercise of such power, however, has a recognized exception, namely, that the abolition of an office or position must be in good faith and not characterized by fraud and improper motives. It cannot be resorted to as a means to remove the incumbents in violation of the civil service law.[1]
The present case falls within the exception.
Ordinance No. 192 was ostensibly enacted for reasons of economy and efficiency. But economy may be ruled out, because not only had 35 new positions been created a little over a month prior to the enactment of the said ordinance, but after appellants’ positions were abolished sixteen additional ones were again created and increases in salaries of employees in the Mayor’s office were provided for. If the intention were not really to ease out petitioners from their positions they could have been accommodated in the new items thus created. It can not be said that their services were no longer needed, because as it appears in the stipulation of facts submitted to the court a quo, the same duties they had been performing prior to their separation continued to be performed by other employees.
The same Ordinance No. 192 has been the subject of another case similar to the one at bar and decided by this Court on 24 September 1958 (Concepcion Briones et al. vs. Sergio Osmeña, Jr., et al., 104 Phil., 588). In that decision we found that “the reasons given for the abolition of the positions of the appellees (alleged to be economy and efficiency) are untrue and constitute a mere subterfuge for the removal without cause of the said appellees, in violation of the security of Civil Service tenure as provided by the Constitution.”
In view of the foregoing, the judgment appealed from is reversed and the writ prayed for is granted. The abolition of appellants’ positions is declared null and void and respondent City of Cebu is ordered to reinstate them therein or to equivalent positions; to pay them their back wages or salaries since the date of their separation, less whatever they have earned from other employment in the interim, to be determined upon proper hearing before the court a quo. Respondents are also ordered to pay appellants the sum of P1,000.00 as attorney’s fees, plus costs.
Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon and Regala, JJ., concur.