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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 235 -
DROPPING FROM THE ROLLS OF ATTY. JACOB F. MONTESA, DIRECTOR III LEGAL
SERVICES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
This refers to the case of Atty. Jacob F.
Montesa, Director III Legal Services, Department of Interior and Local
Government, who is recommended to be dropped from the rolls for his
refusal to assume duties at his reassigned post in Davao City.
On July 26, 1994, DILG Secretary issued Department Order No. 94-370,
reassigning Atty. Montesa as Director III in Region XI, Davao City. On
December 5, 1994, Montesa informed the Secretary that he will re-assume
his duty as Chief of Legal Services upon the expiration of his sick
leave. The following day, Acting Secretary Alexander P. Aguirre
directed him to report to Region XI. Montesa requested for a
reconsideration of the order, but the same was denied. On January 20,
1995 he appealed the denial to the Civil Service Commission, which
appeal was dismissed on May 23, 1995.
Thereafter, Atty. Montesa filed a motion for reconsideration. On August
22, 1995, the Commission, denying the motion declared that:
"In the absence of grave abuse of discretion tantamount to oppression
or harassment, patent error or injustice on the part of the Head of
Office, exercising his authority under the law, the Commission may not
and cannot ordinarily set aside said reassignment order or declare it
null and void. This authority is granted to head of agencies under Sec.
26 (par. 7), Book V of the Administrative Code of 1987 which provides:
(7) Reassignment. An employee may be reassigned from one organizational
unit to another in the same agency: Provided, that such reassignment
shall not involve a reduction in rank, status or salary."
The Commission further noted that Montesa failed to prove that the
reassignment violated said provision.
With the denial, the Department, on October 10, 1995, reminded Montesa
to report to Region XI, otherwise the office shall be constrained to
consider him absent without leave (AWOL) and drop his name from the
rolls.
Instead of complying, Atty. Montesa filed a petition for review with
the Court of Appeals with a prayer for the issuance of a temporary
restraining order. No TRO was issued, however.
On November 9, 1995, Jaime A. Madrino, Region XI Regional Director,
informed the DILG Secretary that despite the October 10, 1995 reminder,
Atty. Montesa still had not reported for work.
The intransigence and open defiance displayed by Atty. Montesa which
greatly prejudiced and compromised public interest, led the DILG
Secretary to recommend the dropping of his name from the roster of
public servants.
After a careful study of the case, this Office hereby adopts the
recommendation.
Civil Service Commission Memorandum Circular No. 12 series of 1994
provides that an officer or employee who is continuously absent without
approved leave (AWOL) for at least thirty (30) calendar days shall be
separated from service or dropped from the rolls without prior notice.
He shall, however, be informed of his separation from service not later
than five (5) days from its effectivity.
This particular mode of separation is non-disciplinary in nature, thus
the ex-parte nature of termination. Further, it does not result to any
forfeiture of any benefits on the part of the official or employee; nor
in disqualifying him from reemployment in the government (Sec. 2.6,
CSC Memorandum Circular No. 12, s. of 1994).
The circular was issued to promote efficient and effective personnel
administration in government and to obviate any prejudice to the
service.
This office notes that the order of reassignment was issued on July 26,
1994. Although a public officer affected by the reassignment is granted
the remedy of appealing the order on the ground that the movement is
due to harassment or coercion, until this is proven however, the order
is presumed to be in the interest of the service and notwithstanding
the appeal, the decision to detail shall be executory. No such stay of
execution or restraining order was issued by any of the three bodies
which acted on his appeal. And yet to date, Atty. Montesa still has not
reported to his new post.
His actuations more than warrant the imposition of the sanction
provided for in Memorandum Circular No. 12, series of 1994.
Wherefore, in view of the foregoing, and upon the recommendation of the
Department of Interior and Local Government, for serious neglect of
duty and absences without official leave (AWOL), the name of Atty.
Jacob F. Montesa, Director III, Legal Services, is dropped from the
roster of public servants.
Done in the City of Manila,
this 13th day of December, in the year of Our Lord, Nineteen Hundred
and Ninety-Five.
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