Philippine Supreme Court Jurisprudence

Philippine Supreme Court Jurisprudence > Year 1958 > April 1958 Decisions > G.R. No. L-10552 April 28, 1958 - ALFREDO ERAUDA, ET AL. v. VICENTE S. DEL ROSARIO

103 Phil 489:



[G.R. No. L-10552. April 28, 1958.]

ALFREDO ERAUDA and PAULINA CRAMEN, Petitioners-Appellants, v. VICENTE S. DEL ROSARIO, as former City Mayor of Cebu, JOSE V. RODRIGUEZ, as incumbent City Mayor, FELIPE B. PAREJA, as City Treasurer, and RESTITUTO CANTOS, as City Auditor, respondents-appellees, MARCELO IBAÑEZ and ANTONIO HERMOSILLA, intervenors-appellees.

Fernando S. Ruiz for Appellants.

The City Fiscal and Quirico del Mar for Appellees.

Antonio Abad Tormis for intervenors-appellees.


1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; TEMPORARY EMPLOYEES; DURATION OF EMPLOYMENT. — Temporary employees, because of the nature of their appointment, could be removed and replaced by other non-eligibles after the expiration of their appointment or after 3 months’ service, in accordance with Section 682 of the Revised administrative Code (Orais, Et. Al. v. Ribo, 93 Phil., 985).

2. ID.; ID.; ID.; REINSTATEMENT; WHEN ACTION TO BE FILED. — Any person claiming right to a position in the civil service should be required to file his petition for reinstatement within the period of one year, otherwise he should be considered as having abandoned his office, and therefore, not entitled to bring action for his reinstatement.



Petitioners-appellants Paulino Cramen and Alfredo Erauda were both temporary employees, without civil service qualifications, in the Office of the City Veterinarian in Cebu City, the first having been appointed on March 31, 1953, as abattoir cleaner, and the second, on December 16, 1951, as cleaner. On July 22, 1953, without any investigation or hearing, they were summarily removed by respondent Vicente S. del Rosario, Acting Mayor of the City of Cebu, through the following

"Considering that you are holding only a temporary appointment, and in line with my policy of reorganizing the City Government, consequent upon my designation as Acting Mayor, and in order to insure more efficiency in the service, please be advised that your services shall be terminated at the close of business hours on July 22, 1952."cralaw virtua1aw library

Paulina Cramen was replaced by intervenor Antonio Hermosilla, and Alfredo Erauda by Felix Magallanes who was also ousted and replaced by intervenor Marcelo Ibañez. After their removal, they made demand upon respondent Del Rosario for their reinstatement, but it was denied. Later on Vicente S. del Rosario was substituted by Jose S. Rodriguez as City Mayor of Cebu, so petitioners also made demand upon Mayor Rodriguez for their reinstatement, but in vain. Hence on February 17, 1955, they filed in the Court of First Instance of Cebu Civil Case No. 3904, entitled Mandamus with Damages, to secure their reinstatement, their back salaries from the date of their removal and to obtain judgment against Vicente S. del Rosario for the sum of P2,000 as attorney’s fees and P3,000 as moral and exemplary damages on the ground that their removal was unlawful, illegal and void. After due trial, the complaint was dismissed, hence the present appeal wherein petitioners claim that the court erred (1) in holding that petitioners’ summary removal was unlawful; and (2) in allowing payment of salaries to intervenors pending trial of the case on its merit.

The question involved is mainly whether the removal of petitioners was unlawful or otherwise, and whether the action was brought in due time in view of the fact that the removal took place in July 22, 1953 and the present action was brought only on February 17, 1955.

There is no dispute that the petitioners were non-Civil Service eligibles and their appointment as abattoir cleaners was temporary in character. The provision of law regarding temporary emergency employees is Section 682 of the Revised Administrative Code, which provides —

"Temporary appointment without examination and certification by the Commissioner of Civil Service or his local representative shall not be made to a competitive position in any case, except when the public interest so require, and then only upon the prior authorization of the Commissioner of Civil Service; and any temporary appointment so authorized shall continue only for such period not exceeding three months as may be necessary to make appointment through certification of eligibles, and in no case extend beyond thirty days from receipt by the chief of the bureau or office of the Commissioner’s certification of eligibles; . . ."cralaw virtua1aw library

Under this provision of law, the appointment of the petitioners expires every three months, after which they could be replaced if the corresponding appointing authority believes it convenient. Accordingly, on July 22, 1953, respondent Vicente S. del Rosario, as Acting City Mayor of Cebu, could remove them lawfully and replace them with others; therefore, petitioner’s removal by respondent Mayor Del Rosario was lawful. It follows that petitioners have no right to compel Mayor Del Rosario or his successor, Mayor Rodriguez, to reinstate them. As we have previously held, temporary employees, because of the nature of their appointment, could be removed and replaced by other non-eligibles after the expiration of their appointment, or after 3 months’ service, in accordance with the aforeqouted Sec. 682 of the Revised Administrative Code (Orais Et. Al. v. Ribo, 93 Phil., 985; 49 Off. Gaz., 5386).

Lastly, we find that petitioners filed their complaint for reinstatement on February 17, 1955, or after a delay of 1 year, 6 months and 25 days, counted from July 22, 1953, the date of their removal, for which reason they may be considered as having abandoned their office for such a long delay in filing action, for —

"the Government must be immediately informed or advised if any person claims to be entitled to an office or a position in the civil service as against another actually holding it, so that the Government may not be faced with the predicament of having to pay two salaries, for the person actually holding the office, although illegally, and another, for one not actually rendering service although entitled to do so. We hold that in view of the policy of the State contained in the law fixing the period of one year within which actions for quo warranto may be instituted, any person claiming right to a position in the civil service should also be required to file his petition for reinstatement within the period of one year, otherwise he is thereby considered as having abandoned his office.

One other point, merely procedural, needs to be considered. This is the fact that the objection as to the delay in filing the action is raised for the first time in this Court, not having been raised in the court below. The above circumstance (belated objection) would bar the consideration if it were a defense merely. However, we consider it to be essential to the petitioner’s of action that the same is filed within a year from the illegal removal. The delay is not merely a defense which may be interposed against it subject to waiver. It is essential to petitioner’s cause of action and may be considered even at this stage of the action.

‘We would go further by holding that the period fixed in the rule is a condition precedent to the existence of the cause of action, with the result that, if a complainant is not filed within one year, it cannot prosper although the matter is not set up in the answer or motion to dismiss.’ (Abeto v. Rodas, 46 Off. Gaz. [3], 930, 932.)" (Unabia v. City Mayor, Et Al., 99 Phil., 258).

As to the second assignment of error, we deem unnecessary to decide it in view of the foregoing conclusion to the effect that the herein petitioners are not entitled to reinstatement, and consequently to any back salaries.

Finding no errors in the decision appealed from, the same is hereby affirmed with costs against the appellants.

Paras, C.J. Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Felix, JJ., concur.

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