Inexistent position

If a public officer is acquitted of the charge against her, she is entitled to reinstatement and to the salaries and benefits which she failed to receive during her suspension (Section 13, RA 3019). In this case of Cita, this provision was not applied. Let’s find out why.

Cita was employed as Accountant I in a District Engineering Office of the former Ministry of Public Highways. On November 5, 1982 however she was suspended by the Sandiganbayan together with 16 others on criminal charges of estafa and administrative charges of dishonesty and/or grave misconduct. At the time of her suspension, the merger of the Ministry of Public Highways with the Ministry of Public Works by virtue of Executive Order 710 dated July 27, 1981 (EO) was already being implemented. Pursuant to the said EO the new Minister of Public Works and Highways was allowed to appoint qualified personnel to appropriate positions in the new ministry from a list of those formerly employed in the abolished offices. Those not so appointed would be deemed laid off. Cita’s name was not included in the list in view of the pending criminal and administrative charges against her for which she was suspended. While she protested her exclusion, her protest was rejected.

On March 11, 1983, the administrative charges against her were provisionally dismissed since she was no longer in the service, without prejudice to its reopening if she would again be appointed. On August 4, 1987, the Sandiganbayan also lifted her suspension. So Cita requested the district engineer that she be reappointed to her former position as accountant. But this was denied since that position had already been abolished and reappointment to new position in the merged Ministry is not a matter of right but a matter of privilege to be determined according to the best judgment of the appointing authority.

In the meantime, Cita was also acquitted of the criminal charges of Estafa in a decision rendered by the Supreme Court dated August 5, 1993 reversing the decision of the Sandiganbayan convicting her. Thus Cita once more asked the now Department of Public Works and Highways (DPWH) to reinstate her as Accountant I and to pay her back salaries from November 1982 when she was suspended as well as all the benefits and gratuities she was entitled under the law. Cita cited the letter and spirit of Section 13, RA 3019. Could Cita’s request be granted?

No. The reality is that she was laid off, following the abolition of the Ministry of Public Works and the Ministry of Public Highways under Section 1 of E.O. 710. A valid abolition of offices is neither removal nor separation of the incumbents. No dismissal or separation arises because the position itself ceases to exist. Since Cita was not appointed to any position in the new Ministry, she was deemed laid off. The appointment of qualified personnel of the abolished Ministries to appropriate positions in the new Ministry is addressed to the sound discretion of the new Minister. In this case the new Minister did not act in bad faith in not appointing Cita to any position. He acted in accordance with the recommendation of a Committee which did not include Cita in the list because her suspension due to the pending criminal and administrative charges against her. Cita cannot invoke the provision of Section 13 of RA 3019 since the dismissal of the administrative proceedings against her was merely provisional, without prejudice to the reopening thereof in case of her reappointment to government service. Furthermore, section 13 presupposes that at the time of her acquittal, the position occupied by her when she was charged was still extant. In this case Cita’s position had been abolished years before her acquittal; as such there was no longer an existing position to which she could be reinstated. Her back wages could not be granted because when she was suspended on November 5, 1982, E.O. 710 abolishing the Ministry of Public works and Public Highways was already issued. She is entitled only to the payment of her accrued vacation and sick leave and other benefits under Section 12 of said E.O. 710 (Tan vs. DPWH G.R. 143289, November 11, 2004).

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