EN BANC
G.R. No. 189041 July 31, 2012
CIVIL SERVICE COMMISSION, Petitoner,
vs.
DR. AGNES OUIDA P. YU, Respondent.
vs.
DR. AGNES OUIDA P. YU, Respondent.
D E C I S I O N
PERLAS-BERNABE, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, the Civil Service Commission (CSC) assails the Decision1 dated March 30, 2009 and the Resolution2 dated July 9, 2009 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 00327-MIN declaring Dr. Agnes Ouida P. Yu to have a vested right in the position of Chief of Hospital II until her retirement on August 24, 2004.
The Facts
In 1992, the national government implemented a devolution program pursuant to Republic Act (R.A.) No. 7160, otherwise known as the ―The Local Government Code of 1991,” which affected the Department of Health (DOH) along with other government agencies.
Prior to the devolution, Dr. Fortunata Castillo (hereinafter Dr. Castillo) held the position of Provincial Health Officer II (PHO II) of the Department of Health (DOH) Regional Office No. IX in Zamboanga City and was the head of both the Basilan Provincial Health Hospital and Public Health Services. Respondent Dr. Agnes Ouida P. Yu (Dr. Yu), on the other hand, held the position of Provincial Health Officer I (PHO I). She was assigned, however, at the Integrated Provincial Health Office in Isabela, Basilan.
Upon the implementation of the devolution program, then Basilan Governor Gerry Salapuddin (Governor Salapuddin) refused to accept Dr. Castillo as the incumbent of the PHO II position that was to be devolved to the local government unit of Basilan, prompting the DOH to retain Dr. Castillo at the Regional Office No. IX in Zamboanga City where she would serve the remaining four years of her public service. She retired in 1996.
Meanwhile, in 1994, or two years after the implementation of the devolution program, Governor Salapuddin appointed Dr. Yu to the PHO II position.
On February 23, 1998, Republic Act No. 8543, otherwise known as ―An Act Converting the Basilan Provincial Hospital in the Municipality of Isabela, Province of Basilan, into a Tertiary Hospital Under the Full Administrative and Technical Supervision of the Department of Health, Increasing the Capacity to One Hundred Beds and Appropriating Funds Therefor," was passed into law whereby the hospital positions previously devolved to the local government unit of Basilan were re-nationalized and reverted to the DOH. The Basilan Provincial Health Hospital was later renamed the Basilan General Hospital, and the position of PHO II was then re-classified to Chief of Hospital II.
While Dr. Yu was among the personnel reverted to the DOH with the re-nationalization of the Basilan General Hospital, she was made to retain her original item of PHO II instead of being given the re-classified position of Chief of Hospital II. Subsequently, on August 1, 2003, then DOH Secretary Manuel M. Dayrit (Secretary Dayrit) appointed Dr. Domingo Remus A. Dayrit (Dr. Dayrit) to the position of Chief of Hospital II.
Aggrieved, Dr. Yu filed a letter of protest dated September 30, 20033 before the CSC claiming that she has a vested right to the position of Chief of Hospital II. The pertinent portions of said letter read:
I come before your good office protesting the appointment issued by … DOH Secretary Manuel M. Dayrit in favor of Dr. Domingo Remus A. Dayrit as Chief of Hospital … of the Basilan General Hospital …xxx… the position of Chief of Hospital II to which Dr. Dayrit has been appointed is a mere conversion from the item of Provincial Health Officer II previously occupied by the herein protestant.When what used to be called the Basilan Provincial Hospital was re-nationalized, now called the Basilan General Hospital, the position of Provincial Health Officer II, then occupied by the undersigned, was refused re-nationalized (sic) by DOH alleging the same position to be an LGU-created position, that is, that the Local Government of Basilan created the position. Thus, instead of the undersigned being automatically re-appointed Provincial Health Officer II of the Hospital, later to be renamed Chief of Hospital II, pursuant to the Re-Nationalization Law, she was instead given an appointment still as Provincial Health Officer II but under a co-terminous status at the Center for Health and Development, DOH … which position the undersigned refused to accept...
On June 7, 2004, the CSC issued Resolution4 No. 040655 granting Dr. Yu's protest and revoking the appointment of Dr. Dayrit as Chief of Hospital II of Basilan General Hospital. Further, Secretary Dayrit was directed to appoint Dr. Yu to said position. Upon motion for reconsideration, however, the CSC reversed itself and issued Resolution5 No. 040967 dated September 1, 2004 declaring that the position of PHO II was never devolved to the Provincial Government of Basilan but was retained by the DOH; that the PHO II position held by Dr. Yu was a newly-created position; and that, therefore, she did not have a vested right to the Chief of Hospital II position that was created by virtue of R.A No. 8543.
Dr. Yu then filed a motion for reconsideration which was denied by the CSC in its Resolution6 No. 050287 dated February 28, 2005. She then elevated her case to the CA on petition for review raising the sole issue of whether the item of PHO II she previously occupied was a devolved position or a locally created one.
On March 30, 2009, the CA rendered the assailed Decision in favor of Dr. Yu, disposing as follows:
FOR REASONS STATED, the Petition for Review is GRANTED and CSC Resolutions Nos. 040967 and 050287 are REVERSED and SET ASIDE. Petitioner is declared to have a vested right in the Chief of Hospital II position up to her retirement in August 24, 2004 and should receive her corresponding salaries and benefits.
In ruling that the PHO II position was devolved to the Basilan Provincial Government, the appellate court ratiocinated in this wise:
xxx The CSC’s ruling that there are two PHO II positions is not implausible but contrary to the evidence on hand.A perusal of the pleadings and attachments reveal that the PHO II position was devolved to the Basilan Provincial Government. In a letter dated May 19, 1994, Ms. Vivian L. Young, Officer-in-Charge of the Department of Health, Local Government Assistance & Monitoring Service informed former Governor Salapuddin that the PHO II position was devolved to the local government, viz:Dear Gov. Salapuddin,This will refer to your letter relative to the item position of Dr. Fortunata C. Castillo which has been devolved to the provincial government of BASILAN.Please be informed that only the devolved health personnel who were not accepted by their Local Chief Executive have been retained by DOH, the item positions per se remained in the respective LGU’s. xxx The LGU’s have the option to retain the items vacated or to collapse the same for financial reasons.xxxBased on the foregoing letter, Dr. Milagros L. Fernandez, Director IV of the DOH – Regional Field Office No. IX, Zamboanga City, wrote a letter to petitioner, to wit:xxxMadam:The letter dated May 19, 1994 of Ms. Vivian L. Young, Office-in-Charge (sic), LGAMS, Department of Health, clarifies the issue raised by the Provincial Governor, in his letter dated April 14, 1994, insofar as the retention of the Provincial Health Officer II of the province, in the person of Dr. Fortunata Castillo by the DOH in view of the non-acceptance by the Governor consistent with the provisions of law on devolution.
The motion for reconsideration of the foregoing Decision filed by the CSC was denied by the CA in its Resolution8 dated July 9, 2009. Hence, in this petition for review on certiorari, the CSC alleged that -
The Issue
THE COURT OF APPEALS ERRED IN HOLDING THAT THE PHO II POSITION PREVIOUSLY OCCUPIED BY RESPONDENT YU IS A DEVOLVED POSITION.9
The Ruling of the Court
In pursuance of the declared policy under The Local Government Code of 1991 (R.A. No. 7160) to provide for a more responsive and accountable local government structure through a system of decentralization,10 national agencies or offices, including the DOH, were mandated to devolve to the local government units the responsibility for the provision of basic services and facilities.11
As defined, ―devolution‖ is the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities.12 Specifically, Section 17(i) of the same Code prescribes the manner of devolution, as follows:
(i) The devolution contemplated in this Code shall include the transfer to local government units of the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions and responsibilities.Personnel of said national agencies or offices shall be absorbed by the local government units to which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said oversight committee: Provided, further, That regional directors who are career executive service officers and other officers of similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national government, without any diminution of rank, salary or tenure.
To ensure the proper implementation of the devolution process, then President Corazon C. Aquino issued Executive Order (E.O.) No. 503, otherwise known as the ―Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies Whose Functions Are To Be Devolved To The Local Government Units And For Other Related Purposes," which laid down the following pertinent guidelines with respect to the transfer of personnel:
Section 2. Principles and Policies Governing Transfer of Personnel. -a. Coverage, Tenure, Compensation and Career Development. —xxx
On the basis of the foregoing, it was mandatory for Governor Salapuddin to absorb the position of PHO II, as well as its incumbent, Dr. Fortunata Castillo. Highlighting the absence of discretion is the use of the word ―shall‖ both in Section 17 (i) of R.A. No. 7160 and in Section 2(a)(2) of E.O. No. 503, which connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion.13 The only instance that the LGU concerned may choose not to absorb the NGA personnel is when absorption is not administratively viable, meaning, it would result to duplication of functions, in which case, the NGA personnel shall be retained by the national government. However, in the absence of the recognized exception, devolved permanent personnel shall be automatically reappointed Section 2(a)(12) by the local chief executive concerned immediately upon their transfer which shall not go beyond June 30, 1992. Webster's Third New International Dictionary defines ―automatic‖ as ―involuntary either wholly or to a major extent so that any activity of the will is largely negligible.” Being ―automatic‖, thus, connotes something mechanical, spontaneous and perfunctory.14
There is no dearth of evidence showing that the item position of PHO II was, in fact, devolved to the Provincial Government of Basilan. Governor Salapuddin himself certified15 that said position was included in the 1992 OSCAS16 received from the Department of Budget and Management (DBM) with its corresponding budget appropriation. He further declared that during the formal turn over program in 1993 attended by Dr. Milagros Fernandez, representing the DOH Regional Office, the item position of PHO II was among the positions turned over to the Provincial Government of Basilan. Thus, the argument17 of petitioner CSC that only 53 plantilla positions, not 54, were devolved to the local government of Basilan does not hold water. It cannot be disputed that Dr. Castillo's PHO II position was devolved.
However, Governor Salapuddin refused to reappoint Dr. Castillo to her devolved position in the LGU for no other reason than that he ―wanted to accept only the item position of PHO II.”18 It was not shown, and no attempt was ever made on the part of the LGU to show, that the absorption of Dr. Castillo was not administratively viable. There being no valid and legal basis therefor, Governor Salapuddin's refusal to accept Dr. Castillo was, plainly and simply, whimsical.1âwphi1
Be that as it may, Governor Salapuddin's refusal did not prevent the devolution of Dr.Castillo which, together with that of the PHO II position, took effect by operation of law. In order to solve his dilemma, Governor Salapuddin requested that Dr. Castillo be detailed instead at the DOH, which was confirmed by then Secretary of Health Juan M. Flavier in his Department Order19 No. 228, series of 1993, signed on July 9, 1993, reproduced hereunder as follows:
This will officially confirm the detail of Dr. Fortunata A. Castillo PHO-II – Basilan at the Regional Health Field Office No. IX, Zamboanga City per request of the Governor of Basilan, the Honorable Jerry (sic) Salapuddin in his letter to Dr. Castillo, provided that the provincial government of Basilan will continue to pay her salary and other benefits she's entitled thereto until further notice or order. (Emphasis added)
Clearly therefore, the drawing of Dr. Castillo's salary from the LGU of Basilan which Governor Salapuddin claimed to have allowed simply ―to accommodate her (Dr. Castillo)"20 was, in fact, a necessary consequence of her devolution to the LGU and subsequent detail to the DOH. Officials and employees on detail with other offices shall be paid their salaries, emoluments, allowances, fringe benefits and other personal services costs from the appropriations of their parent agencies and in no case shall such be charged against the appropriations of the agencies where they are assigned or detailed, except when authorized by law.21
A detail is defined and governed by Executive Order 292, Book V, Title 1, Subtitle A, Chapter 5, Section 26 (6), thus:22
(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. (Emphasis added)
Had Dr. Castillo felt aggrieved by her detail to the DOH Regional Office, she was not without recourse. The law afforded her the right to appeal her case to the CSC, but she had not seen fit to question the justification for her detail. We could only surmise that, since Dr. Castillo was looking at only three more years from the time of her detail until her retirement in 1996, and considering that she obviously would not suffer any diminution in salary and rank, she found it pointless to pursue the matter.
Neither did Dr. Castillo find need to raise a howl when, at the behest of Governor Salapuddin who was determined to replace her, DOH officials categorized her as a devolution non-viable employee, along with 216 others nationwide, by the mere fact that she was not accepted by the LGU of Basilan and not because of an actual non-viability. Hence, in 1994, when Governor Salapuddin formally manifested his intention to stop the drawing of Dr. Castillo's salary from the LGU in anticipation of his appointment of Dr. Yu to the PHO II position, Dr. Castillo ceased to be a detailed employee at the DOH Regional Office but was re-absorbed by the DOH as a devolution non-viable employee and, consequently, paid salaries and benefits from the Miscellaneous Personnel Benefits Fund that had been set aside under the Office of the Secretary of Health precisely for such employees.
Ms. Vivian L. Young, Officer-In-Charge of the DOH Local Government Assistance and Monitoring Service, assured23 Governor Salapuddin that, while Dr. Castillo was ―retained‖ by the DOH, her item position remained with the LGU of Basilan. Moreover, Dr. Milagros L. Fernandez, Director IV of the DOH Regional Field Office No. IX in Zamboanga City, clarified24 that Dr. Castillo ―never carried with her the item position and the funds appropriated for salary and other benefits accruing to the position of Provincial Health Officer II.”
Hence, the appointment of Dr. Yu to the position PHO II.
The next question to be answered is – may Dr. Castillo be considered to have abandoned her position for consistently failing to assert her rights thereto?
We certainly do not believe so.
―Abandonment of an office is the voluntary relinquishment of an office by the holder with the intention of terminating his possession and control thereof. In order to constitute abandonment of office, it must be total and under such circumstance as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first, an intention to abandon and, second, an overt or 'external' act by which the intention is carried into effect."25
By no stretch of the imagination can Dr. Castillo's seeming lackadaisical attitude towards protecting her rights be construed as an abandonment of her position resulting in her having intentionally and voluntarily vacated the same. Governor Salapuddin's tenacious refusal to accept Dr. Castillo negates any and all voluntariness on the part of the latter to let go of her position. The risk of incurring the ire of a powerful politician effectively tied Dr. Castillo's hands, and it was quite understandable that she could not don her gloves and fight, even if she wanted to. Considering, however, that Governor Salapuddin's clear infraction of the law is not in issue before us, we need not make any pronouncement on this matter.
We rule, therefore, under the attendant circumstances of the case, that with Dr. Castillo's re-absorption by the DOH which appears to bear the former's approval, her devolved position with the LGU of Basilan was left vacant. In her May 19, 1994 letter to Governor Salapuddin, Ms. Vivian L. Young informed the local chief executive that he had the ―option to retain the item vacated or to collapse the same for financial reasons.”26 Thus, we hold that Dr. Yu was validly appointed to the position of PHO II in 1994 and, consequently, acquired a vested right to its re-classified designation – Chief of Hospital II. As such, Dr. Yu should have been automatically re-appointed by Secretary Dayrit in accordance with the Guidelines for the Re-Nationalization of Personnel, Assets and Appropriations of Basilan Provincial Hospital,27 the pertinent portion of which provides, as follows:
Item III. Principles and Policies Governing the Transfer of Basilan Provincial Hospital
A) xxx
3) The DOH shall assure that the re-nationalized personnel of the hospital shall:
3.i) Not be involuntarily separated, terminated or laid off;
3.ii) Continue to enjoy security of tenure;
3.iii) Be automatically re-appointed by the Secretary immediately upon their transfer;
3.iv) Retain their pay or benefits without diminution. (Emphasis supplied)
Considering, however, that Dr. Yu had already retired on August 24, 2004, we uphold the following findings of the appellate court, to wit:
xxx ln as much as a re-appointment is no longer feasible due to her retirement, petitioner should at least recover her salaries for the services she had rendered. However, petitioner admitted that she received her salary as PHO II converted to Chief of Hospital for the period August to November 2001. Therefore, she should receive her salary and benefits as Chief of Hospital from December 2001 up to her retirement in August 24, 2004. 28
WHEREFORE, the instant petition is hereby DENIED for lack of merit. The assailed Decision dated March 30, 2009 in CA-G.R. SP No. 00327-MIN is AFFIRMED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
Senior Associate Justice
| PRESBITERO J. VELASCO, JR. Associate Justice | TERESITA J. LEONARDO-DE CASTRO Associate Justice |
| ARTURO D. BRION Associate Justice | DIOSDADO M. PERALTA Associate Justice |
| LUCAS P. BERSAMIN Associate Justice | MARIANO C. DEL CASTILLO Associate Justice |
| ROBERTO A. ABAD Associate Justice | MARTIN S. VILLARAMA, JR. Associate Justice |
| JOSE PORTUGAL PEREZ Associate Justice | (On leave) JOSE CATRAL MENDOZA* Associate Justice |
| MARIA LOURDES P.A. SERENO Associate Justice | BIENVENIDO L. REYES Associate Justice |
C E R T I F I C A T I O N
I certify that the conclusions in the above Decision had been reached in consult at ion before the case \Vas assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
1 Rollo, pp. 47-57, penned by Associate Justice Edgardo T. Lloren, with Associate Justices Edgardo A. Camello and Jane Aurora C. Lantion, concurring.
2 Id. at 59-60.3 See Resolution No. 040655, id. at 68.
4 Id. at 68-71.
5 Id. at 61-64.
6 Id. at 73-76.
7 Id. at 57.
8 Id. at 6-7.
9 Petition, id. at 31.
10 Section 2, R.A. No. 7160.
11 Section 17(e), R.A. No. 7160.
12 Id.
13 Alternative Center for Organizational Reforms and Development, Inc., et al. v. Hon. Ronaldo Zamora, G.R. No. 144256, June 8, 2005, 459 SCRA 578, 600.
14 Id. at 599.15 Certification dated April 30, 2002, rollo, p. 66.
16 Organization, Staffing and Compensation Action.
17 Petition, id at 35.
18 Supra note 15.
19 Id., p. 65.
20 Supra note 15.
21 Section 33, Republic Act No. 7645, General Appropriations Act of 1993.
22 Republic of the Philippines, represented by the Civil Service Commission v. Minerva M.P. Pacheo, G.R. No. 178021, January 25, 2012.
23 In a letter dated May 19, 1994 addressed to Governor Salapuddin, see CA Decision dated March 30, 2009, rollo, p. 12.
24 In a letter dated October 3, 1994 addressed to Dr. Agnes P. Yu, id. at 13.25 Canonizado vs. Aguirre, G.R. No. 133132, February 15, 2001, 351 SCRA 659, 665-666.
26 As quoted in the CA Decision dated March 30, 2009, rollo, p. 12.
27 As quoted in the CSC Resolution No. 040655, id. at 70-71.
28 Supra note 26, p. 19.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
LEONARDO-DE CASTRO, J.:
I fully concur with the factual and legal basis of the conclusion reached by the ponencia of the Honorable Justice Estrella M. Perlas-Bernabe, save with respect to her opinion that Dr. Fortunata A. Castillo (Dr. Castillo) did not abandon the devolved position of the Public Health Officer II (PHOII). With due respect, I maintain the contrary view that Dr. Castillo did indeed abandon her statutory right to the said position by acquiescence. Otherwise, there would have been no vacancy in the said devolved position to which Dr. Agnes Ouida P. Yu (Dr. Yu) could be validly appointed.
In Canonizado v. Aguirre,1 this Court expounded on what constitutes abandonment of an office in this wise:
Abandonment of an office is the voluntary relinquishment of an office by the holder with the intention or terminating his possession and control thereof. In order to constitute abandonment of office, it must be total and under such circumstance as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment; first, an intention to abandon and, second, an overt or ‘external’ act by which the intention is carried into effect.Generally speaking, a person holding a public office may abandon such office by nonuser or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, non-performance of the duties of an office does not constitute abandonment where such non-performance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his right may constitute an abandonment of the office. Where while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the office.2 (Emphases supplied & citations omitted.)
In the above-stated case, the Court declared, among others, that, in general, a person holding public office may abandon such office by non-user or acquiescence.3 Non-user refers to a neglect to use a right or privilege or to exercise an office4 while acquiescence is a silent appearance of consent by failure to make any objection or by submission to an act of which one had knowledge. It exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right.5
The ponencia insists that Dr. Castillo did not abandon the devolved PHO II position by ratiocinating in this wise:
By no stretch of the imagination can Dr. Castillo’s seeming lackadaisical attitude towards protecting her rights be construed as an abandonment of her position resulting in her having intentionally and voluntarily vacated the same. Governor Salapuddin’s tenacious refusal to accept Dr. Castillo negates any and all voluntariness on the part of the latter to let go of her position. The risk of incurring the ire of a powerful politician effectively tied Dr. Castillo’s hands, and it was quite understandable that she could not don her gloves and fight, even if she wanted to. Considering, however, that Governor Salapuddin’s clear infraction of the law is not in issue before us, we need not make any pronouncement on this matter.
The ponencia’s reasoning, although plausible, is speculative at best. In fact, we can also surmise that Dr. Castillo’s failure to object or assert her right could also be an indication that she preferred to stay in her original station at the Department of Health Regional Office No. IX in Zamboanga City and where she in fact continued to serve from the time she was re-absorbed until she retired four (4) years hence.
The conduct of Dr. Castillo after Governor Salapuddin’s expressed preference to appoint another person in her stead is consistent with her abandonment or relinquishment by acquiescence of the position to which by law she should be automatically appointed.
Pursuant to her own letter dated May 14, 19936 to Governor Salapuddin, Dr. Castillo requested to draw her salary from the Provincial Government until she could be absorbed by her mother unit, the DOH. Governor Salapuddin and the DOH acceded to her request. Hence, Dr. Castillo was allowed to assume the devolved PHO II position from the start of the devolution until her acceptance of assignment in the DOH Regional Health Field Office No. IX in Zamboanga City. If Dr. Castillo wished to keep her position, in the face of her non-acceptance by the Provincial Governor and of the subsequent pronouncements made by DOH officials in support of the position of the Provincial Governor, then she should have instituted a proper judicial or administrative proceeding to question Dr. Yu’s appointment to the devolved PHO II position or, at the very least, formally made known her objection at the earliest opportunity. Instead, Dr. Castillo did not object to the appointment of Dr. Yu to her position. Moreover, it was by her own request and with her consent that she was re-absorbed by her mother unit in the DOH where she served until her retirement. Consequently, Dr. Castillo effectively vacated the devolved PHO II position. Hence, her salary was paid from the Project: Miscellaneous Personnel Benefits Funds, set aside for salaries and benefits of officials and employees not absorbed by the local government units. As the ponencia of Justice Bernabe states:
With Dr. Castillo’s re-absorption by the DOH which appears to bear the former’s approval, her devolved position with the LGU of Basilan was left vacant. (Emphases supplied.)
To summarize, Dr. Castillo’s manifest inaction to assert a legal right from 1992 up to her retirement from government service in 1996 constituted abandonment by acquiescence, of whatever legal right she had over the devolved position of PHO II. Coupled with her acceptance or consent to her re-absorption by the DOH in the DOH Regional Health Field Office No. IX in Zamboanga City, she effectively abandoned any legal right she had to the PHO II position devolved to the Province, which resulted in a vacancy in the said position. This paved the way for the valid appointment in 1994 of Dr. Yu who then was a de jure, not a de facto officer. Having been validly appointed to a vacant position that was mandatorily and automatically devolved to the Province by operation of law, Dr. Yu, as correctly pointed out by the assailed ruling of the Court of Appeals, had a vested right to the position of PHO II that was later re-nationalized and reclassified as Chief of Hospital II by operation of a subsequent law. As such, she is entitled to all the corresponding salaries and benefits pertaining to the said office which she had not received for the period not exceeding the day of l1er retirement which was on August 24, 2004.
In light of the foregoing, I reiterate my concurrence to the affirmance of the assailed Decision of the Court of Appeals dated March 30, 2009 in CA-G.R. SP No. 00327-MIN.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Associate Justice
Footnotes
2 Id.
3 Id.
4 Sangguniang Bayan of San Andres, Catanduanes v. Court of Appeals, G.R. No. 118883, January 16, 1998, 284 SCRA 276.
5 Blacks’s Law Dictionary (6th ed.), citing Yench v. Stockmar, C.A. Colo., 483 F.2d 820, 834.
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