Gr. No. 189041 Civil Service Commission vs Yu July 31, 2012

GR. NO. 189041 CIVIL SERVICE COMMISSION VS YU JULY 31, 2012 Doctrine: Personnel of national agencies or offices shall be absorbed by the LGUs to which they belong or in whose areas they are assigned to the extent that it is administratively viable determined by the oversight committee: Provided, that the rights accorded to such personnel pursuant to civil service law, rules and regulations shall not be impaired: Facts:  A devolution program was implemented by the national government pursuant to R.A. No. 7160 devolving to the local government units the responsibility for the provision of basic services and facilities.  Prior to the devolution, the position of Provincial Health Officer II of the DOH Regional Office No. IX in Zamboanga City was held by Dr. Fortunato Castillo as well as being the head of the Basilan Health Hospital and Public Health Services. Dr. Agnes Ouida Yu, on the other hand is PHO I.  After the devolution, the Governor of Basilan, Governor Gerry Salapuddin, refused to accept Dr. Castillo as the incumbent PHO II, so she was retained by DOH until her retirement in 1996. In 1994, Dr. Yu was appointed by the Governor as PHO II.  In 1998, by virtue of R.A. No. 8543, the Basilan Provincial Hospital was converted to a tertiary hospital, and the hospital positions previously devolved to the LGU of Basilan were re-nationalized and reverted to the DOH. The position of PHO II was reclassified to Chief of Hospital II.  While Dr. Yu is among the reverted personnel, she was made to retain her original item of PHO II and the Secretary of DOH appointed Dr. Domingo Dayrit to the position of CHO II. Dr. Yu filed a letter of protest before the Civil Service Commission.  The Civil Service Commission issued a resolution granting the protest, revoking the appointment of Dr. Dayrit and directing the DOH Secretary to appoint Dr. Yu. On motion for reconsideration, however, the CSC reversed its resolution, contending that PHO was never devolved as it was retained by the DOH, that the PHO II position of Dr. Yu was newlycreated and therefore she did not have a vested right to the CHO II position. The motion for reconsideration being dismissed, she filed a petition of review to the CA to which the CA reversed and set aside the resolution of CSC.  The CSC now files this petition for review on certiorari under Rule 45 of the Rules of Court. Issue: Whether or not acceptance of personnel devolved form the agencies is mandatory. Whether or not there was abandonment of office when Dr. Castillo failed to assert her rights. Held:  Yes. Devolution is an act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities. Section 17(i) of the Local Government Code prescribes the manner of devolution, as follows: o (i) The devolution contemplated in this Code shall include the transfer to LGUs of the records, equipment, and other assets and

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personnel of the national agencies and offices corresponding to the devolved powers, functions and responsibilities. Personnel of said national agencies or offices shall be absorbed by the LGUs 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, that the rights accorded to such personnel pursuant to civil service law, rules and regulations shall not be impaired: Provided further, that the 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 LGU shall be retained by the National Government, without any diminution of rank, salary or tenure. E.O. No. 503 is the Implementing Rules and Regulations of the said section. Section 2 thereof states: o Section 2. Principles and Policies Governing Transfer of Personnel. o a. Coverage, Tenure, Compensation and Career Development. – xxx o 2. The absorption of the National Government Agency Personnel by the LGU shall be mandatory, in which case, the LGUs shall create the equivalent positions of the affected personnel except when it is not administratively viable. o 3. Absorption is not administratively viable when there is a duplication of functions unless the LGU opts to absorb the personnel concerned. o 4. The national personnel who are not absorbed by the LGUs under no. 3 above, shall be retained by the NGA concerned, subject to civil service law, rules and regulations.Xxx o 12. Except as herein otherwise provided, devolved permanent personnel shall be automatically reappointed by the LCE concerned immediately upon their transfer which shall not go beyond June 30, 1992. Hence, as stated in E.O. 503, the absorption of Dr. Castillo by the LGU is mandatory. The Governor’s refusal, without showing that it is not administratively viable, is invalid and whimsical. No. Abandonment of 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 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 form and is accompanied by deliberation and freedom of choice. The two essential elements of abandonment are: (1) an intention to abandon; (2) an overt or external act by which the intention is carried into effect (Canonizado vs Aguirre). In the case at bar, there is no voluntary abandonment because of the refusal of the governor to accept the devolved NGA personnel. The fact that Dr. Castillo did not question the refusal which is seemingly a lackadaisical attitude towards protecting her rights is not tantamount to abandonment. This is because, according to the Supreme Court, “the risk of incurring the ire of a powerful politician effectively tied her hands and

“it has become quite understandable that she could not don her gloves and fight even if she wants to.”  In the concurring opinion of Justice Leonardo-De Castro, it was however contended that there was an abandonment since there was an acquiescence of the officer in her wrongful removal or discharge, coupled with her acceptance of he re-absorption by the DOH.