G.R. No. L-17746 January 31, 1962
FACTS:
On July 13, 1960, Valeriano Ulep and Alejandro
Facundo jointly filed with the Court of First Instance of Pangasinan a petition
for mandamus (docketed as Special Civil Case No. T-669) against
respondents Leonardo Carbonell (municipal mayor of Asingan, Pangasinan),
Tiburcio Layos, Federico Domingo, Roberto Lopez, Mariano de los Trinos,
Bartolome Cruz (municipal councilors of Asingan), and Vicente Perez (municipal
treasurer) alleging, as first cause of action, that on February 11, 1948,
petitioner Ulep was appointed Local Civil Registry Clerk in the office of the
municipal treasurer of Asingan, and has held said position and received salary
therefor, continuously since his appointment; that because he is a non-civil
service eligible, he (Ulep) took the general clerical (qualifying) civil
service examination on February 27, 1960, pursuant to the provisions of
Republic Act No. 2260, known as the Civil Service Act of 1959; that on June 24,
1960, respondents
municipal councilors passed Resolution No. 67,
abolishing his position and, on the same day, approved Resolution No. 70,
creating 4 positions of policemen; and that four days later, respondent mayor
Carbonell wrote a letter to him (Ulep) terminating his services as Local Civil
Registry clerk.
RULING:
There is no
law which expressly authorizes a municipal council to abolish the positions it
has created, but the rule is well-settled that the power to create an office
includes the power to abolish it, unless there are constitutional or statutory
rules expressly or impliedly providing otherwise (Castillo v. Pajo, et al., G.
R. No. L-11262, prom. April 28, 1958, citing Brillo v. Enage, 50 O. G. 3102 and
67 C.J.S. 121). However, the office must be abolished in good faith; and if
immediately after the office is abolished, another office is created with
substantially the same duties, and a different individual is appointed, or if
it otherwise appears that the office was abolished for personal or political
reasons, the courts will intervene (Gacho, et al. v. Osmena, et al., G. R. No.
L-10989, prom. May 28, 1959, citing 37 Am. Jur. 858).
In
the instant case, the reasons which impelled the municipal council of Asingan
in adopting. Resolution No. 67 dated June 24, 1960, abolishing the position of
appellant are stated therein, to wit: there is "an excess of
personnel" in the office of the municipal treasurer of Asingan; the
position of appellant "could be undertaken by the internal revenue
clerk" in said office; and if abolished, the remaining positions in said office
"will be sufficient to warrant the sound operation of said office".
In respondents' answer, it is also stated that the appropriation for said
position "could be applied for more important and useful undertakings of
the municipality, particularly, in the implementation and pursuance of its
inherent duty, which is the present administration's avowed policy of
maintaining peace and order, which have been unduly neglected in the
past." Observe too, that the new positions created (in Resolution No. 70
of the same date as No. 67) are those of policemen, the duties of which, are
entirely different from those of appellant. In the circumstances, we are not
prepared to declare that the action of the municipal council of Asingan was an
abuse of the power and discretion lodged in it by existing law (Rodriguez v.
Montinola, G.R. No. L-5689, prom. May 14, 1954).
