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[G.R. No. 131245.December 14, 1999]
SUSAN A. JASARENO vs. ENCISA, et al.
EN BANC
Gentlemen :
Quoted hereunder, for your information, is a resolution of this Court dated DEC 14, 1999.
G.R. No. 131245(Susan A. Jasareno vs. Court of Appeals, Augusto Racelis, as Presiding Judge of the Regional Trial Court, Branch 53, Sorsogon and Aurora Encisa.)
Assailed before this Court is the September 16, 1997 decision 1 Penned by Associate Justice Ramon A. Barcelona and concurred in by Associate Justices Maximiano C. Asuncion and Artemio G. Tuquero.of the Court of Appeals in CA-G.R. SP No. 37077 which affirmed the decision 2 Penned by Judge Augusto M. Racelis.of the Regional Trial Court of Sorsogon, Branch 53 dismissing the complaint for mandamus as well as damages.
Since June 23, 1983, petitioner Susan A. Jasareno was a Secondary School Teacher at Bulacao High School with a permanent status. On August 1, 1988, she was appointed to the position of Secondary School Teacher III at the Abuyog Nationalized High School, Abuyog, Sorsogon, Sorsogon, likewise with a permanent status. She was transferred to Sorsogon National High School on November 24, 1992 by Assistant Schools Division Superintendent Hilda E. Trinidad. 3 Exhibit "B", Records, p. 54.Starting January 1993, petitioner did not receive her salary. When she inquired why she was not given her salary for January, private respondent Schools Division Superintendent Aurora R. Encisa explained that petitioner's position was deleted by virtue of the Organizational Staffing Classification Action Summary 4 TSN, October 20, 1993, p. 5 but referred to as Salary Classification and Standardization in the Court of Appeals decision in CA-G.R. SP No. 40770. (OSCAS) of the Department of Budget and Management (DBM). Allegedly, the items which were locally funded and effectively filled up by appointment after May 26, 1988 were not integrated into the national roll. Consequently, the Division of Sorsogon only received the salaries for nine teachers of Abuyog High School instead of ten.
Unsatisfied with the explanation, petitioner filed a suit for mandamus and damages praying for her reinstatement and the release of her salaries. The trial court, not persuaded by petitioner's protestations, dismissed her complaint. On appeal, the Court of Appeals affirmed the decision of the lower court.
Hence, this petition.
Petitioner justifies the filing of this present petition arguing that there was no plain, speedy or adequate remedy available to her in the ordinary course of law other than the instant suit. She claims that before instituting the complaint for mandamus, sufficient administrative remedies were exhausted but that private respondent "had just been beating the petitioner (sic) around the bush, leaving the petitioner, whose employment and income were threatened, with no alternative but to seek the coercive power of the Court." 5 Petition, Rollo, p. 10.She claims that private respondent did not protect her security of tenure.
In the same vein, petitioner insists that the reason her item was deleted was because she joined the mass leave of teachers in November 1992. It was immediately after that when she was summarily transferred to Sorsogon National High School in a temporary capacity without any formal order. Her salary for December was also withheld and her inquiry in that regard was ignored. It was only when she inquired from the DECS Regional Office as well as from the DBM that she got a reply. She claims that all along, private respondent knew about the deletion of her item as, in fact, she was the one responsible therefor.
As ground for the instant petition for certiorari, petitioner submits that the Court of Appeals abused its discretion in affirming the lower court's decision. 6 Petition, Rollo, p. 5.She alleges that the fundamental question raised in this special civil action for certiorari is whether respondent Aurora Encisa may be compelled to reinstate the petitioner by mandamus and be held liable for damages and whether the petitioner is entitled to her salary from January 1993 up to the time her name is reinstated in the payroll?
The petition is without merit.
It is apparent that the real issue in the instant petition is whether Private respondent can be compelled to reinstate petitioner in the service and thus be entitled to her salary as well as damages.
At the outset, the action taken by petitioner to assail the adverse decision of the Court of Appeals is not proper. The lower court dismissed petitioner's complaint on September 6, 1994, while the Court of Appeals affirmed the dismissal on September 16, 1997. An order of dismissal, Whether right or wrong, is a final order which is subject to appeal by certiorari and not a petition for certiorari. Where appeal by certiorari is available a remedy, petition for certiorari will not lie. 7 Heirs of Guido Yaptinchay and Isabel Yaptinchay v. Hon. Roy S. Del Rosario, G.R. No. 125320, March 2, 1999.The issue is a question of law which should have been properly ventilated in a petition for review on certiorari under Rule 45 of the 1997 Rules on Civil Procedure.
Since petitioner assails the September 16, 1997 decision of the Court of Appeals which she received on September 22, 1997, she had until October 7, 1997 to file her appeal by certiorari. Records would show, however, that petitioner filed the instant petition only on November 20, 1997 or forty-four (44) days from the last day of filing. In petitions for review on certiorari under Rule 45, the aggrieved party is given only fifteen days (15) from date of receipt of the assailed decision to appeal to this Court. It appears therefore that petitioner resorted to this instant petition for certiorari in order to circumvent the fifteen-day period to appeal. As such, the instant petition should be dismissed. This Court has oft-reiterated that certiorari is not a substitute for appeal, especially a lost appeal. Certiorari should not be allowed where the petitioner has - or had - other remedies available. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 8 Oriental Media, Inc. v. CA, 250 SCRA 647 [1995].
In any case, petitioner's contention that she resorted to this mode of appeal because she claims that there is no other plain, speedy and adequate remedy in the ordinary course of law is without basis. Petitioner could have filed a motion for reconsideration to the adverse decision of the Court of Appeals or she could have filed a petition for review on certiorari within fifteen days from notice of the denial of her motion for reconsideration.
As a rule, the special civil action for certiorari will not lie unless a motion for reconsideration is first filed before the respondent court to allow it an opportunity to correct its errors. Records show that no motion for reconsideration was filed by petitioner. 9 Rollo , p. 1.However, this rule admits of certain exceptions such as (a) where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b) where the questions raised in the certiorari Proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interest of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the Circumstances, a motion for reconsideration would be useless; (e) where Petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) Where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or Where public interest is involved. 10 Tan v. CA, 275 SCRA 568 [1997].
Petitioner cites "public welfare and advancement of public policy" as reasons for availing of the remedy of certiorari. 11 Petition, Rollo, pp. 13-14.Petitioner would like to impress upon this Court that her security of tenure is endangered if the ruling of the lower court and the Court of Appeals are affirmed. In other words, petitioner implies that public interest is involved.
We do not agree. Public interest is not, in any way, involved since security of tenure is not at issue. The issue here is whether petitioner availed of or exhausted the administrative remedies to protect her right to security of tenure. There is no question with regard to her right to security of tenure. Even at the inception of this case, petitioner never really made use of the mandated remedies available for this kind of controversy.
It appears from the record that petitioner inquired, through a letter dated February 5, 1993, 12 Records, p. 60.addressed to private respondent as Schools Division Superintendent, for the reason of her failure to receive her salary. In her reply 13 Records, p. 8.which petitioner received on February 26, 1993, private respondent explained and suggested that petitioner submit the required papers to facilitate the issuance of another appointment. Apparently not satisfied with private respondent's explanation, petitioner filed a complaint on March 30, 1993 14 Records, p. 1.instead of complying with private respondent's suggestion to submit the required papers for her reappointment.
After filing a complaint with the Regional Trial Court, petitioner likewise filed a complaint with the Office of the Provincial Prosecutor of Sorsogon. For good measure, petitioner likewise filed a complaint dated April 19, 1993 with the Office of the Ombudsman. 15 Records, p. 104.Both Offices dismissed petitioner's complaints. 16 Rollo , p. 69 & Exh. "13", Records, p. 104.
Only after the filing and the dismissal of her complaints with the Office of the Ombudsman and the Office of the Provincial Prosecutor of Sorsogon did petitioner file a complaint with the Regional Director of DECS. 17 Records, p. 148.The Division of Sorsogon, DECS, through Administrative Officer III Ernesto G. Gacias, submitted a 3rd Indorsement dated May 24, 1993 18 Exhibit "G", Records, p. 150.which answered point by point each of petitioner's complaints. Petitioner appealed to the Civil Service Commission (CSC).
The CSC ruled in favor of petitioner. The Office of the Solicitor General appealed the CSC ruling to the Court of Appeals. The Court of Appeals in CA-G.R. SP No. 40770 which was promulgated one month after the assailed Decision of the Court of Appeals in CA-G.R. SP No. 37077 held:
"Indeed, the court has finally spoken. Its decision is no piddling matter. Petitioner Aurora R. Encisa is 'absolutely powerless' to reinstate private respondent (petitioner herein) to a position or item that was abolished or non-existent. The deletion of private respondent's item in the OSCAS was not caused in any manner by petitioners, but by the OPIB, 19 Organization Productivity Improvement Bureau.DBM, and other higher authorities, and it is only those said agencies or the Central Office which can restore the item. x x x Most importantly, private respondent did not appeal from the decision of the DECS Region 5, Legaspi City, to the Department of Education, Culture and Sports, and thus failed to exhaust the most appropriate administrative remedy. The CSC erred in reviewing the final decisions of the court, and other agencies of the government, whose findings and conclusions are deemed as the law of the case."
We agree with the Court of Appeals' ruling in CA-G.R. SP No. 37077, thus:
"Having reviewed the records and without delving into the merits of this appeal, the Court finds that petitioner's action for mandamus should have been dismissed by the trial court in the first instance for lack of jurisdiction.
To begin with, it must be stressed that petitioner's claim against respondent actually involves her dismissal as Public Teacher I in view of the deletion of her position from the plantilla, and a further claim for reinstatement and backwages. Presidential Decree No. 807. Executive Order No. 292, and Rule II. Section 1 of Memorandum Circular, series of 1990 of the Civil Service Commission spell out the initial remedy of an aggrieved party against an alleged illegal dismissal. It is categorically provided therein that the party aggrieved by a decision, ruling, order or action of an agency of the government involving termination of services may appeal to the Civil Service Commission within fifteen days (15) days. Thereafter, the aggrieved party could go on certiorari to this Court under Revised Circular No. 1-91, as amended by Revised Administrative Circular No. 1-95."
Petitioner should have appealed the decision of the Court of Appeals, which reversed and set aside the resolution of the CSC in CA-G.R. SP No. 40770, instead of filing the instant petition for certiorari with this Court assailing the decision of the Court of Appeals in CA-G.R. SP No. 37077 Which affirmed the decision of the lower court. Had petitioner complied with private respondent's suggestion to submit her papers for reappointment, this Controversy would have been avoided.
IN VIEW OF THE FOREGOING, the instant petition is ordered DISMISSED .
Very truly yours,
(Sgd.) LUZVIMINDA D. PUNO
Clerk of Court
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