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EN BANC

[G.R. NO. 150792 - March 3, 2004]

HON. REMEDIOS L. PETILLA, Petitioner, v. COURT OF APPEALS (Former Thirteenth Division), CIVIL SERVICE COMMISSION and JERIEL L. ARDIENTE, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

Before this Court is a Petition for Certiorari¹ to nullify the Court of Appeals Resolutions² in CA-G.R. SP No. 65192 dated 22 June 2001 ("First Resolution") and 29 October 2001 ("Second Resolution"). The First Resolution denied due course and dismissed the Petition for Review ³ of petitioner Governor Remedios L. Petilla ("petitioner") while the Second Resolution denied the motion for reconsideration.

The Antecedents

On 1 July 1999, respondent Jeriel L. Ardiente ("respondent"), Nurse I of the Hilongos District Hospital, Hilongos, Leyte, filed a letter-protest before the Civil Service Commission ("CSC"), Region 8 Office. Respondent assailed his transfers to the Provincial Health Office, Government Center, Palo, Leyte, effective 6 May 1999, and to the Northwestern Leyte District Hospital, Calubian, Leyte, effective 21 May 1999.

Meanwhile, respondent applied for sick and vacation leave from 1 June to 31 August 1999. In a letter dated 7 September 1999,⁴ the Provincial Health Office returned and disapproved respondents leave applications based on Section 23(q), Rule XIV of the CSC Rules.⁵ During the same period until 4 October 1999, respondent continuously failed to report to his new workstation at the Northwestern Leyte District Hospital.

On 4 October 1999, petitioner issued Memorandum No. 99-255 dropping respondent from the roll of employees of the Leyte Provincial Government for unauthorized absences. Petitioner based her action on Section 35, Rule XVI⁶ of the CSC Rules.

On 8 October 1999, respondent received Memorandum No. 99-255. Respondent did not appeal or challenge the memorandum in the appropriate forum.

On 14 February 2000, the CSC⁷ issued Resolution No. 00-0441 declaring respondents reassignments void. The dispositive portion of the Resolution reads:

WHEREFORE, the Orders issued by Governor Remedios L. Petilla, Province of Leyte, reassigning Jeriel L. Ardiente are hereby declared void. Accordingly, Governor Petilla is hereby directed to restore Ardiente to his former workstation at the Hilongos District Hospital, Hilongos, Leyte.⁸

Petitioner filed a Motion for Reconsideration of CSC Resolution No. 00-0441.⁹ The CSC¹⁰ denied the motion for lack of merit in its Resolution No. 01-0726 dated 2 April 2001.¹¹ ςrνll

Subsequently, petitioner filed with the Court of Appeals a Motion for Extension of Time to File Petition for Review dated 29 May 2001 to question CSC Resolutions Nos. 00-0441 and 01-0726. Petitioner attached to her motion for extension the joint affidavit of Celia Maria dela Cruz ("Celia") and Ruth A. Loreto ("Ruth").¹² At the time, Celia was the Executive Assistant while Ruth was the Receiving Clerk of the Governors Office. In their joint affidavit, Ruth stated that she received CSC Resolution No. 01-0726 on 24 April 2001 and forwarded the same to Celia on the same date. Celia did not give CSC Resolution No. 01-0726 to petitioner because the latter was then in the west coast of Leyte attending to election matters. Meanwhile, Celia kept CSC Resolution No. 01-0726 inside the offices filing cabinet. It was only on 29 May 2001 that Celia and Ruth gave CSC Resolution No. 01-0726 to petitioner.

On 31 May 2001, without awaiting the Court of Appeals resolution of the motion for extension, petitioner filed with the Court of Appeals a Petition for Review assailing CSC Resolutions Nos. 00-0441 and 01-0726, docketed as CA-G.R. SP No. 65192.

On 22 June 2001, the Court of Appeals issued the First Resolution denying due course and dismissing CA-G.R. SP No. 65192 for petitioners failure to comply with the requirements of Section 6, Rule 43 of the Rules of Court.

On 19 September 2001, respondent filed a Motion for Execution¹³ of CSC Resolution No. 00-0441 with the Court of Appeals to which petitioner filed a Comment on 21 October 2001.

On 12 October 2001, petitioner filed a Motion for Reconsideration of the First Resolution attaching the certified true copies of the documents enumerated in the First Resolution. The appellate court denied the motion for reconsideration in the Second Resolution dated 29 October 2001.

Hence, this petition.

The Ruling of the Court of Appeals

The First Resolution denied due course and dismissed petitioners Petition for Review for failure to append clearly legible duplicate originals or certified true copies of the following:

(a) CSC Resolution No. 00-0441 declaring respondents transfer and reassignment as void;chanroblesvirtuallawlibrary

(b) Petitioners Motion for Reconsideration of CSC Resolution No. 00-0441;chanroblesvirtuallawlibrary

(c) Respondents letter-protest with the CSC, Region 8 Office, protesting his reassignments; andcralawlibrary

(d) Petitioners answer, if any, to respondents letter-protest.

The Court of Appeals stated that this failure violates Section 6, Rule 43 of the Rules of Court which provides:

SEC. 6. Contents of the petition. The Petition for Review shall (a) xxx (c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified copies of such material portions of the record referred to therein and other supporting papers; xxx

Citing Section 7 of Rule 43,¹⁴ the appellate court held that petitioners failure to comply with any of the requirements under Section 6, Rule 43 justifies dismissal of the Petition for Review .

The Second Resolution denied petitioners motion for reconsideration on the ground that petitioner filed the motion beyond the fifteen-day reglementary period. The pertinent portion of the Second Resolution reads:

Contrary to petitioners claim, as purportedly shown in her Annex A, that it was allegedly only on Sept. 28, 2001 that she received a copy of this Courts Resolution of June 22, 2001, outrightly dismissing her Petition for Review for the reasons therein stated: Registry Return Receipt No. 89778, dated June 22, 2001, clearly shows that a copy of our June 22, 2001 Resolution addressed to the Hon. Remedios L. Petilla, petitioner in CA-G.R. SP No. 65192, was sent to Purisima Street, Palo, Leyte, which could either be the petitioners official residence or her private abode, and was received thereat on the same date by a certain Jaime Santos. This means that the last day of the 15-day reglementary period within which to file a Motion for Reconsideration of the aforesaid resolution under Sec. 1, Rule 52 of the Rules of Court, or to appeal therefrom to the Supreme Court expired on July 14, 2001. Inexorably, therefore, the Motion for Reconsideration which was filed (posted) at the Hilongos, Leyte Post Office on Sept. 20, 2001, was filed more than two (2) months after the expiry date of the reglementary period within which to file a Motion for Reconsideration of the said Resolution of June 22, 2001, xxx

The Issue

The sole issue in this case is whether the Court of Appeals erred in issuing the assailed resolutions. The First Resolution denied due course and dismissed outright the Petition for Review for failure to comply with Section 6, Rule 43 of the Rules of Court. The Second Resolution denied the motion for reconsideration for being filed out of time.

The Courts Ruling

The petition lacks merit.

The Court of Appeals correctly denied due course and dismissed the Petition for Review but the denial should be on an entirely different ground.

The Court of Appeals should have denied due course and dismissed outright the Petition for Review for being filed out of time. Petitioner herself admits that the Petition for Review was "filed after the lapse of the 15-day period to appeal."¹⁵ Petitioner reasons that her employees, namely Ruth and Celia, gave her a copy of CSC Resolution No. 01-0726 only on 29 May 2001 because before that she was "at the West Coast of Leyte busy on election matters."

Petitioners justification for the late filing of the Petition for Review is not meritorious. Indisputably, Ruth and Celia received on 24 April 2001 a copy of CSC Resolution No. 01-0726 denying petitioners motion for reconsideration of CSC Resolution No. 00-0441. There is also no question that Celia as Executive Assistant and Ruth as Receiving Clerk of the Office of the Governor had authority to receive on behalf of petitioner notices or court processes including CSC Resolution No. 01-0726. While petitioner physically received CSC Resolution No. 01-0726 only on 29 May 2001, or 35 days from 24 April 2001,¹⁶ the date of receipt of CSC Resolution No. 01-0726 should be 24 April 2001 for computing the period to appeal. This is precisely because Ruth and Celia, absent any showing that petitioner did not authorize them to receive CSC Resolution No. 01-0726, received the resolution on 24 April 2001. In short, receipt by Ruth and Celia of CSC Resolution No. 01-0726 on 24 April 2001 is deemed receipt by petitioner. In Laza v. Court of Appeals,¹⁷ where the petitioners claimed that the person who received the trial courts decision had no authority to receive mails for Laza, we ruled:

xxx As to Leticia Ramos who had signed for the receipt of the said copy caused to be delivered by the Postmaster at Benjamins given address, there was no showing, at all, from the records of the case, that Leticia was not a person of sufficient discretion to receive the mail at the proper address appearing on the envelope which contained the registered mail. Petitioners claim was that she was not Benjamins agent or authorized representative to receive mails in his behalf. To follow petitioners stand would render nugatory the provisions on service by registered mail. Every house maid or house boy or any other person other than the addressee of registered mail would have to have a special power-of-attorney to receive such mail in behalf of the addressee. We agree with the respondent Court of Appeals finding that petitioners excuse for the late filing of their motion for reconsideration was rather flimsy and unrealistic. (Emphasis supplied)ςrαlαωlιbrαrÿ

In the present case, petitioner does not even claim that she did not authorize Ruth and Celia to receive CSC Resolution No. 01-0726. Moreover, the record is barren as to any explanation why Ruth and Celia did not immediately inform petitioner about the resolution. There is also absolutely no evidence showing that petitioner could not be reached or located when Ruth and Celia received the resolution. Furthermore, there is no showing that petitioner could not possibly have a copy of CSC Resolution No. 01-0726 before the period to appeal expired. Absent in the record is any proof that petitioner did not report for work or drop by her office for 35 days, from 24 April to 29 May 2001. Thus, petitioners excuse for the late filing of the Petition for Review is clearly flimsy.

Perfecting an appeal within the prescribed period is not only mandatory but also jurisdictional as held in Videogram Regulatory Board v. Court of Appeals,¹⁸ thus:

xxx There are certain procedural rules that must remain inviolable, like those setting the periods for perfecting an appeal or filing a Petition for Review , for it is doctrinally entrenched that the right to appeal is a statutory right and one who seeks to avail of that right must comply with the statute or rules. The rules, particularly the requirements for perfecting an appeal within the reglementary period specified in the law, must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business. Furthermore, the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional and the failure to perfect the appeal renders the judgment of the court final and executory. Just as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his/her case.

These periods are carefully guarded and lawyers are well-advised to keep track of their applications. After all, a denial of a petition for being time-barred is a decision on the merits. (Emphasis supplied)ςrαlαωlιbrαrÿ

Since petitioner received CSC Resolution No. 01-0726 on 24 April 2001, she had until 9 May 2001 to file with the Court of Appeals her appeal or motion for extension.¹⁹ However, the motion for extension to file Petition for Review and Petition for Review were both filed only on 31 May 2001. Clearly, petitioner filed the motion for extension and the Petition for Review beyond the prescribed period. In Ditching v. Court of Appeals,²⁰ we ruled that if a motion for extension is filed after the lapse of the period sought to be extended, then there is no longer any period to extend. In such event, the judgment or order is already final and executory.

Petitioner cannot correctly argue that "the Court of Appeals accepted the reasons and explanations on the circumstances why the Petition for Review was filed only on May 31, 2001."²¹ Otherwise, petitioner continues, the appellate court would have stated the late filing as another ground for dismissing the Petition for Review .²² ςrνll

To reiterate, perfection of an appeal in the manner and within the period prescribed by law is mandatory and jurisdictional.²³ Failure to interpose a timely appeal renders the assailed decision or order final and executory and deprives the appellate body of any jurisdiction to alter the final judgment.²⁴ The appellate court has power only to dismiss the appeal.²⁵ To rule that the appellate court accepted petitioners reason for the late filing of the Petition for Review , absent any exceptional circumstances to warrant such delay, is patently against settled jurisprudential rules.²⁶ ςrνll

Thus, we hold that petitioner clearly failed to perfect her appeal in the Court of Appeals. The Court of Appeals correctly denied due course and dismissed the Petition for Review .

At any rate, petitioner contends that respondents unchallenged dismissal from the roll of employees on 4 October 1999 rendered the CSC resolutions moot and academic. Petitioner also maintains that it is impossible to reinstate respondent to his former workstation because he is "no longer a bona fide employee of the Provincial Government of Leyte."²⁷ ςrνll

Petitioner issued the memorandum dismissing respondent while respondents protest was pending with the CSC and before the CSC declared his transfers illegal. Further, petitioner did not manifest before the CSC about her action, which would certainly affect the result of the case. Petitioner manifested about respondents dismissal for the first time in the Court of Appeals.²⁸ Petitioner believes that she had no obligation to inform the CSC about her action. Petitioner insists that it is respondent as the aggrieved party who should have manifested before the CSC about his dismissal. Petitioner further argues that she can even raise this issue for the first time before this Court because the instant petition is an original action for certiorari.

On the other hand, respondent did not challenge the validity of his dismissal in the appropriate forum and within the prescribed period. Respondent questioned the legality of his dismissal for the first time before this Court.

Evidently, both parties are at fault. Petitioner raised for the first time before this Court the issue of whether the respondents dismissal rendered the CSC resolutions moot.²⁹ Petitioner could have manifested about her action or moved for the dismissal of respondents protest when it was pending in the CSC. Had petitioner moved for the dismissal of respondents protest in the CSC on the ground that it was already moot, the CSC could have acted on it and properly decided the case. Moreover, petitioners action in dismissing respondent while the latters protest was pending in the CSC gives the impression that it was designed to render the CSC resolutions moot. On the other hand, respondent did not question the legality of his dismissal in the appropriate forum and within the prescribed period. However, this Court believes respondent deserves under the circumstances one last chance to defend his side and assail the legality of his dismissal in the interest of substantial justice.

Petitioner failed to show clearly that respondent openly defied the reassignment orders. A careful review of the records discloses that respondents absence from work from 1 June to 31 August 1999 was based on his applications for sick and vacation leave. The records also show that it was only on 9 September 1999 that the Provincial Health Office notified respondent of the disapproval of his leave applications. Therefore, it is safe to state that prior to 9 September 1999 respondent did not know that the Provincial Health Office had denied his leave applications. Since respondent was not aware of the denial of his leave applications, respondent cannot automatically be considered to be on absence without leave ("AWOL") for that period.

AWOL means that the employee is leaving or abandoning his post without justifiable reason and without notifying his employer.³⁰ In this case, petitioner gravely failed to show that respondent had the least intention to go on AWOL. Otherwise, respondent would not even have bothered to file his applications for sick and vacation leave. Moreover, had respondent intended to go on AWOL, respondent would not even have protested his reassignments in the first place, and seek his reinstatement to his former workstation. Respondents protest of his reassignments clearly contradicts petitioners claim that respondent was on AWOL. We apply by analogy the ruling in Cariño v. Daoas³¹ where we held that petitioner is "justified in not heeding her reassignment order because her basis was xxx the legal opinion of a regional office of the Civil Service Commission" that the reassignment is illegal. In that case, we ordered the reinstatement of petitioner who was dropped from the rolls for her absence without leave for more than thirty days. In this case, respondents absence was based on his leave applications, albeit denied, and not on his deliberate refusal to heed the reassignment orders.

However, no leave application supported respondents continuous absence from 1 September to 4 October 1999. Furthermore, respondent had already exhausted his leave credits. Nevertheless, the records do not show that respondent intended to leave or abandon his post. On the contrary, respondent contested the validity of the reassignment order. We cannot consider respondent on AWOL to justify petitioners act of dropping respondent from the rolls considering that the CSC declared void petitioners reassignment order. We consider respondent on leave without pay from 1 September to 4 October 1999.³² While respondent did not obtain a clearance from the Provincial Health Office, which is required for leave without pay in excess of one month,³³ this omission does not ipso facto amount to being on AWOL considering the circumstances of this case. Respondents absence from 1 September to 4 October 1999 was due principally to the pendency of his case with the CSC on the validity of his reassignment, which the CSC subsequently declared void.

The absence of notice to respondent before his dismissal is no longer an issue since respondent was not on AWOL. Nevertheless, for clarity, we shall state the rule on notice. Section 35, Rule XVI of the CSC Rules, which expressly states that an employee who is on AWOL³⁴ shall be dropped from the service after due notice, has been amended. Section 63 of CSC Resolution No. 983142 already allows the dismissal of a government employee who is on AWOL without prior notice.³⁵ However, the government official or employee who is on AWOL shall be informed of his separation from the service not later than five days from its effectivity.

WHEREFORE, we DISMISS the petition. The assailed Resolutions of the Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and TINGA, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.
Callejo, Sr., J., no part.

Endnotes:

¹ Under Rule 65 of the Rules of Court.

² Penned by Associate Justice Renato C. Dacudao with Associate Justices Romeo J. Callejo, Sr. (now Associate Justice of this Court) and Sergio L. Pestaño concurring.

³ Under Rule 43 of the Rules of Court.

⁴ Signed by Gemiliano V. Retulla, Provincial Health Officer II; and noted by Catalino B. Petilla, Provincial Government Assistant Department Head, and petitioner.

⁵ Section 23 (q), Rule XIV of the Omnibus Rules Implementing Book V of EO 292 and Other Pertinent Civil Service Laws provides:

(q) xxx

An officer or employee in the Civil Service shall be considered habitually absent if he incurs unauthorized absences exceeding the allowable 2.5 days monthly leave credit under the Leave Law for at least 3 months in a semester or at least 3 consecutive months during the year.

xxx In case of claim of ill-health, heads of departments of agencies are encouraged to verify the validity of such claim, and if not satisfied with the reason given, should disapprove the application for sick leave. On the other hand, cases of employees who absent themselves from work before approval of the application should be disapproved outright.

⁶ Section 35, Rule XVI of the CSC Omnibus Rules provides:

Section 35. Officers and employees who are absent for at least thirty (30) days without approved leave are considered on Absence Without Leave (AWOL) and shall be dropped from the service after due notice. However, when the exigencies of the service require his immediate presence and he fails/refuses to return to the service, the head of office may drop him from the service even prior to the expiration of the thirty (30) day period abovestated. (Emphasis supplied)ςrαlαωlιbrαrÿ

⁷ Composed of Chairman Corazon Alma G. De Leon and Commissioner Jose F. Erestain, Jr.

⁸ Rollo, p. 29.

⁹ Ibid., pp. 30-38.

¹⁰ Composed of Commissioners Jose F. Erestain, Jr. and J. Waldemar V. Valmores.

¹¹ Rollo, pp. 40-42. On 7 July 2000, the CSC already issued Resolution No. 001550 denying the motion for reconsideration. This Court will consider CSC Resolution No. 01-0726 only.

¹² Rollo, pp. 43-47.

¹³ CA Rollo, p. 110. The motion for execution was denied in the Second Resolution.

¹⁴ Section 7, Rule 43 provides:

SEC. 7. Effect of failure to compl with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof.

¹⁵ CA Rollo, p. 2.

¹⁶ Rollo, p. 43.

¹⁷ G.R. No. 122427, 13 March 1997, 269 SCRA 654.

¹⁸ G.R. No. 106564, 28 November 1996, 265 SCRA 50.

¹⁹ Section 4 of Rule 43 provides:

SEC. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, xxx or of the denial of petitioners motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the Petition for Review . No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

²⁰ G.R. No. 109834, 18 October 1996, 263 SCRA 343.

²¹ Rollo, p. 111.

²² Ibid., p. 112.

²³ Republic v. Court of Appeals, G.R. No. 132425, 31 August 1999, 313 SCRA 376; Demata v. Court of Appeals, G.R. No. 127697, 25 February 1999, 303 SCRA 690; United Placement International v. NLRC, G.R. No. 103370, 17 June 1996, 257 SCRA 404; Aguilar v. Blanco, No. L-32392, 31 August 1988, 165 SCRA 180.

²⁴ Paramount Vinyl Products Corp. v. NLRC, G.R. 81200, 17 October 1990, 190 SCRA 525. See also Ceniza v. Court of Appeals, G.R. No. 95296, 3 February 1993, 218 SCRA 390.

²⁵ Ceniza v. Court of Appeals, G.R. No. 95296, 3 February 1993, 218 SCRA 390.

²⁶ Trans International v. Court of Appeals, G.R. No. 128421, 12 October 1998, 297 SCRA 718.

²⁷ Rollo, p. 144.

²⁸ Ibid., p. 117.

²⁹ While she manifested about respondents dismissal before the Court of Appeals, petitioner raised this issue for the first time before this court.

³⁰ City Government of Makati v. Civil Service Commission, G.R. No. 131392, 6 February 2002, 376 SCRA 248.

³¹ G.R. No. 144493, 9 April 2002, 380 SCRA 355.

³² Section 56 of CSC Resolution No. 983142 provides:

Sec. 56. Leave without pay. All absences of an official or employee in excess of his accumulated vacation or sick leave credits earned shall be without pay.

xxx

³³ Section 57 of CSC Resolution No. 983142 provides:

Sec. 57. Limit of leave without pay. Leave without pay not exceeding one year may be granted, in addition to the vacation and/or sick leave earned. Leave without pay in excess of one month shall require the clearance of the proper head of department or agency.

³⁴ Absent for at least thirty days without approved leave.

³⁵ Section 63 of CSC Resolution No. 983142 provides:

Sec. 63. Effect of absence without approved leave. An official or an employee who is continuously absent without approved leave for at least thirty (30) calendar days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. He shall, however, be informed, at his address appearing on his 201 files of his separation from the service, not later than five (5) days from its effectivity.

xxx (Emphasis supplied)ςrαlαωlιbrαrÿ