THIRD DIVISION
[G.R. No. 132413. August 27, 1999]
RAMON ALQUIZOLA, SR., MARISSA C. DOROMAL and ADELO SECO, petitioners,
vs. GALLARDO OCOL, CAMILO P. PENACO, SATURNINO MENDOZA, RAFAEL R. ARDIENTE,
VICENTE C. CASERES, RICARDO B. ZOSA III and SIRAD M. UMPA, respondents.
D E C I S I O N
VITUG, J.:
Before the Court is a petition for
review on certiorari under Rule 45 of the Rules of Court seeking a
reversal of the decision, dated 19 November 1997, of the Regional Trial Court
of Lanao Del Norte, Branch 04, Iligan City, that has ordered petitioner Ramon
Alquizola, Sr., to cease and desist from dismissing respondents and replacing
them with his co-petitioners.
Petitioner Ramon Alquizola, Sr.,
won the post of Punong Barangay of Barangay Tubod, Iligan City,
in the 12th May 1997 barangay elections.
Respondents Gallardo Ocol, Camilo Penaco, Saturnino Mendoza, Rafael
Ardiente, Vicente Caseres, Ricardo Zosa III, and Sirad Umpa were appointees of
the former punong barangay of Barangay Tubod, the first two
occupying the positions of barangay treasurer and barangay secretary,
respectively, with the rest being barangay utility workers.
After the elections, petitioner
Alquizola terminated the services of respondents and appointed his
co-petitioners, Marissa Doromal and Adelo Seco, respectively, as barangay
treasurer and as barangay secretary. In
consonance with Section 394 and Section 395 of the Local Government Code, he
submitted both appointments to the Sangguniang Barangay for
approval. The Sanggunian
rejected the appointments.
Following the action taken by the Sangguniang
Barangay, respondents filed a complaint for quo warranto, mandamus
and prohibition with the Regional Trial Court of Lanao Del Norte to enjoin
petitioner from terminating the services of the former. The trial court found in favor of
respondents and ordered petitioner Ramon Alquizola, Sr., to cease and desist
from dismissing respondents on the ground that their dismissal had been
effected without the corresponding approval of the Sangguniang Barangay. It held that Section 389(b)(5) limited the
power of a barangay captain to remove appointive barangay
officials by requiring an approval of such act by a majority of the Sangguniang
Barangay. A motion for
reconsideration was denied.
The Court finds no merit in the
instant petition for certiorari.
The issue involved, purely a
question of law, relates to the proper application of the following provisions
of the Local Government Code; viz:
“Section 389. Chief Executive: Powers, Duties, and Functions. – x x x
“(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall:
“x x x x x x x x x
“(5) Upon approval by a majority of all the members of the sangguniang barangay, appoint or replace the barangay treasurer, the barangay secretary, and other appointive barangay officials;”
The term “replace” would
obviously embrace not only the appointment of the replacement but also the prior
removal of, or the vacation by, the official currently occupying the appointive
position concerned. “To replace” is to take the place of, to serve as a
substitute for or successor of, to put in place of, or to fill the post of an
incumbent.[1] In order to provide a replacement to an office, the
prior holder must have first been removed or the office must have, otherwise,
been previously rendered vacant.
Aside from what may be implicit in
Section 389, there is no other provision in the Local Government Code that
treats of the power of the Punong Barangay to remove the barangay
secretary, the barangay treasurer, or any other appointive barangay
official from office. The duration of
the term of office of these barangay officials have not been fixed by the
Local Government Code. Where the tenure
of the office is not fixed by law, it is a sound and useful rule to consider
the power of removal as being an incident to the power of appointment.[2] Elsewise stated, the power to remove is deemed
implied in the power to appoint.
The Code explicitly vests on the punong
barangay, upon approval by a majority of all the members of the sangguniang
barangay, the power to appoint or replace the barangay treasurer,
the barangay secretary, and other appointive barangay officials. This provision is reinforced, in the case of
the secretary and the treasurer, by the provisions of Section 394 and Section
395 of the Local Government Code; to wit:
“Section 394. Barangay Secretary: Appointment, Qualifications, Powers and Duties. - (a) The barangay secretary shall be appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. The appointment of the barangay secretary shall not be subject to attestation by the Civil Service Commission.”
“Section 395. Barangay Treasurer: Appointment, Qualifications, Powers and Duties. - (a) The barangay treasurer shall be appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. The appointment of the barangay treasurer shall not be subject to attestation by the Civil Service Commission.”
Verily,
the power of appointment is to be exercised conjointly by the punong
barangay an a majority of all the members of the sangguniang barangay. Without such conjoint action, neither an
appointment nor a replacement can be effectual.
Applying the rule that the power
to appoint includes the power to remove, one that the Court finds no cogent
reason to now depart from, the questioned dismissal from office of the barangay
officials by the punong barangay without the concurrence of the majority
of all the members of the Sangguniang Barangay cannot be legally
justified. To rule otherwise could also
create an absurd situation of the Sangguniang Barangay members refusing,
like here, to give their approval to the replacements selected by the punong
barangay who has unilaterally terminated the services of the
incumbents. It is likely that the
legislature did not intend this absurdity to flow from its enactment of the
law.
WHEREFORE, the instant petition is DENIED and the decision,
dated 19 November 1997, of the Regional Trial Court of Lanao Del Norte is
AFFIRMED. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.