Manila
EN BANC
G.R. No. 97419 July 3, 1992
GAUDENCIO T. CENA, petitioner,
vs.
THE CIVIL SERVICE COMMISSION, and THE HON. PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission, respondents.
Separate Opinion
PADILLA, J.: concurring:
I concur in the majority opinion written by Mr. Justice Leo D. Medialdea, with a slight modification. The majority opinion would vest upon the Land Registration Authority "the discretion to allow petitioner Gaudencio Cena to extend his eleven (11) years, nine (9) months and six (6) days of government service to complete the fifteen (15) years service so that he may retire with full benefits under Section 11 par. (b) of P.D. 1146" (decision, p. 16). A reading of the cited provision of law which reads as follows:
Sec. 11. Conditions for Old-Age Pension.
x x x x x x x x x
(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee of sixty-five years of age with at least fifteen years of service: Provided, That if he has less than fifteen years of service, he shall be allowed to continue in the service to complete the fifteen years.
would indicate, in my opinion, that the government employee who has reached sixty-five (65) years of age but has rendered less than fifteen (15) years of service, has THE RIGHT to continue in the service to complete fifteen (15) years, and that the government office or agency where he is employed cannot but allow the exercise of such right of the subject employee. In short, the employing government office or agency must allow the government employee who has reached sixty-five (65) years of age, but has rendered less than fifteen (15) years of service, the opportunity to complete the fifteen (15) years of service in order to enjoy the benefits of old-age pension. It follows from this that if such government employee is no longer fit to complete the remainder of the fifteen (15) year service (after reaching age 65), he should be terminated for cause, after appropriate proceedings, otherwise, he has the right to continue in the service for purposes of completing his fifteen (15) years of service.
Separate Opinion
GRIÑO-AQUINO, J.: dissenting:
The issue raised in this petition for review of the Resolution No. 90-935 dated October 17, 1990 of the Civil Service Commission, is whether the government service of petitioner Gaudencio Cena as Registrar of Deeds for Malabon, Metro Manila, may be extended for a period of one (1) year only (from January 22, 1991 up to January 22, 1992) and not for as long as necessary to enable him to complete 15 years service so that he may retire with full benefits.
After a careful consideration of related provisions of the retirement laws, I submit that inasmuch as P.D. No. 1146 is silent on the matter, the Civil Service Commission, pursuant to the authority granted to it in the Administrative Code of 1987, "to take appropriate action on . . . all personnel matters in the Civil Service, including extension of service beyond retirement age" (paragraph 14, Section 12, Chapter 3, Subtitle A, Title I, Book V), appropriately promulgated Memorandum Circular No. 27, Series of 1990, limiting the extension of service to "not exceeding one year." The pertinent provisions of the circular are quoted below:
1. Any request for the extension of service of compulsory retirees to complete the fifteen (15) years service requirement for retirement shall be allowed only to permanent appointees in the career service who are regular members of the Government Service Insurance System (GSIS), and shall be granted for a period not exceeding one (1) year.
2. Any request for the extension of service of compulsory retiree to complete the fifteen (15) years service requirement for retirement who entered the government service at 57 years of age or over upon prior grant of authority to appoint him or her, shall no longer be granted.
3. Any request for the extension of service to complete the fifteen (15) years service requirement for retirement shall be filed not later than three (3) years prior to the date of compulsory retirement.
4. Any request for the extension of service of a compulsory retiree who meets the minimum number of years of service for retirement purposes may be granted for six (6) months only with no further extension. (pp. 64-65, Rollo; emphasis supplied.)
The maximum allowable extension of "not exceeding one year" fixed in paragraph 1 of CSC Memorandum Circular No. 27 is reasonable, just, and consistent with the general rule that "retirement shall be automatic and compulsory at the age of 65 years" (Sec. 12[e], Com. Act 186).
I believe that Section 11, paragraph (b) of P.D. 1146 contemplates a borderline situation where a compulsory retiree on his 65th birthday has completed more than 14, but less than 15, years of government service, or a few months short of the 15-year requirement which would enable him to collect an old-age pension. Pursuant to the beneficent objectives of our retirement laws, said retiree may be granted an extension of not more than one year to enable him to complete 15 years of government service and receive full retirement benefits including old-age pension which, otherwise, he would not be entitled to receive. Such extension will enable him to retire after his 65th birthday, but before he attains 66 years of age, hence, still within the mandatory retirement age of 65 years fixed by law, for as a matter of fact, one is 65 years old upon reaching his 65th birthday until the eve of his 66th.
Since Cena, on his 65th birthday, had rendered service to the government for a total of only 11 years, 9 months and 6 days, he is not entitled to an extension of his service to complete 15 years for it would illegally and unreasonably stretch his retirement age beyond his 68th birthday, or long after he shall have ceased to be 65 years old.
As Cena would not be able to complete 15 years of government service even if he were given a one-year extension of service, paragraph 1 of CSC Memorandum Circular No. 27 may not be availed of by him.ℒαwρhi৷ The applicable legal provision to him would be paragraph (b), Section 12 of P.D. 1146 which provides that "a member who has rendered at least three (3) years but less than 15 years of service at the time of separation shall, . . . upon separation after age sixty, ** receive a cash payment equivalent to 100% of his average monthly compensation for every year of service." He is not entitled to an old-age pension, length of service being the determinant of whether or not a retired employee would be entitled to such pension.
The petitioner's theory that a compulsory retiree (one who is 65 years old) should be allowed an extension of his service for any number of years to complete the 15-year-service requirement under Section 11(b), P.D. 1146, can produce absurd and inequitable results. An employee who has rendered only 3 years of government service at the age of 65 can have his service extended for 12 years and finally retire at the age of 77 and receive a life pension, while one who has served for 14 years, but whose service is terminated by death or incapacity at the age of 64, will only receive a cash gratuity equivalent to one month pay for every year of service in the government, without a life pension, under "Section 12, paragraph (b), P.D. No. 1146.
Worth pondering also are the points raised by the Civil Service Commission that extending the service of compulsory retirees for longer than one (1) year would: (1) give a premium to late-comers in the government service and in effect discriminate against those who enter the service at a younger age; (2) delay the promotion of the latter and of next-in-rank employees; and (3) prejudice the chances for employment of qualified young civil service applicants who have already passed the various government examinations but must wait for jobs to be vacated by "extendees" who have long passed the mandatory retirement age but are enjoying extension of their government service to complete 15 years so they may qualify for old-age pension.
While I agree with the stand of the Civil Service Commission that an extension of service may not exceed one year, I do not agree with the grant to Cena of a service extension of one (1) year from January 23, 1991, or until January 22, 1992 under paragraph 1 of Memorandum Circular No. 27 for that paragraph should apply to a compulsory retiree who needs an extension of "not exceeding one year" (Cena needs more than 3 years) to complete the 15-year-service requirement for old-age pension benefits. There is no point in granting to a 65-year-old retiree a one-year extension of service, if, anyway, as in Cena's case, the extension will not enable him to complete 15 years of government service. Applicable to Cena is paragraph (b), Section 12 of P.D. 1146 which provides that "a member who has rendered . . . less than 15 years of service upon separation after age sixty, (shall) receive a cash payment equivalent to 100% of his average monthly compensation for every year of service."
I therefore vote to dismiss the petition for certiorari.
Footnotes
** Separation at age sixty-five is separation "after age sixty."
Separate Opinion
ROMERO, J.: dissenting:
I adopt the arguments in the dissenting opinion of my esteemed colleague, J. Carolina Griño-Aquino, which are at once logical and reasonable even as it takes into account the sociological implications of a contrary ruling. At the same time, I add my own.
J. Aquino's interpretation is in consonance with the spirit of practically all existing retirement laws fixing the compulsory retirement age of government employees at sixty-five. The precursor of Presidential Decree No. 1146, Commonwealth Act No. 186, explicitly provided that retirement should be "automatic and compulsory at the age of sixty-five years." The phrase "automatic and compulsory" with reference to the retirement age of sixty-five years had been retained in subsequent amendatory laws, specifically Republic Act Nos. 660, 728 and 3096.
The word "compulsory" should be understood in its legal signification: involuntary or forced in contradistinction to voluntary.1 Considering the use of the word "compulsory" in connection with age sixty-five, the same word in Sec. 11 (b) of P.D. No. 1146 should refer only to the specified retirement age and not to the fifteen-year service mentioned therein. This paragraph merely cites one class of prospective retirees which would be eligible to receive old-age pension and that is, those who have reached the age of sixty-five years while at the same time having to their credit "at least fifteen years of service." That this is the intendment of the law is borne out by the succeeding proviso that contemplates the possibility that the same sixty-five year old may have served "less than fifteen years of service."
Moreover, to interpret the law as meaning that the age limit and the fifteen-year length of service should concur before a government employee is allowed the old-age pension may well give rise to a situation wherein a person who enters government service a year before reaching age sixty-five would have to wait until he is seventy-nine years old to be entitled to the old-age pension provided for in P.D. No. 1146, which is an absurdity. Hence, to give substance to the real signification of the law, the proviso in Sec. 11 (b) which states that a government employee who has "less than fifteen years of service, . . . shall be allowed to continue in the service to complete the fifteen years," should contemplate a situation wherein the employee has only a minimal period of time left to complete the fifteen-year period. What this minimal period is, the Civil Service Commission has correctly declared to be "not exceeding one year." Otherwise, the government may well be saddled with a corps of civil servants that may be regarded graphically as liabilities instead of assets.
Moreover, encouraging the retention of employees well beyond the age of sixty-five years would, in effect, swell the numbers of the qualified but unemployed many who, even now, face the bleak prospect of being edged out of the labor market by those who can but offer to the government and the people their diminishing physical and mental vitality.
Attention should be called to the fact that the dissenting opinion is in consonance with the present policy on retirement as well as trends being laid down by the other branches of the government on the matter.
For instance, there are bills now pending in Congress that seek to lower the compulsory retirement age of the bureaucracy. House Bill No. 33769 sponsored by Congressman Roco and other Congressmen would lower it from sixty-five to sixty.2
Its counterpart bill in the Senate, S. No. 561 whose author is Senator Tamano, likewise would amend the present law by lowering the compulsory age of retirement to sixty.3
House Bill No. 25903 earlier authored by Congressmen Monfort and Estrella would further reduce the compulsory retirement age to fifty-six in order to give the young retirees the opportunity to engage in gainful employment or otherwise utilize their skills and experiences while they are still relatively strong.
Along the same line of thinking, the proposed Civil Service Code would set the compulsory age of retirement at sixty.
On the specific issue of whether a compulsory retiree who has not served fifteen years should be allowed an extension for as long as necessary to enable him to complete the fifteen years of service required for entitlement to a life pension (which is the position of the petitioner) or just a maximum period of "not exceeding one year" as fixed in CSC Memorandum Circular No. 27 which is supported by the dissenting opinion, it is worthwhile calling attention to Memorandum Circular No. 654 issued by Executive Secretary Catalino Macaraig, Jr. Amending Memorandum Circular No. 163 dated March 5, 1968, it categorically states:
Officials or employees who have reached the compulsory retirement age of 65 years shall not be retained in the service, except for extremely meritorious reasons in which case the retention shall not exceed six (6) months.
According to the ponencia, this Circular "should apply only to employees or officials who have reached the compulsory retirement age of 65 years but who, at the same time, have completed the 15-year service requirement for retirement purposes." A close reading of the title of Memorandum Circular No. 65, as well as the relevant provision quoted above, leaves no room for ambiguity or interpretation inasmuch as there is no phrase that qualifies the scope of the law to those employees who have reached the compulsory retirement age of 65 years "but who, at the same time, have completed the 15-year service requirement for retirement purposes." To read into the Memorandum Circular this qualifying phrase is to unduly expand the coverage of the law to cases not intended by the Office of the Executive Secretary.
The ponencia proffers the argument that since the Court has allowed the officials and employees of the Judiciary who have reached the compulsory age of retirement but lacked the fifteen-year service requirement to continue working until they complete said period, there is "no cogent reason to rule otherwise in the case of ordinary employees of the Executive Branch as in the case of petitioner Cena". But there is a cogent reason Petitioner Gaudencio T. Cena, being an employee of the Land Registration Authority under the Department of Justice, falls under the Executive Department. Accordingly, Memorandum Circular No. 65 quoted in the above preceding paragraph which allows a retention or extension of only six months and this, only for "extremely meritorious reasons" should be applicable to his case.
Needless to say, it would conduce to sound management practice in the government if this rule could be rationalized and applied uniformly to all government employees, with the exceptions provided by law.
Footnotes
1 8 Words and Phrases 465 and 15A C.J.S. 312 both citing State v. Bradley, 230 P. 2d 216, 220.
2 The pertinent provision is reproduced below:
(INTRODUCED BY CONGRESSMEN ROCO, BAUTISTA, SR., PONCE DE LEON, BELTRAN, JR., MONFORT, CONGRESSWOMAN PLAZA (C), CONGRESSWOMEN JAVIER (R), BANDON, JR., ANIAG, JR., CONGRESSWOMEN COSETENG, LOBREGAT, CONGRESSMEN DANS, MITRA, DRAGON, BACALTOS, MONTEJO, MIRAN, VALDEZ, MASKARINO, TY, PUZON, CALINGASAN, PALACOL, DOMINGUEZ, ROMERO, YULO, MENDIOLA, DIMAPORO (M.A.B.), NAVARRO, SR., ROXAS, JR., CONGRESSWOMAN RAYMUNDO, CONGRESSMEN GILLEGO, MARTINEZ, JR., TIROL, BORJAL, LACSON, DUREZA, DEL MAR, BAGATSING (A), ESTRELLA (E), CONGRESSWOMEN ALMARIO, LABARIA, CONGRESSMEN WEBB, NOGRALES, SINGSON (L.) AND VILLAREAL, SR. PER COMMITTEE REPORT NO. 1318)
"Sec. 11. Conditions for [Old-Age Pension] OPTIONAL AND COMPULSORY RETIREMENT. — (a) [Old-Age pension] OPTIONAL RETIREMENT shall be [paid] AVAILABLE to a member who:
"(1) Has at least [fifteen] TWELVE years of service;
"(2) Is at least [sixty] FIFTY-FIVE years of age; and
"(3) Is [separated from] LEAVING the service.
"(b) [Unless the service is extended by appropriate authorities,] R
Retirement shall be compulsory for an employee at [sixty-five] SIXTY years of age with at least [fifteen] TWELVE years of service: Provided, That, if he has less than [fifteen] TWELVE years of service, he shall be allowed to continue in the service to complete the [fifteen] TWELVE years: PROVIDED, HOWEVER, THAT ALL SERVICES RENDERED IN THE GOVERNMENT IRRESPECTIVE OF STATUS OF APPOINTMENT DULY ACCREDITED SHALL BE COUNTED AS GOVERNMENT SERVICE FOR RETIREMENT UNDER THIS ACT; PROVIDED, FURTHER, THAT ALL GOVERNMENT EMPLOYEES WHO, AT THE TIME OF THE EFFECTIVITY OF THIS ACT, ARE SIXTY-ONE YEARS OF AGE AND ABOVE SHALL RETIRE UNDER THE FOLLOWING PHASES:
(1) THOSE WITHIN THE AGES OF SIXTY-FOUR TO SIXTY-FIVE YEARS OLD SHALL BE RETIRED ON THE FIRST YEAR OF IMPLEMENTATION OF THIS ACT;
(2) THOSE WITHIN THE AGES OF SIXTY-TWO TO SIXTY-THREE YEARS OLD SHALL BE RETIRED ON THE SECOND YEAR OF IMPLEMENTATION; AND
(3) THOSE SIXTY-ONE YEARS OF AGE SHALL BE RETIRED ON THE THIRD YEAR OF IMPLEMENTATION,
"PROVIDED, FINALLY, THAT PAYMENT OF ALL RETIREMENT BENEFITS TO A RETIREE SHALL BE MADE IN LUMP-SUM AND PAID NOT LATER THAN THE EFFECTIVITY DATE OF HIS RETIREMENT."
3 The pertinent provision runs thus:
"Sec. 11. Condition for Old-Age Pension. —
(a) Old-Age Pension shall be paid to a member who:
(1) has at least [fifteen] TWENTY years of service;
(2) is at least [sixty] FIFTY-FIVE years of age; and
(3) is separate from the service.
(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at [sixty-five] SIXTY years of age with at least [fifteen] TWENTY years of service; Provided, That if he has less than [fifteen] TWENTY years of service he shall be allowed to continue in the service to complete the (fifteen) TWENTY years."
4 This Circular states:
"MEMORANDUM CIRCULAR NO. 65
FURTHER AMENDING CIRCULAR NO. 163, DATED MARCH 5, 1968, AS AMENDED, PARTICULARLY AS REGARDS THE RETENTION IN THE SERVICE OF PERSONS WHO HAVE REACHED THE COMPULSORY RETIREMENT AGE OF 65 YEARS.
WHEREAS, this Office has been receiving requests for reinstatement and/or retention in the service of employees who have reached the compulsory retirement age of 65 years, despite the strict conditions provided for in Memorandum Circular No. 163, dated March 5, 1968, as amended.
WHEREAS, the President has recently adopted a policy to adhere more strictly to the law providing for compulsory retirement age of 65 years and, in extremely meritorious cases, to limit the service beyond the age of 65 years to six (6) months only.
WHEREFORE, the pertinent provision of Memorandum Circular No. 163 on the retention in the service of officials or employees who have reached the compulsory retirement age of 65 years, is hereby amended to read as follows
Officials or employees who have reached the compulsory retirement age of 65 years shall not be retained in the service; except for extremely meritorious reasons in which case the retention shall not exceed six (6) months.
All heads of departments, bureaus, offices and instrumentalities of the government including government-owned or controlled corporations, are hereby enjoined to require their respective offices to strictly comply with this circular.
This Circular shall take effect immediately.
By authority of the President
(Sgd.)
CATALINO MACARAIG, JR.
Executive Secretary
Manila, June 14, 1988
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