case digest of napigquit

1G.R. No. 169004               September 15, 2010
PEOPLE OF THE PHILIPPINES, Petitioner, 
vs.
SANDIGANBAYAN (THIRD DIVISION) and ROLANDO PLAZA, Respondents.

PERALTA, J.

FACTS:

Respondent Rolando Plaza, a member of the Sangguniang Panglungsod of Toledo City, Cebu, with salary grade 25, had been charged in the Sandiganbayan with violation of Section 89 of Presidential Decree (P.D.) No. 1445, or The Auditing Code of the Philippines for his failure to liquidate the cash advances he received on December 19, 1995 in the amount of Thirty-Three Thousand Pesos (P33,000.00) .

Respondent Plaza filed a motion to dismiss with the Sandiganbayan which was granted for lack of jurisdiction without prejudice to its filing in the proper court.

Petitioner contends that the Sandiganbayan has criminal jurisdiction over cases involving public officials and employees enumerated under Section 4 (a) (1) of P.D. 1606, (as amended by Republic Act [R.A.] Nos. 7975 and 8249), whether or not occupying a position classified under salary grade 27 and above, who are charged not only for violation of R.A. 3019, R.A. 1379 or any of the felonies included in Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, but also for crimes committed in relation to office.

ISSUE:

Whether or not the Sandiganbayan has jurisdiction over a member of the Sangguniang Panglungsod  whose salary grade is below 27 and charged with violation of The Auditing Code of the Philippines.

RULING:

In ruling that the Sandiganbayan has jurisdiction over a member of the Sangguniang Panglungsod whose salary grade is below 27 and charged with violation of The Auditing Code of the Philippines, this Court cited the case of Serana vs Sandiganbayan, et.al., as a background on the conferment of jurisdiction of the Sandiganbayan, thus:

The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense. The exception contained in R.A 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines.

In order for the Sandiganbayan to acquire jurisdiction over the said offenses, the latter must be committed by, among others, officials of the executive branch occupying positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989. However, the law is not devoid of exceptions. Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law. Clearly, as decided in the earlier case and by simple application of the pertinent provisions of the law, respondent Plaza, a member of the Sangguniang Panglungsod during the alleged commission of an offense in relation to his office, necessarily falls within the original jurisdiction of the Sandiganbayan.

PETITION GRANTED. RESOLUTION OF SANDIGANBAYAN  NULLIFIED AND SET ASIDE.

2G.R. No.164316 September 27, 2006

OFFICE OF THE OMBUDSMAN, petitioner

Vs

GERTRUDES MADRIAGA  and ANA MARIE BERNARDO, respondents.

CARPIO MORALES, J.

FACTS:

Respondents Gertrudes Madriaga, school principal of San Juan Elementary School and Ana Marie Bernardo, school teacher and canteen manager of the same school was charged with violation of Section 1 of Rule IV and Section 1 of Rule VI  of the Rules Implementing Republic Act (R.A.) No. 6713 otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. Graft Investigation Officer found them guilty of violation of Section 5(a) of R.A. No.6713 and also of conduct grossly prejudicial to the best interest of the service, accordingly penalizes respondents with six months of suspension. Having been denied for their motion for reconsideration and/or reinvestigation, they elevated the case to the Court of Appeals via petition for certiorari. The appellate court declared that the penalty imposed by the Office of the Ombudsman is merely "recommendatory" to the Department of Education,  it (Office of the Ombudsman) having "only the power to investigate possible misconduct of a government official or employee in the performance of his functions, and thereafter recommend to the disciplining authority the appropriate penalty to be meted out; and that it is the disciplining authority that has the power or prerogative to impose such penalty.”

Hence, this petition.

ISSUE:

Whether  or not the suspension meted out by the Office of the Ombudsman to respondent Madriaga and Bernardo is merely recommendatory to the Department of Education.

RULING:

We note that Section 15(3) of R.A. No. 6770 echoes the constitutional grant (Article XI, Section 13 of the 1987 Constitution) to petitioner of the power to recommend the imposition of penalty on erring public officials and employees and ensure compliance therewith. That said provision qualifies the order to remove, suspend, demote, fine, censure, or prosecute" an officer or employee akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer,

CA’s DECISION is REVERSED AND SET ASIDE.

3G.R. No. 161098 September 13, 2007

OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
CELSO SANTIAGO, Respondent.

SANDOVAL-GUITIERREZ, J.

Facts:

On July 27, 2000, the City of Manila, through the City Budget Office, released a calamity fund for Barangay 183, Zone 16, same city, in the amount of P44,053.00. This was received by Barangay Chairman Celso Santiago, respondent herein.

On October 3, 2000, Rebecca B. Pangilinan, Mario B. Martin, Rolando H. Lopez and Alfredo M. Escaño, Sr., all barangay kagawad of Barangay 183, filed with the Office of the Ombudsman, petitioner, an administrative complaint for technical malversation, violation of the Anti-Graft and Corrupt Practices Act, dishonesty, grave misconduct and conduct unbecoming of a public officer against respondent.

Respondent filed a motion to dismiss the administrative complaint denying all the charges and contending that the complaint was filed to harass him.

The Office of the Ombudsman declared respondent guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service and dismissed him from the service

Respondent filed with the Court of Appeals a "Petition for Certiorari”, Prohibition and Mandatory Injunction with Prayer for the Issuance of a Temporary Restraining Order." The appeal was partially granted.

Petitioner contends, inter alia, that the obiter dictum in the case of Tapiador v. Office of the Ombudsman⁵ to the effect that the Ombudsman has no authority to directly dismiss an erring public official or employee from the government service⁶ is not a controlling doctrine.

ISSUE:

Whether the Ombudsman has the power to dismiss erring government officials or employees.

RULING;

The Office of the Ombudsman shall have the following powers, functions and duties:

Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;

Considering that the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, it follows that the Ombudsman’s "recommendation" is not merely advisory but is actually mandatory within the bounds of law.

The power of the Ombudsman to directly remove an erring public official has been jurisprudentially settled. In Estarija v. Ranada, we ruled:

The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. 

PETITION GRANTED. CA DECISION AND RESOLUTION are REVERSED. OMBUDSMAN’S DECISION IS AFFIRMED.

4G.R No.157875 December 19, 2006

Dr. Teresita Salva, President of Palawan state university, petitioner

Vs

Guillermo Carague, Commission on Audit, Raul Flores and Emmanuel Dalman, respondents

AUSTRIA-MARTINEZ, J.

FACTS:

In 1992, the PSC and the Integrand Development Construction, Inc. (IDCI) entered into a Construction Agreement for the construction of the PSC Multi-Purpose Building (Phase II) for the price of P1,685,883.45.  When the COA-Technical Audit Specialist (COA-TAS) reviewed the contract, it found an excess of P456,242.97, which was later reduced to P274,726.38. The excess was attributed to the costs of items of mobilization/demobilization and earthfill and compaction.

Petitioner contested the assessment made by the COA-TAS, arguing that the mobilization and demobilization was computed at P20,567.44 based at 2% Direct Costs per DPWH Order No. 3 but excluding the cost of providing temporary facilities such as bodega, perimeter fence, and access road, which were all included in the computation of the mobilization item by the agency; and the cost of earthfill and compaction was computed only at 8 working days, which is too short for a volume of 2,0334 cubic meters.

In COA Decision No. 95-211 dated March 28, 1995, the disallowance made by the COA-TAS was affirmed, and petitioner, together with PSC Vice-President Francisco M. Romantico and PSC Accountant Carolina S. Baloran, were held jointly and severally liable for the amount of P274,726.38.

Petitioner sought reconsideration thereof but it was denied.

Hence, the present Amended Petition for certiorari.

ISSUE:

Whether or not petitioner should be held personally liable for the disallowed amount of (P274,726.38.)

RULING:

It should be noted that the disallowance fell under Mobilization and Demobilization, and Earthfill and Compaction expenses, as appearing in the Approved Agency Estimates (AAE) The AAE was prepared by PSU Engineers. Petitioner's only participation therein was to approve the same. As in the case of Suarez v Commission on Audit petitioner had nothing to do with the preparation and the computation of the AAE. Therefore, she should not have been held liable for the amounts disallowed during the post-audit. Further, there is no showing that petitioner was ill-motivated, or that she had personally profited or sought to profit from the transactions  or that the disbursements have been made for personal or selfish ends.  Thus, petitioner should not be held personally liable for the disallowances.

Petition Granted, COA decision is Set Aside and Reversed.

5G.R. No.146824 November 21, 2007

Ecarnacion E. Santiago, petitioner

Vs

Commission on Audit

AZCUNA, J.

FACTS:

On September 13, 2007, petitioner filed a motion for clarification of the dispositive portion of the Decision in this case which was promulgated on June 15, 2006 Petitioner informed the Court that upon the directive of the Bureau of Local Government Finance Executive Director Ma. Presentacion R. Montesa, she is back to her regular station and formally assumed office as the Municipal Treasurer of Goa, Camarines Sur, on February 26, 2007. In a letter dated August 13, 2007, petitioner requested respondents and the Municipal Mayor of Goa, Camarines Sur, to pay her representation allowance, additional compensation allowance, productivity bonus, year-end bonus, clothing allowance and other benefits, excluding her salary, from October 1998 up to the present based on the dispositive portion of the Decision. In a letter dated August 22, 2007, respondent COA, through the Regional Cluster Director, replied that the items requested cannot be paid to petitioner because this Court has already clarified the issue when it stated in the body of the Decision that COA can direct the proper officer to withhold petitioner’s salary and other emoluments. According to COA, “emoluments” necessarily include all allowances and any money due petitioner.

Petitioner prays that the dispositive portion of the Decision be clarified as to whether the emoluments due her as Municipal Treasurer are excluded from the item that respondents can withhold, so that in the event that the said emoluments are excluded, the same can be paid to her.

ISSUE:

Whether or not the salary and other emoluments of petitioner may be withheld by respondents and applied to her cash shortage determined merely in an audit examination.

RULING:

The Court held that “regarding the propriety of withholding the petitioner’s salary, the Court holds that COA can direct the proper officer to withhold petitioner’s salary and other emoluments under Section 21, Chapter 4, Subtitle B, Book V of the Administrative Code of 1987, which is substantially the same as Section 37 of PD No. 1445, the legal basis of COA. As a result, the amount of petitioner’s salary remitted to the local government treasurer as payment of petitioner’s cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness. Hence, it is clear that respondent COA can withhold the salary and other emoluments due petitioner up to the amount of her alleged shortage.

WHEREFORE, it is hereby clarified that respondent COA is authorized to withhold petitioner’s salary and other emoluments up to the amount of her alleged shortage, but not to apply the withheld amount to the alleged shortage for which her liability is still being litigated.

6G.R. NO. 125129, MARCH 29, 1999

joseph h. reyes, petitoner

vs

commission on audit, respondent

PARDO, J.

facts:             

The TLRC Executive Committee created a Provident Fund the primary purpose of which was to augment the retirement benefits of the officers and employees of TLRC. The Provident Fund also provided additional benefits  to its members, in accordance with the policies and guidelines approved by the Board of Trustees. The Fund's sources of capital were from contributions of each member consisting of 2% of his gross monthly salary and TLRC's or the government's counterpart share equivalent to 10% of the member's gross monthly salary, earnings of funds and others. On June 3, 1993, Corporate Auditor Adelaida S. Flores suspended the transfer of funds from TLRC to the Provident Fund for the years 1990-1991, amounting to P11,065,715.84, per Notice of Suspension.. Auditor Flores held that under Par. 5.4 of Corporate Compensation Circular No. 10, Rules and Regulations issued under R.A. 6758,  fringe benefits were allowed provided that statutory authority covered such grant of benefits. In this case, there is no law authorizing the grant of fringe benefits to TLRC officers and employees. Furthermore, all Provident Funds are covered by R.A. 4537,  to which TLRC may not qualify. On September 14, 1993, the TLRC Provident Fund Board of Trustees issued Resolution discontinuing the collection of contributions for the Fund from both the TLRC and the members.  On December 2, 1993, Corporate Auditor Flores issued Notice of Disallowance.

Petitioner Joseph H. Reyes, a member of the TLRC Board of Trustees, appealed the disallowance to the Commission on Audit which was denied. It ruled that the government's share in the Provident Fund must be reverted to the TLRC and not be given to the employees. It held that since the primary purpose of the Provident Fund was not realized or attained due to its discontinuance and dissolution, then the employees were not entitled to the government's share in the Fund.

Hence, this petition to review the decision of the Commission on Audit.

ISSUE:

Wether or not the Provident’s fund pretermination or dissolution deprives the employee’s government share to which they are entitled

RULING:

To begin with, the judgments and final orders of the Commission on Audit are not reviewable by ordinary writ of error or appeal via certiorari to this Court. Only when the Commission on Audit acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may this Court entertain a petition for certiorari under Rule 65 under Rule 64, Section 2, 1997 Rules of Civil Procedure, and the (COA) did not acted such. As correctly pointed out by the COA in its decision, the government contributions were made on the condition that the same would be used to augment the retirement and other benefits of the TLRC employees. Since the purpose was not attained due to the question on the validity of the Fund, then the employees are not entitled to claim the government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be tantamount to the use of public funds outside the specific purpose for which the funds were appropriated. What is more, the Provident Fund was dissolved due to lack of statutory basis. Thus, contributions made were unauthorized, if not unlawful.

Petition DENIED, COA decision AFFIRMED.

7G.R. No.81467 October 27, 1989

NARCISO Y. SANTIAGO JR., PETITIONER

VS

CIVIL SERVICE COMMISSION AND LEONARDO A. JOSE, RESPONDENTS

MELENCHO-HERRERA, J.:

FACTS:

Then Customs Commissioner Wigberto E. Tanada extended a permanent promotional appointment, as Customs Collector III, to petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service Commission  (CSC), National Capital Region Office. Prior thereto, SANTIAGO held the position of Customs Collector I. Respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board against SANTIAGO's promotional appointment mainly on the ground that he was next-in-rank to the position of Collector of Customs III. Pursuant to Section 19(6) of Presidential Decree No. 807 (the Civil Service Decree), the Board referred the protest to Commissioner Tanada for appropriate action. Said official upheld SANTIAGO's promotional appointment on the grounds, among others, that: (1) the next-in-rank rule is no longer mandatory; (2) the protestee is competent and qualified for the position and such fact was not questioned by the protestant; and (3) existing law and jurisprudence give wide latitude of discretion to the appointing authority provided there is no clear showing of grave abuse of discretion or fraud. Respondent Jose appealed to the Board, which decided to revoke petitioner’s appointment and directed that respondent Jose be appointed in his stead.  Petitioner’s motion for reconsideration was denied for lack of merit. Respondent Commission affirmed the Board Resolutions in its own Resolution. Hence this certiorari petition.

ISSUE:

Wether or not the next-in-rank rule applicable in this case

RULING:

As previously ruled in Taduran vs Civil Service Commission, there is no mandatory nor peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice as to who is best qualified for the position. To apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment.

Resolution of Civil Service Commission is Set Aside and Petitioner’s promotional appointment is UPHELD.

8G.R. No.96298 May 14, 1991

RENATO M. LAPINID. PETITIONER

VS

CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY AND JUANITO JUNSAY, RESPONDENTS

CRUZ, J.

FATCS:

Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal. This appointment was protested by private respondent Juanito Junsay.  He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right as stated in his representations with the Appeals Board of PPA for a review of the decision of the Placement Committee. Complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before PPA. The Commission based on its evaluation, it directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications.

The results of the evaluation are as follows:

JUNSAY, Juanito		- 79.5
VILLEGAS, Benjamin		- 79
LAPINID, Renato		- 75
DULFO, Antonio		- 78
MARIANO, Eleuterio		- 79
FLORES, Nestor		- 80
DE GUZMAN, Alfonso		- 80
VER, Cesar		- 80

Lapinid filed a motion for reconsideration as well as the Philippine Ports Authority but both are denied.

ISSUE:

Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

RULING:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. The Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.

PETITION IS GRANTED. CSC RESOLUTIONS ARE REVERSED AND SET ASIDE.

9G.R No.135805 April 29, 1999

CIVIL SERVICE COMMISSION, PETITIONER

VS

PEDRO O. DACOYCOY, RESPONDENT

PARDO, J.

FACTS:

Respondent Pedro O. Dacoycoy was charged with nepotism. The Civil Service Commission found him guilty on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service. He filed with the Court of Appeals a special civil action for certiorari with preliminary injunction which was granted ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court further held that it is "the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act.” Hence this appeal.

ISSUE:

The scope of ban on nepotism

RULING:

We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service. Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: a) appointing authority, b)recommending authority, c) chief of the bureau of office and d) person exercising immediate supervision over the appointee. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. It is true that he did not appoint or recommend his two sons to the positions of driver and utility worker in the Balicuatro College of Arts and Trades. However, it was respondent Dacoycoy who certified that "funds are available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory". On the other hand, his son Ped stated in his position description form that his father was "his next higher supervisor". The circumvention of the ban on nepotism is quite obvious.

PETITION GRANTED. CA DECISION is REVERSED

CSC RESOLUTIONS are REVIVED AND AFFIRMED.

10G.R. No.89604 April 20, 1990

ROQUE FLORES, petitioner

Vs

COMMISSION ON ELECTIONS, NOBELITO RAPISORA, respondents

CRUZ, J.

FACTS:

Petitioner Roque Flores was proclaimed by the board of canvassers as having received the highest number of votes for kagawad  in the elections held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong barangay in accordance with Section 5 of Rep. Act No. 6679. He was voted as punong barangay during the 1982 elections, a separate position as that of kagawad. However, his election was protested by Nobelito Rapisora, herein private respondent before The Municipal Circuit Trial Court of Tayum. He argued that the ballot which only indicated “Flores” should be declared stray votes and should not be divided equally with the other candidate having the same surname. In his defense, the petitioner argued that in accordance with the Omnibus Election Code, the 4 questioned votes should be entitled to him under the equity of incumbent rule, which states that if there are 2 or more candidates with the same full name and one of them is an incumbent and the ballot is written inly on such full name, the vote is counted in favor of the incumbent. The lower court sustained the contention of the private respondent and subsequently declared him as the punong barangay. Hence this petition.

 ISSUE:

Whether or not he was entitled to the benefits of the equity-of-the-incumbent rule

 RULING:

The court does not agree.

The justification given by the resolution is that the position of punong barangay is different from that of kagawad as in fact it is. There should be no question that the punong barangay is an essentially  executive officer, unlike the kagawad, who is vested with mainly legislative functions. It follows that the petitioner cannot insist that he was running not for kagawad only but ultimately also for punong barangay in 1989 election. In fact, his certificate of candidacy was for kagawad and not for punong barangay. As the basic position being disputed in the barangay election was that of kagawad, that of punong barangay being conferred only by operation of law on the candidate placing first, the petitioner had to forfeit his position of punong barangay, which he was holding when he presented his candidacy for kagawad. Consequently, he cannot be credited with the four contested votes for Flores on the erroneous ground that he was still incumbent as punong barangay on the day of the election. The petitioner was no longer the incumbent punong barangay on election day and so was not entitled to the benefits of the equity-of-the-incumbent rule. The consequence is that the four votes claimed by him were correctly considered stray, making the private respondent the punong barangay of Poblacion, Tayum, Abra, for having received the highest number of votes for kagawad.

PETITION is DISMISSED.