Carino V Capulong

G.R. No.
97203 May 26, 1993

HON. ISIDRO CARIO, substituted by HON. ARMANDO V.
FABELLA, Secretary of Education, Culture and Sports, and
VENANCIO R. NAVA, Regional Director, DECS Region IX, Davao
City, petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of RTC-Makati,
Br. 134 and AMA COMPUTER COLLEGE, INC., Davao City and
AMA COMPUTER COLLEGE, respondents.
FACTS:
1. On 6 July 1990, AMA filed with the RTC of Manila, Branch
18, a petition for prohibition, certiorari and mandamus
against the Hon. Isidro Carino, DEC's Secretary and Atty.
Venancio R. Nava, Regional Director, Department of
Education, Culture and Sports, Region IX to annul and set
aside the closure order and to enjoin the respondents from
closing or padlocking AMACC, Davao City.
2. On 26 July 1990, the trial court dismissed the petition for
lack of merit.
3. Thereafter, AMA filed with the Court of Appeals a petition for
certiorari in assailing the 26 July order of the court a quo,
but, again, the Court of Appeals peremptorily dismissed the
petition and also denied its motion for reconsideration.
4. Under the cloak of an organization of parents of students
styling themselves as AMACC-PARENTS Organization,
5. AMA filed another petition for prohibition and/or mandamus
with preliminary injunction with the RTC of Davao City,
Branch 8, entitled "Freddie Retotal, Ricardo Fuentes, Calixta
Holazo, Ursula Reyes, in their own behalf and in behalf of
the other members of AMACC Parents' Organization vs.
Venancio Nava, in his capacity as Regional Director,
Department of Education, Culture and Sports."
6. On 7 August 1990, the court dismissed the petition.
7. AMA, however, in order to thwart the closure or padlocking of
its school in Davao City, filed with the RTC of Makati, Branch
134, presided over by respondent Judge, another petition for
mandamus, with damages, preliminary injunction and/or
restraining order against Hon. Isidro Carino, Secretary and
Director, Department of Education, Culture and Sports,

Region IX to compel the respondents to approve petitioners'
application for permit to operate retroactive to the
commencement of school year 1990-1991, and to enjoin the
closure and/or padlocking of AMA-Davao school.
8. Petitioners, through the Office of the Solicitor General,
moved to dismiss AMA's petition on the ground that
(1) AMA is not entitled to the writ of mandamus as
petitioners' authority to grant or deny the permit to
operate is discretionary and not ministerial;
(2) AMA failed to comply with the provisions of the
Education Act;
(3) AMA is blatantly engaging in forum shopping;
(4) AMA failed to exhaust available administrative
remedies before resorting to court; and
(5) lack of territorial jurisdiction over petitioner
Regional Director and AMA-Davao.
9. On 15 November 1990, the respondent Judge issued an
order directing the issuance of a writ of preliminary
injunction, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing reasons, let
a writ of preliminary injunction be issued, upon filing of
petitioners of a bond in the amount of P500,000.00, duly
approved by this Court, enjoining and restraining the
respondent Hon. Isidro Carino, his agents, representatives
and any person acting for and his behalf, from implementing
the closing and/or padlocking AMA Computer College, Inc. Davao City Branch, until further orders from this Court.
10. On the following day, on 16 November 1990, issued the writ
of preliminary injunction.
ISSUE: Whether or not the authority to grant permit by DECS to
applicant educational institution is a ministerial duty or discretionary
duty?
HELD: It is a discretionary duty. As a rule, mandamus will lie only to
compel an officer to perform a ministerial duty but not a discretionary
function. A ministerial duty is one which is so clear and specific as to

leave no room for the exercise of discretion in its performance. On
the other hand, a discretionary duty is that which by nature requires
the exercise of judgment.
As explained in the case of Symaco vs. Aquino,
A purely ministerial act or duty to a discretional act, is one which an
officer or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment, upon the propriety of
the act done. If the law imposes a duty upon a public officer, and
gives him the right to decide how or when the duty shall be
performed, such duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion nor judgment.
In the present case, the issuance of the permit in question is not a
ministerial duty of the petitioners. It is a discretionary duty or function
on the part of the petitioners because it had to be exercised in
accordance with and not in violation of the law and its
Implementing Rules and Regulations. Thus, as aptly observed by the
Solicitor General in his Motion to Dismiss the petition
Establishment or recognition of private schools through government
grant of permits is governed by law, specifically Batas Pambansa
Blg. 232. The authority to grant permit is vested upon the judgment
of the Department of Education, Culture and Sports, which
prescribes the rules and regulations governing the recognition on
private schools (Section 27, Batas Pambansa Blg. 232).
Whether to grant or not a permit is not a ministerial duty of the

Department of Education, Culture and Sports. Rather it is a
discretionary duty to be exercised in accordance with the rules and
regulations prescribed.
In the case at bar, petitioner has been operating a school without a
permit in blatant violation of law. Public respondent has no ministerial
duty to issue to petitioner a permit to operate a school in Davao City
before petitioner has even filed an application or before his
application has been first processed in accordance with the rules and
regulations on the matter. Certainly, public respondent is not enjoined
by any law to grant such permit or to allow such operation without a
permit, without first processing an application. To do so is violation of
the Educational Act. 38
ACCORDINGLY, the petition is GRANTED and the order dated 15
November 1990 and the writ of preliminary injunction dated 16
November 1990 are hereby ANNULLED and SET ASIDE.
The petition for mandamus before the respondent court is
DISMISSED.
The Temporary Restraining Order heretofore issued by this Court is
hereby made PERMANENT.

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G.R. No.

97203 May 26, 1993

Director, Department of Education, Culture and Sports,

function. A ministerial duty is one which is so clear and specific as to

Whether to grant or not a permit is not a ministerial duty of the

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