THIRD DIVISION

[G.R. No. 138238. September 2, 2003.]

EDUARDO BALITAOSAN , petitioner, vs . THE SECRETARY OF

Froilan M Bacungan & Associates for petitioner.

SYNOPSIS

Petitioner was among the public school teachers who were dismissed by the
Secretary of the Department of Education Culture and Sports for ignoring the return to
work order while participating in a teacher's mass strike. Petitioner appealed to the Merit
System Protection Board, but the appeal was dismissed. Aggrieved, petitioner appealed to
the Civil Service Commission, but the appeal and the subsequent motion for
reconsideration were both denied. Petitioner then sought recourse from the Court of
Appeals (CA) via a petition for certiorari which yielded positive results, obtaining for
petitioner an order for reinstatement without, however, any award of backwages in his
favor. Petitioner moved for partial reconsideration praying for an award of backwages, but
the same was denied. Hence, this petition.
In denying the petition, the Supreme Court ruled that aside from the allegation of
denial of due process, petitioner never questioned the competence and composition of the
investigating committee. He belatedly raised this issue for the rst time in the petition for
review before the CA. Thus, the appellate court acted correctly in rejecting petitioner's
argument. Issues raised for the rst time on appeal cannot be considered because a party
is not permitted to change his theory on appeal. To allow him to do so is unfair to the other
party and offensive to the rules of fair play, justice and due process. TcSaHC

The Court further ruled that the reinstatement of petitioner was not the result of
exoneration but an act of liberality by the CA. Accordingly, petitioner's claim for backwages
for the period during which he was not allowed to work must be denied. Moreover, since
petitioner did not render any service during the period for which he is now claiming his
salaries, there is no legal basis to order the payment thereof. cDICaS

SYLLABUS

1. REMEDIAL LAW; ACTIONS; APPEALS; ISSUES RAISED FOR THE FIRST TIME
ON APPEAL CANNOT BE CONSIDERED.— Issues raised for the rst time on appeal cannot
be considered because a party is not permitted to change his theory on appeal. To allow
him to do so is unfair to the other party and offensive to the rules of fair play, justice and
due process.
2. POLITICAL LAW; ADMINISTRATIVE LAW; PUBLIC OFFICERS AND
EMPLOYEES; NOT ENTITLED TO ANY COMPENSATION IF NO SERVICE HAS BEEN
RENDERED; CASE AT BAR.— The general rule is that a public o cial is not entitled to any
compensation if he has not rendered any service. No work, no pay. Since petitioner did not
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 render any service during the period for which he is now claiming his salaries, there is no
legal or equitable basis to order the payment thereof. DHaECI

DECISION

CORONA , J : p

Before us is a petition for review of the April 15, 1999 resolution 1 of the Court of
Appeals denying petitioner's motion for partial reconsideration of its decision dated
November 9, 1998 which ordered petitioner's reinstatement, without backwages.
Petitioner was among the public school teachers who were dismissed by then DECS
Secretary Isidro Cariño for ignoring the return to work order while participating in the
teacher's mass strike at Liwasang Bonifacio from September to October, 1990.
Records reveal that an administrative complaint was led against petitioner,
together with a certain Dalangin Sarmiento and Filomeno Rafer, charging them with grave
misconduct, gross neglect of duty, gross violation of the Civil Service Law and Rules of
Reasonable O ce Regulations, refusal to perform o cial duty, gross insubordination,
conduct prejudicial to the best interests of the service and absence without leave.
Petitioner failed to give his explanation on the charges against him despite due
notice. Thus, he was meted preventive suspension for 90 days and consequently
dismissed from the service in a DECS decision dated November 29, 1990.
Petitioner appealed said decision to the Merit System Protection Board but his
appeal was dismissed for being filed out of time.
Aggrieved, petitioner appealed to the Civil Service Commission but the appeal and
the subsequent motion for reconsideration were both denied in the resolutions dated
September 8, 1994 and April 14, 1998, respectively.
Petitioner then sought recourse from the Court of Appeals via a petition for
certiorari which yielded positive results, obtaining for petitioner an order of reinstatement
without, however, any award of backwages in his favor. Thus:
WHEREFORE, the petition is hereby given DUE COURSE. Resolution Nos.
94-4979 and 980819 of the Civil Service Commission are SET ASIDE. Accordingly,
the Department of Education, Culture and Sports' Decision in Case No. DECS 90-
118 is MODIFIED — instead the petitioner is only guilty of Conduct Prejudicial to
the Best Interest of the Service for which he is meted out the penalty of
suspension from the service for a period of six (6) months without pay
considering that the petitioner has been out of the service for more than seven (7)
years now as a result of his dismissal from the service, the Department of
Education, Culture and Sports is hereby ORDERED to immediately reinstate
petitioner Eduardo Balitaosan.

SO ORDERED. 2

Not wholly satis ed with said decision, petitioner moved for its partial
reconsideration, praying for an award of backwages, but the same was denied in the above
assailed resolution dated April 15, 1999.
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 Thus, the instant petition.
Petitioner alleges that the Court of Appeals committed reversible error when it
refused to apply the ruling in the case of Fabella, et al. vs. Court of Appeals, et al. 3 In the
said case, the Court, nding the investigation committee to be without competent
jurisdiction, declared that all proceedings undertaken were necessarily void and thus could
not provide the legal basis for the suspension or dismissal of the petitioners. The Court
declared a denial of due process because the inclusion of a representative of a teacher's
organization in the investigating committee, which was indispensable to ensure an
impartial tribunal, was not complied with. Consequently, it ordered the payment of back
salaries, allowances, bonuses and other bene ts and emoluments which had accrued to
the teachers involved during the entire period of their preventive suspension and/or
dismissal from the service.
Petitioner's reliance on Fabella is totally misplaced.
As aptly observed by the Court of Appeals, in Fabella, the jurisdiction and
composition of the investigation committee was put in issue from the very start. When the
Court found the investigation committee to be without competent jurisdiction, it declared
all the proceedings undertaken by said committee void; therefore, it could not have
provided the legal basis for the suspension and dismissal of private respondents therein.
In the case at bar, however, aside from the catch-all and sweeping allegation of
"denial of due process," petitioner never questioned the competence and composition of
the investigating committee. He belatedly raised this issue for the rst time in the petition
for review before the Court of Appeals. Thus, the appellate court acted correctly in
rejecting petitioner's argument.
Issues raised for the rst time on appeal cannot be considered because a party is
not permitted to change his theory on appeal. To allow him to do so is unfair to the other
party and offensive to the rules of fair play, justice and due process. 4
In its Decision, the Court of Appeals justified petitioner's reinstatement:
While We view with approbation the authority of the Department of
Education, Culture and Sports to punish the public school teachers for engaging
in the prohibited action, that is, staging and joining the strike, We, particularly, take
note here the seemingly compartmentalized treatment the petitioner suffered
from the respondent Civil Service Commission. As petitioner's appeal to the Merit
Systems Protection Board of the Civil Service Commission was rebuffed for
having been led out of time and eventually dismissed petitioner, that of
Filomeno Rafer's, after ling a third motion for reconsideration from the
resolution of the respondent commission dismissing him from the service,
decided Rafer's case on the merits and reduced his penalty from dismissal from
the service to suspension for six (6) months (Rollo, p. 29). We are bewildered
actually, as Our assessment is that the petitioner and Rafer are similarly situated,
why the respondent Commission failed to give the same cordiality given to Rafer.
Not only that, in several cases involving public school teachers, the respondent
Commission modi ed the penalty of dismissal from the service to a mere
reprimand (Alipat vs. Civil Service Commission, CA-G.R. SP No. 38312). 5

The fact is that petitioner participated in the mass action which in turn resulted in
the ling of charges against him and his subsequent dismissal later on. His reinstatement
was not the result of exoneration but an act of liberality by the Court of Appeals.
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 Accordingly, petitioner's claim for backwages for the period during which he was not
allowed to work must be denied.
The general rule is that a public o cial is not entitled to any compensation if he has
not rendered any service. No work, no pay. Since petitioner did not render any service
during the period for which he is now claiming his salaries, there is no legal or equitable
basis to order the payment thereof. 6
WHEREFORE, the petition is hereby DENIED. The Resolution of the Court of Appeals
dated April 15, 1999 denying petitioner's claim for backwages is AFFIRMED. HDAaIS

SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez and Carpio Morales, JJ., concur.

Footnotes

1. Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate

2. Rollo, pp. 37-38.

4. Cruz vs. Court of Appeals, 233 SCRA 301 [1994].

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