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G.R.No.L32271

TodayisThursday,November17,2016

RepublicofthePhilippines
SUPREMECOURT
Manila
FIRSTDIVISION
G.R.No.L32271January27,1983
MARCIALCOSTIN,ESTANISLAOLAJER,LIONELKANENasChiefofPoliceFRANCISCOTISADO,OCT
AVIO
TRAYAasMunicipalMayorDOMINGOIPONGasMunicipalT reasurerandTHEMUNICIP ALCOUNCILOF
ABUYOG,LEYTE,petitioners,
vs.
HONORABLELOPEC.QUIMBO,JudgeoftheCourtofFirstInstanceofLeyte,andHIGINIOVERRA,
respondents.
ZoilaMRedortaandBonifacioM.Batolforpetitioners.
LeonardoL.LeonidsandFranciscoAurilloforprivaterespondent.

GUTIERREZ,JR.,J.:
In this petition for review, the petitioners seek the annulment or reversal of the decision of the Court of First
InstanceofLeyteinCivilCaseNo.3606,entitledHiginioVerra v.MarcialCostinetal.Inthatcaseforawritofquo
warranto withmandamus,the respondent court declared Verra entitled to reinstatement withpayment of salaries
forthewholeperiodfromhisillegalseparationfromtheservicetothedateofhisreinstatement.
PetitionerEstanislaoLajerwasamemberofthemunicipalpoliceforceofAbuyog,LeytesinceJanuary1,1949.He
wasextendedapromotionalappointment assergeant ofpoliceonOctober 15,1958.OnNovember25,1959, the
outgoing municipalmayorofAbuyogaccorded Lajer another promotional appointment aschiefofpolice.Thislast
appointmentwasnotattestedandapprovedasrequiredbylaw .
On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the police
department. On the same day, the municipal mayor extended to responde nt Higinio Verra a permanent
appointment asChiefofPoliceofAbuyogwithasalary ofP2,280.00 per annum.Verra immediatelytookover the
position. Hisappointment waseventually approved as permanent under Section 24 (b) of Republic Act2260 by
theCommissionerofCivilService.
On January 19, 1960, Lajer and the eight membersof the police force filed an action for mandamus(CivilCase
No.2713) against the municipalmayor,municipaltreasurer and the municipalcouncilofAbuyog, contesting their
separationfromtheservice.
While this petition for mandamus was pending, there was again a change in the municipal administration of
Abuyog, Leyte as a result of the 1963 local elections. The newlyelected municipalmayor dismissedrespondent
Verra fromofficeonJanuary16, 1964. Verra wasreplaced byVictoriano Sillezaofficerincharge, onJanuary17,
1964untilOctober ,1964whenpetitionerMarcialCostinwasappointedchiefofpolice.
On December 29, 1964, respondent Verra filed Civil Case No. 3606 for quo warranto with mandamus against
MarcialCostinthemunicipalmayor,andthemunicipaltreasurer,questioning thelegalityofhisseparation alleging
that he could not be dismissedaschief of police because he wasacivilservice eligible and inpossession of an
appointment to the position of chief of police of Abuyog, Leyte duly attested "Permanent" by the Civil Service
Commission.
OnJanuary22,1966,themandamussuit(CivilCaseNo.2713)filedbyLajerandhiscompanions,whichhadbeen
appealed was decided by the Court of Appeals CAG.R. No. 29313R). The appellate court found that Lajer
,Tomines and Jervoso "were illegally removed from office and are, the afore entitled to reinstatement to their
respectivepositionswithpaymentofthesalariestheyfailedoreceive."

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Asaresult ofthe appellate decision, petitioner (then mayor)Tisado reinstated LajeraschiefofpoliceonApril1,

1966.
On July24, 1966, respondent Verra amended hispetition inCivilCase No.3606, impleading Lajer as additional
respondenttherein.
OnNovember7,1968,respondent Verra filedasecond amendedpetition including asrespondents thefollowing:
Octavio Traya, who succeeded Tisado as mayor Lionel Kanen who succeeded Lajer as chief of police Lajer
retired from the service on February 1, 1968) Domingo Ipong whosucceeded Cuyno (deceased) as municipal
treasurerandtheMunicipalCouncilofAbuyog,whichappropriatesfundsfortheof ficeinquestion.
On December 2, 1969, respondent judge rendered his decision in Civil Case No. 3606, declaring that Verra is
entitled toreinstatement withsalary tobepaid tohimfor the Wholeperiod ofhisillegalseparation tothe date of
his reinstatement. The court also ordered the municipal mayor to reinstate Verra immediatelyand the municipal
treasurertopayhissalary .Thisdecisionisnowbeforeusforreview .
Hence,thepresentpetitionwiththefollowingassignmentsoferrors:
I.THATTHEHONORABLECOURTAQUOERREDINDECLARINGTHATTHECOURTOFAPPEALS
IN ITS DECISIONON CIVIL CASE C.A.G.R. NO. 29313R (Civil Case No. 2713), CFI, LEYTE)
ORDERED THE REINSTATEMENT OF PETITIONERESTANISLAOLAJER TO THE POSITIONOF
SERGEANTOFPOLICEOFABUYOG,LEYTEANDNOTTOTHEPOSITIONOFCHIEFOFPOLICE
II.THAT THE HONORABLE COURT A QUO ERRED INNOT DECLARINGTHAT THEREWAS NO
VACANCYINTHEOFFICEOF CHIEFOF POLICEOF ABUYOG,LEYTETO WHICHRESPONDENT
HIGINIOVERRACOULDHA
VEBEENVALIDLYANDEFFECTIVELYAPPOINTED
III.THATTHEHONORABLECOURTAQUOERREDINHOLDINGTHA
TTHEISSUEINVOLVEDINTHIS
CASEISTHELEGALITYOF RESPONDENTHIGINIOVERRASREMOVAL FROM THESERVICEAS
CHIEFOFPOLICEANDNOTTHEVALIDITYOFHISAPPOINTMENTTHERET
O
IV. THAT THE HONORABLECOURT A QUO ERRED IN HOLDINGTHAT THE SEPARATION OF
RESPONDENTHIGINIOVERRAFROMTHEOFFICEOFTHECHIEFOFPOLICEW
ASILLEGAL
V. THAT THE HONORABLECOURT A QUO ERRED IN HOLDINGTHAT RESPONDENTHIGINIO
VERRA NOT BEINGA PARTY INCIVILCASE NO. 2713 CFI LEYTE) FOR MANDAMUS,IS NOT
BOUNDBYITSDECISIONTHEREON
VI.THAT,FINALLY,THEHONORABLECOURTAQUOERREDINORDERINGTHEREINSTATEMENT
OFOFTMENTIONEDHIGINIOVERRAT
OTHEPOSITIONOFCHIEFOFPOLICE.
Theforegoingassignmentsoferrorsmaybenarroweddowntothefollowingissues:
1. Whether or not the appointment of respondent HiginioVerra to the position of Chief of Police of
Abuyog,Leyte,wasvalidandconsequentlyhisremovaltherefromillegal.
2. Whether the Court of Appeals in itsdecision in C.A.G.R. No.29313R (CivilCase No.2713CFI,
Leyte) ordered the reinstatement of petitioner Lajer to the position of Sergeant of Policeor Chief of
Police.
3.WhetherornotrespondentV erraisboundbythedecisionofthelowercourtinCaseNo.2713CFI,
Leyte,formandamus,notbeingapartytoit.
Withrespect to the first issue, the petitioners argue that the appointment issued infavor of respondent Verra as
chiefofpoliceonJanuary14,1960, wasinvalidandineffectivebecause thesaidpositionwasnotvacantfromthe
time Lajer was illegally separated on January 14, 1960, up to the time he was actually reinstated. This is,
according tothepetitioners, premisedonthefactthat theCourt ofAppealsindecidingCivilCaseNo.2713, CFI
Leyte,orderedLajersreinstatementwhichalsolegalizedthedismissalofrespondentV erra.
Respondent Verra on the other hand, contends that the office in question was legally vacant when he was
appointed thereto because Lajers appointment was never attested as required by law or incomplete, and,
therefore, neverbecameeffective.Itisfurther contended thatLajersappointmentaschiefofpolicewastemporary
in character and terminable at the pleasure of the appointing authority and when Lajer wasseparated from the
officeofchiefofpolice,thepositionbecamelegallyandphysicallyvacant.Verra alsoclaimsthatsinceheisacivil
serviceeligibleandhisappointmentaschiefofpolicewasattestedaspermanentunderSection20ofRepublicAct
2260 andserved assuchforfour (4) years andtwo(2) dayswhenhewasdismissedwithoutcause, hisdismissal
isillegal.
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Wefindthepetitionmeritorious.
When respondent Verra wasappointed chief of police on January 14, 1960, Lajer had just been dismissedfrom
officewithseveral other membersofthepoliceforce. The validityofVerras appointment,therefore, hingesonthe
legalityofLajers removal.Itiselementary inthelawofpublicofficersthatnoperson, nomatterhowqualified and
eligibleheisforacertainpositionmaybeappointedtoanof ficewhichisnotvacant.Therecanbenoappointment
toanonvacantposition.Theincumbentmustfirstbelegallyremovedorhisappoint.mentvalidlyterminated.
The lower court's error lies in its looking at the issues primarily from the viewpoint of Verras removal, his
qualifications and eligibility for the position, and whether or not his dismissalwasvalid. Inthe process, the lower
court overlooked the fact that Verra could not have been permanently appointed to the contested position
because no less than the Court of Appeals had declared that his predecessor, Estanislao Lajer was illegally
terminatedfromofficeandmustbereinstatedtohisformerposition.
RespondentVerraarguesthatLajersappointmentaschiefofpolicewastemporaryandterminableatthepleasure
oftheappointingpower .
The private respondent iscorrect inasserting thatwhenthepromotional appointmentofLajer wasmadein1959,
itcouldnotbe considered final or complete. UnderSection 2(a) of Rule VI,the CivilService Rules implementing
Section16(g) ofRepublicAct2260, anappointment extendedbyanofficerdulyempoweredtomakeitisnotfinal
and complete until after the Commissioner of CivilService has certified that suchan appointment maybe made.
(Gorospev.SecretaryofPublicWorksandCommunicationsetal. 105Phil.129L)
ItislikewisetruethatunderSection20ofRepublicAct2260which,inpart,provides:
SEC. 20. Delegation in the CivilService Commissionand to the Agencies. ... Appointments by ...
municipal mayors shall become effective upon issuance of such appointments and upon attestation
by the provincial treasurer in the case of appointments made by ... municipal mayors ... . All
appointments made by the ... municipal mayors ... shall, after being attested to by the respective
provincial treasurer ... be forwarded withinten days to the Commissionerof CivilService for review
pursuant to Civil Service law and rules. If within one hundred eighty days after receipt of said
appointments, theCommissionerofCivilServiceshallnothavemadeanycorrectionorrevision, then
suchappointmentsshallbedeemedtohavebeenproperlymade....
the attestation by the provincial treasurer of Leyte wasnecessary to make the appointment of petitioner Lajer
effective.* However, these requirements could not be complied withbecause Lajer whohad been appointed on
November25,1959 wasreplaced onJanuary14,1960 bythenewmayorofthemunicipalitywhoappointed Verra
in his stead As pointed out in Dichoso v. Valdepenas (5 SCRA 1069, 1076), the incoming mayor should have
awaitedthe action of the provincial treasurer and later, the Commissionerof CivilService, before appointing his
ownprotege to a position withan incumbent occupying it. Respondent Verra cannot rely on the absence of an
attestation fromthe provincial treasurer and a certification fromthe CivilServiceCommissionerinsofar as Lajers
appointment is concerned because by the fact of Verras appointment, these requirements could no longer be
fulfilled. MayorOctavio Traya took the appointments awayfromthe officeofthe ProvincialTreasurer before they
couldbeactedupon.TheCommissionercouldnolongeractwithin180days.
The insuperable factor, however, whichstands in the wayof Verras reinstatement withbackwages for eighteen
(18) yearsfrom1964 to the present isthe Court of Appeals decision inLajer et al. v.Traya et al. (CA G.R. No.
29313R, January 22, 1966). The Court of Appeals was presented squarely with the issue of whether or not
EstanislaoLajerandsevenotherpetitionerswereillegallyseparated fromtheservicebyMayorOctavioTrayaIna
decision penned by Justice Salvador V. Esguerra, concurred in by Presiding Justice Conrado V. Sanchez and
Justice Magno S. Gatmaitan, the First Division of the Court of Appeals ruled that Estanislao Lajer Mariano
Tomines,andMelecioJervosowereillegallyremovedfromof ficeandmustbereinstated.
Respondent's Verra nowcontends that Lajer wasordered reinstated to the position of sergeant and not chief of
police.Mr.VerracannotreadintoaCourtofAppealsdecisionsomethingwhichisnotthere.
Mr. Lajer did not go to court to contest the position of police sergeant or to question his removal as police
sergeant, Hewasnever removed fromaposition assergeant ofpolice, Lajer filedapetition for mandamustobe
reinstated aschiefofpolice.The January30,1961 decisionofJudgeS.C.MoscosooftileCourtofFirstInstance
of Leyte discusses an appointment as chief of police. When the decision ordering Lajers reinstatement, was
appealed totheCourtofAppeals,theappellate court specificallydescribed petitioner Lajer aschiefofpoliceand
petitioner Mariano Tomines as police sergeant. When Lajer and Tontines wereordered reinstated, it wasto the
saidpositionsaschiefofpoliceandpolicesergeantrespectively .
The argument of respondent, Verra that Mayor Tisado should have refrained from reinstating Lajer as chief of
police notwithstanding the decision of the Court of Appeals because he, Verra had filed acase withthe Court of
FirstInstancecontesting thesamepositionbetrays alackofunderstanding ofafinalandexecutorydecisionofan
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appellate tribunal. The decision ofthe Court ofAppealssuperseded anydecision that the Court ofFirst Instance
ortheCivilServiceCommissionercouldhaverendered onthesameissueandthesamefacts.Itwaspreciselythe
terminationofLajerspromotionalappointmentaschiefofpolicewhichtheappellate courtstruckdown.SinceLajer
wasnotvalidlyterminated frompublicofficeand, asamatteroffact,wasordered reinstated through awarrantof
mandamus,itfollowsthatthere wasnovacancyintheofficeofchiefofpoliceonJanuary14,1960 andthere was
no office to whichHiginioVerra could have been appointed. The discussions in the decision of the respondent
judge onwhetherornot HiginioVera wasvalidlyremoved fromofficeare allbeside the point. Neverhaving been
validly appointed, there wasno office from whichhe wasillegally dismissed. At most, he wasa de facto officer
during theyearswhenLajerwaslitigatinghisactionforreinstatement inthecourtoffirstinstanceandinthecourt
ofappeals. Andasearlier stated, the certification bythe CommissionerofCivilServicethat Mr.Verra possessed
the qualifications and the eligibility,doubtfulthough the latter maybe, for the position ofchief ofpolice could not
have made the proceedings. in court moot and academic much less rendered inutile the 1966 decision of the
CourtofAppealsgrantingthepetitionforawritofmandamusinLajersfavor .
Moreover,theequities ofthecasedonotleantowardsrespondent Verra EstanislaoLajer hadbeen amemberof
the Abuyog police force since January 1, 1949. Hehad passed the patrolman's examination, waspromoted to
corporal, later to sergeant, and finally to chief of police in his tenth year of service. On the other hand, Higinio
Verra was a school teacher with apparently no police experience whatsoever when he was appointed chief of
policeonJanuary14,1960.Itistoolateinthedaynowtodebatethecorrectness oftheCourtofAppealsdecision
that non attestation was not sufficient cause for outright removal. The decision has long been final and was
implementedin1966.There issimilarlynopointinresolvingtheissueastowhohasbetterqualificationsandmore
nearly appropriate eligibility for the position of chief of police a police sergean t withten years experience and
patrolman'seligibilityoraschoolteacherwithaseniorteacher'seligibility .
Verra asks ifhe should be bound by the decision of the Court of Appeals, not having been a party to the case.
The issue before the Court of First Instance and the Court of Appeals waswhether or not the Mayor, Municipal
council, Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally terminated the chief of police.
sergeant of police, and sixother members of the, police force from their respective offices and whether or lot
mandamus may issue to compel their reinstatement. mandamus having issued, any person whether Mr. Higinio
Verra or anyother appointee tothe contested position mustgiveupthe officeinfavor ofthe officer adjudged by
thecourtstobeentitledtoit.
WHEREFORE,theinstantpetition isherebygranted. The decisionoftherespondent court inCivilCaseNo.3606
is reversed and set aside and the petition for quo warranto withmandamus filed in the court a quo is ordered
dismissed.
SOORDERED.
Teehankee(Chairman),MelencioHerrera,Plana,V asquezandRelova,JJ.,concur .

Footnotes
*RepublicAct6040,increatingregionalof ficesoftheCivilServiceCommission,removedthe
authoritytoattestorapproveappointmentsvesteduponprovincialorcitytreasurers.Under
PresidentialDecreeNo.807,Section8(h)"(a)nappointmentshalltakeef fectimmediatelyuponissue
bytheappointingauthorityiftheappointeeassumeshisdutiesimmediatelyandshagremainef fective
untilitisdisapprovedbytheCommission...
TheLawphilProjectArellanoLawFoundation

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