Costin vs. Quimbo

No person, however qualified and eligible, may be appointed to a public office that is not vacant; the incumbent must first be legally removed or his appointment validly terminated, and an appointment extended to a non-vacant office is void. Consequently, one who accepts such an appointment acquires no right to the office and cannot claim reinstatement or back salaries once the lawful incumbent is judicially declared entitled to it.

The controversy concerns the office of chief of police of Abuyog, Leyte. Estanislao Lajer had served in the Abuyog municipal police force since January 1, 1949, while Higinio Verra was a school teacher with no police experience. Appointments by municipal mayors to positions in the civil service were governed by Republic Act No. 2260, which conditioned the effectiveness and finality of such appointments on attestation by the provincial treasurer and review by the Commissioner of Civil Service, and by the implementing Civil Service Rules, which withheld finality until the Commissioner certified that the appointment could be made.

Estanislao Lajer had been a member of the municipal police force of Abuyog, Leyte since January 1, 1949. He was extended a promotional appointment as sergeant of police on October 15, 1958, and on November 25, 1959, the outgoing municipal mayor accorded him another promotional appointment as chief of police. That last appointment was not attested and approved as required by law.

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 Higinio Verra a permanent appointment as Chief of Police of Abuyog with a salary of P2,280.00 per annum. Verra immediately took over the position, and his appointment was eventually approved as permanent under Section 24(b) of Republic Act No. 2260 by the Commissioner of Civil Service. Five days later, on January 19, 1960, Lajer and the eight members of the police force filed an action for mandamus (Civil Case No. 2713) against the municipal mayor, municipal treasurer, and the municipal council of Abuyog, contesting their separation from the service.

While that mandamus petition was pending, a change in the municipal administration of Abuyog followed the 1963 local elections. The newly elected municipal mayor dismissed Verra from office on January 16, 1964. Verra was replaced by Victoriano Silleza as officer-in-charge on January 17, 1964 until October 1964, when Marcial Costin was appointed chief of police. On December 29, 1964, Verra filed Civil Case No. 3606 for quo warranto with mandamus against Costin, the municipal mayor, and the municipal treasurer, questioning the legality of his separation and alleging that he could not be dismissed as chief of police because he was a civil service eligible and in possession of an appointment to the position duly attested "Permanent" by the Civil Service Commission.

On January 22, 1966, the mandamus suit filed by Lajer and his companions, which had been appealed, was decided by the Court of Appeals in CA-G.R. No. 29313-R. The appellate court found that Lajer, Tomines, and Jervoso were illegally removed from office and were entitled to reinstatement to their respective positions with payment of the salaries they failed to receive. As a result of that decision, then mayor Tisado reinstated Lajer as chief of police on April 1, 1966. Verra thereafter amended his petition in Civil Case No. 3606 on July 24, 1966 to implead Lajer as an additional respondent, and on November 7, 1968 filed a second amended petition adding Traya, Kanen, Ipong, and the Municipal Council of Abuyog, the latter being the body that appropriates funds for the office in question.

The Court of Appeals, in its January 22, 1966 decision, found as a fact that Lajer, Tomines, and Jervoso had been illegally removed from office and were entitled to reinstatement with back salaries, and it described Lajer specifically as chief of police and Tomines as police sergeant. The Court of First Instance of Leyte, in its December 2, 1969 decision in Civil Case No. 3606, found that Verra held a permanent appointment attested by the Civil Service Commission and had served as chief of police for four years and two days before his dismissal without cause.

• Validity of Verra's Appointment: Petitioners argued that the appointment issued in favor of respondent Verra as chief of police on January 14, 1960 was invalid and ineffective because the position was not vacant from the time Lajer was illegally separated on January 14, 1960 up to the time he was actually reinstated.
• Effect of the Appellate Decision: Petitioners maintained that the premise of their position was the decision of the Court of Appeals in Civil Case No. 2713, which ordered Lajer's reinstatement and thereby legalized the dismissal of respondent Verra.
• Scope of the Reinstatement Order: Petitioners contended that the court a quo erred in declaring that the Court of Appeals in CA-G.R. No. 29313-R ordered the reinstatement of Lajer to the position of Sergeant of Police and not to the position of Chief of Police.
• Absence of a Vacancy: Petitioners asserted that the court a quo erred in not declaring that there was no vacancy in the office of chief of police of Abuyog, Leyte to which respondent Verra could have been validly and effectively appointed.
• Illegality of Verra's Separation: Petitioners argued that the court a quo erred in holding that the separation of respondent Verra from the office of chief of police was illegal and in ordering his reinstatement to that position.
• Binding Effect of the Mandamus Decision: Petitioners argued that the court a quo erred in holding that respondent Verra, not being a party in Civil Case No. 2713 for mandamus, is not bound by its decision.

• Vacancy of the Office: Respondent Verra contended that the office in question was legally vacant when he was appointed thereto because Lajer's appointment was never attested as required by law and, therefore, never became effective.
• Nature of Lajer's Appointment: Respondent maintained that Lajer's appointment as chief of police was temporary in character and terminable at the pleasure of the appointing authority, and that when Lajer was separated from the office, the position became legally and physically vacant.
• Legality of His Own Dismissal: Respondent claimed that since he is a civil service eligible and his appointment as chief of police was attested as permanent under Section 20 of Republic Act No. 2260, and he served as such for four years and two days before being dismissed without cause, his dismissal was illegal.
• Scope of the Reinstatement Order: Respondent contended that Lajer was ordered reinstated to the position of sergeant and not chief of police.

• Validity of Verra's Appointment: Whether the appointment of respondent Higinio Verra to the position of Chief of Police of Abuyog, Leyte was valid and, consequently, whether his removal therefrom was illegal.
• Scope of the Court of Appeals Reinstatement Order: Whether the Court of Appeals in its decision in CA-G.R. No. 29313-R (Civil Case No. 2713, CFI Leyte) ordered the reinstatement of petitioner Lajer to the position of Sergeant of Police or Chief of Police.
• Binding Effect of the Mandamus Decision: Whether respondent Verra is bound by the decision of the lower court in Civil Case No. 2713 for mandamus, not being a party to it.

• Validity of Verra's Appointment: No. The appointment was invalid because the office of chief of police was not vacant, Lajer having been declared illegally removed and ordered reinstated; there can be no appointment to a non-vacant position.
• Scope of the Court of Appeals Reinstatement Order: Chief of Police. The Court of Appeals specifically described Lajer as chief of police and Tomines as police sergeant, and ordered their reinstatement to those respective positions.
• Binding Effect of the Mandamus Decision: Yes. A final and executory appellate decision supersedes any ruling the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and facts, and any appointee to the contested office must yield it to the officer adjudged entitled.

• Validity of Verra's Appointment: The validity of Verra's appointment hinges on the legality of Lajer's removal, because it is elementary in the law of public officers that no person, no matter how qualified and eligible, may be appointed to an office which is not vacant; the incumbent must first be legally removed or his appointment validly terminated. Lajer's promotional appointment as chief of police on November 25, 1959 was not final or complete, since under Section 2(a) of Rule VI of the Civil Service Rules implementing Section 16(g) of Republic Act No. 2260, an appointment extended by an officer duly empowered to make it is not final and complete until the Commissioner of Civil Service has certified that the appointment may be made, as held in Gorospe vs. Secretary of Public Works and Communications. Under Section 20 of Republic Act No. 2260, attestation by the provincial treasurer of Leyte was likewise necessary to make Lajer's appointment effective. These requirements, however, could not be complied with because Lajer, appointed on November 25, 1959, was replaced on January 14, 1960 by the new mayor, who appointed Verra in his stead. As held in Dichoso vs. Valdepenas, the incoming mayor should have awaited the action of the provincial treasurer and later the Commissioner of Civil Service before appointing his own protege to a position with an incumbent occupying it. Verra cannot rely on the absence of attestation and certification because, by the fact of his own appointment, those requirements could no longer be fulfilled; the mayor took the appointments away from the office of the Provincial Treasurer before they could be acted upon, and the Commissioner could no longer act within 180 days. The trial court erred in examining the controversy primarily from the viewpoint of Verra's removal, his qualifications and eligibility, and the validity of his dismissal, overlooking that no less than the Court of Appeals had declared Lajer illegally terminated and entitled to reinstatement. Since Lajer was not validly terminated and was in fact ordered reinstated through a warrant of mandamus, there was no vacancy in the office of chief of police on January 14, 1960 and no office to which Verra could have been appointed. Never having been validly appointed, there was no office from which he was illegally dismissed; at most he was a de facto officer during the years Lajer was litigating his action. The certification by the Commissioner of Civil Service that Verra possessed the qualifications and eligibility for the position could not render the proceedings moot or render inutile the 1966 decision of the Court of Appeals granting mandamus in Lajer's favor. The equities likewise do not lean toward Verra: Lajer had been a member of the Abuyog police force since January 1, 1949, had passed the patrolman's examination, and had been promoted to corporal, then sergeant, and finally chief of police in his tenth year of service, whereas Verra was a school teacher with apparently no police experience whatsoever when appointed chief of police on January 14, 1960. It is too late in the day to debate the correctness of the Court of Appeals decision that non-attestation was not sufficient cause for outright removal, that decision having long been final and implemented in 1966.
• Scope of the Court of Appeals Reinstatement Order: Verra cannot read into the Court of Appeals decision something which is not there. Lajer did not go to court to contest the position of police sergeant or to question his removal as police sergeant; he was never removed from a position as sergeant of police. Lajer filed a petition for mandamus to be reinstated as chief of police. The January 30, 1961 decision of Judge S. C. Moscoso of the Court of First Instance of Leyte discussed an appointment as chief of police. When the decision ordering Lajer's reinstatement was appealed to the Court of Appeals, the appellate court specifically described petitioner Lajer as chief of police and petitioner Mariano Tomines as police sergeant, and when Lajer and Tomines were ordered reinstated, it was to those positions respectively. Verra's argument that Mayor Tisado should have refrained from reinstating Lajer as chief of police notwithstanding the appellate decision, because Verra had filed a case with the Court of First Instance contesting the same position, betrays a lack of understanding of a final and executory decision of an appellate tribunal. The decision of the Court of Appeals superseded any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and the same facts, and it was precisely the termination of Lajer's promotional appointment as chief of police which the appellate court struck down.
• Binding Effect of the Mandamus Decision: The issue before the Court of First Instance and the Court of Appeals was whether the Mayor, Municipal Council, Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally terminated the chief of police, sergeant of police, and six other members of the police force from their respective offices, and whether mandamus may issue to compel their reinstatement. Mandamus having issued, any person, whether Higinio Verra or any other appointee to the contested position, must give up the office in favor of the officer adjudged by the courts to be entitled to it. The insuperable factor standing in the way of Verra's reinstatement with backwages for eighteen years from 1964 to the present is the Court of Appeals decision in Lajer et al. vs. Traya et al. (CA-G.R. No. 29313-R, January 22, 1966), which was rendered by the First Division, penned by Justice Salvador V. Esguerra and concurred in by Presiding Justice Conrado V. Sanchez and Justice Magno S. Gatmaitan, and which squarely ruled that Lajer, Tomines, and Jervoso were illegally removed from office and must be reinstated.

• No Appointment to a Non-Vacant Office — It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position, may be appointed to an office which is not vacant; there can be no appointment to a non-vacant position, and the incumbent must first be legally removed or his appointment validly terminated. The Court applied this rule to void Verra's appointment, holding that because Lajer had been judicially declared illegally removed and ordered reinstated, the office of chief of police was never vacant on January 14, 1960, and there was no office to which Verra could have been appointed.
• De Facto Officer — One who occupies a public office under an invalid appointment, while the lawful incumbent litigates his right to the position, is at most a de facto officer and acquires no right to reinstatement or back salaries once the lawful incumbent is adjudged entitled to the office. The Court characterized Verra as a de facto officer during the years Lajer was litigating his action for reinstatement.
• Finality and Superseding Effect of an Appellate Decision — A final and executory decision of the Court of Appeals supersedes any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and the same facts. The Court held that the appellate decision striking down the termination of Lajer's promotional appointment as chief of police foreclosed any contrary ruling on the same issue.
• Judgment in Mandamus Binds Subsequent Appointees — Where mandamus issues compelling the reinstatement of an officer adjudged entitled to a public office, any person, whether the appointee named in the case or any other appointee to the contested position, must give up the office in favor of the officer adjudged by the courts to be entitled to it, notwithstanding that the appointee was not a party to the mandamus proceeding.
• Finality of Civil Service Appointments — Under Section 2(a) of Rule VI of the Civil Service Rules implementing Section 16(g) of Republic Act No. 2260, an appointment extended by an officer duly empowered to make it is not final and complete until the Commissioner of Civil Service has certified that such appointment may be made; and under Section 20 of Republic Act No. 2260, appointments by municipal mayors become effective upon issuance and upon attestation by the provincial treasurer, and are deemed properly made if the Commissioner makes no correction or revision within 180 days. The Court held that these requirements could not be invoked against Lajer because the appointing mayor's own precipitate appointment of Verra prevented their fulfillment.
• Duty of an Incoming Appointing Authority — An incoming mayor should await the action of the provincial treasurer and, later, of the Commissioner of Civil Service before appointing his own protege to a position already occupied by an incumbent, as held in Dichoso vs. Valdepenas. The Court applied this rule to reject Verra's reliance on the absence of attestation and certification of Lajer's appointment.

• "It is elementary in the law of public officers that no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appoint. ment validly terminated." — This passage states the ratio decidendi of the decision and supplies the canonical formulation of the rule that voids appointments to non-vacant public offices.
• "The decision of the Court of Appeals superseded any decision that the Court of First Instance or the Civil Service Commissioner could have rendered on the same issue and the same facts." — This passage establishes the preclusive effect of the final appellate judgment over the contrary rulings of the trial court and the Civil Service Commissioner on the same controversy.
• "mandamus having issued, any person whether Mr. Higinio Verra or any other appointee to the contested position must give up the office in favor of the officer adjudged by the courts to be entitled to it." — This passage defines the reach of a writ of mandamus reinstating a public officer and explains why Verra, though not a party to the earlier case, was bound by its result.
• "the incoming mayor should have awaited the action of the provincial treasurer and later, the Commissioner of Civil Service, before appointing his own protege to a position with an incumbent occupying it." — This passage, drawn from Dichoso vs. Valdepenas, states the standard of conduct required of an incoming appointing authority and disposes of Verra's reliance on the defective attestation of Lajer's appointment.

• Gorospe vs. Secretary of Public Works and Communications, 105 Phil. 129 — Cited as controlling authority for the rule that an appointment extended by an officer duly empowered to make it is not final and complete until the Commissioner of Civil Service has certified that such appointment may be made; applied to hold that Lajer's promotional appointment as chief of police never became final.
• Dichoso vs. Valdepenas, 5 SCRA 1069, 1076 — Cited and followed for the rule that the incoming mayor should have awaited the action of the provincial treasurer and later the Commissioner of Civil Service before appointing his own protege to a position with an incumbent occupying it; applied to bar Verra from relying on the absence of attestation and certification of Lajer's appointment.
• Lajer et al. vs. Traya et al., CA-G.R. No. 29313-R, January 22, 1966 — The Court of Appeals decision holding that Lajer, Tomines, and Jervoso were illegally removed from office and entitled to reinstatement with payment of salaries; treated by the Supreme Court as the final and executory adjudication that foreclosed Verra's claim and constituted the insuperable factor against his reinstatement with backwages.

• Section 20, Republic Act No. 2260 — Provides that appointments by municipal mayors become effective upon issuance and upon attestation by the provincial treasurer, that such appointments shall be forwarded within ten days to the Commissioner of Civil Service for review, and that if the Commissioner makes no correction or revision within one hundred eighty days, the appointments are deemed properly made. Applied to hold that attestation by the provincial treasurer of Leyte was necessary to make Lajer's appointment effective, but that these requirements could not be complied with because Lajer was replaced on January 14, 1960 by the new mayor, who appointed Verra in his stead, and the Commissioner could no longer act within 180 days.
• Section 24(b), Republic Act No. 2260 — Cited as the provision under which Verra's appointment as chief of police was eventually approved as permanent by the Commissioner of Civil Service; the Court held that this approval could not cure the absence of a vacancy or render moot the appellate decision in Lajer's favor.
• Section 16(g), Republic Act No. 2260, and Section 2(a), Rule VI, Civil Service Rules — Provide that an appointment extended by an officer duly empowered to make it is not final and complete until the Commissioner of Civil Service has certified that such appointment may be made. Applied to hold that Lajer's November 25, 1959 promotional appointment as chief of police was neither final nor complete.
• Republic Act No. 6040 (footnote) — Noted as having removed, in creating regional offices of the Civil Service Commission, the authority to attest or approve appointments vested upon provincial or city treasurers.
• Section 8(h), Presidential Decree No. 807 (footnote) — Noted as providing that an appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately, and shall remain effective until disapproved by the Commission.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez, and Relova, JJ.