JORGE DELECTOR, PEDRO LADRERA, ALEJANDRO ALDAS, ALEJANDRO AGUADO, AND MIGUEL AGNER, PETITIONERS-APPELLANTS, VS. ANTONIO M. OGAYAN, IN HIS CAPACITY AS MAYOR OF PALO, AND IN HIS P…

This petition for review seeks the reversal of the decision of the Court of First Instance of Leyte
(now Regional Trial Court), dismissing the petition for quo warranto which
prayed for the ouster of respondents as policemen of Palo, Leyte,
and for the petitioners’ reinstatement to the same positions.

At the pre-trial hearing, the parties submitted the case for
decision on the following agreed facts:

“1. That the
petitioners are all duly appointed, have qualified and assumed office as Patrolmen of the Palo Police
Department, Palo, Leyte, with corresponding items in the annual
budget of the municipality and their
appointment duly approved by the Civil Service Commission all having
been appointed on January 4, 1964, except Miguel Agner who was appointed on July 16,
1965.

“2. That
upon dismissal of petitioners from the police force of Palo, Leyte,
on January 1, 1968,
respondent municipal mayor appointed on the same date the other respondents as
special agents of his office force of Palo effective this fiscal year 1968-1969.

“3. That petitioners and
respondents (except respondent municipal mayor) are not civil service eligibles.

“4. That prior to the appointment
by respondent municipal mayor of the other respondents as special agents of his
office, there were no existing posi­tions of special agents in his office and
those positions were created upon his assumption of office as municipal mayor
on January 1, 1968.”

The respondent Judge Jesus N. Borromeo who is now Deputy Minister of Justice
dismissed the peti­tion, stating:

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“Thus, considering the undeniable
fact that they are not civil service
eligibles for the positions of
municipal policemen, there should be no question that the dismissal of
petitioners from the police force of Palo, Leyte, on January 1, 1968, cannot be legally assailable considering the
well-known rule in this jurisdiction that a permanent appointment implies civil
service eligibility, unless, of
course, the position involved requires
no such civil service eligibility (Sique vs. Rabaya, G.R. No. L-11717, Dec.
27, 1958).  x x x”

Petitioners made the following assignment of errors in this
petition:

I

THE TRIAL COURT ERRED IN HOLDING THAT THERE IS NO LAW THAT NO
APPOINTING OFFICIAL CAN REPLACE NON-ELIGIBLES
BY OTHER SET OF NON?ELIGIBLES.

II

THE TRIAL COURT ERRED IN HOLDING THE CIRCULAR REFERRING TO THE
REPLACEMENT OF NON-ELIGIBLES BY THOSE CERTIFIED BY THE CIVIL SERVICE COMMISSION
OF ELIGIBLES AS MERELY DIRECTORY AND HAS NO BINDING FORCE AND LEGAL EFFECT.

III

THE TRIAL COURT ERRED IN NOT DETERMINING WHETHER THE CIRCULAR OF
THE CIVIL SERVICE COMMISSION REGARD­ING REPLACEMENT OF NON-ELIGIBLES IS FAIR,
AND SOUND.

IV

THE TRIAL COURT ERRED IN DISMISSING
THE PETITION.

With regard to the first assignment of error, petitioners contend that they cannot
be replaced by non-eligibles as this is prohibited by Section 23, Article VI of
the Civil Service Law and thus, as provisional appointees, their services cannot be terminated at
will by the appointing officer, except upon
certification of appropriate eligibles by the Civil Service
Commission or by a subsequent appointment
of eligibles to the position.  (Petition, pp. 16-17, Rollo).  Therefore, at least in the interest of public service, the petitioners state that they should be allowed to
stay until eligibles are
available.  (Id., p. 18)

The contention is without merit. 
Petitioners are not provisional appointees.  Section 24(c) of Republic Act No. 2260, the Civil Service Act of 1959 defines a provisional appointment as follows:

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“(c)
Provisional Appointment. – A provisional appointment may be issued upon
the prior authorization of the Commissioner in accordance with
the provisions of this Act and the rules
and standards promulgated in pursuance thereto to a person who has not
qualified in an appropriate examination but who otherwise meets the requirements
for appointment to a regular position in the competitive service, whenever a
vacancy occurs and the filling thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment.”

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There is absolutely no showing that the petitioners possess the
requirements for appointment to a regular
position in the competitive or classified service and that whatever
eligibility they possess is not appopriate for the positions to which
they were appointed.  What the law
considers a provisional appointee is one with a civil
service eligibility but different from that which is appropriate for
the position to which he was appointed. 
Since petitioners did not possess any civil service eligibility, their appointments are considered temporary. 
It is a settled rule that temporary appointees may be terminated
at any time even without cause.  They have no fixed tenure. 
(Abrot v. Court of Appeals, 116 SCRA 468) The Civil Service Commission cannot even legally approve their appointments as provisional as this act would
constitute an unwarranted invasion
of the discretion of the appointing power. 
(Matural v. Maglana, 113 SCRA 268)

This being the law, there is no necessity for us to rule on the other contentions of the
petitioners.

WHEREFORE, the petition is hereby dismissed for lack of
merit, with costs against the petitioners.

SO ORDERED.

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

Vasquez, J., on leave.