G.R. No. L-26600. May 29, 1970
EMILIANO PIELAGO, ET AL., PETITIONERS, EMILIANO PIELAGO, PETITIONER-APPELLANT, VS. RECAREDO ECHAVEZ, ET AL., RESPONDENTS-APPELLEES.
TEEHANKEE, J.:
Appeal from a decision of the Court of First Instance of Cebu
dismissing petitioner’s action for mandamus and certified by the Court
of Appeals to this Court as involving purely a question of law.
The Court of Appeals, in its certification resolution, gives the
following background facts: “(O)riginally, there were four petitioners in
this action for mandamus. But
only Emiliano Pielago now remains as the lone petitioner-appellant.
“Pielago was designated as member of the municipal police of
Aloguinsan, Cebu, on December 1, 1952 by former Municipal Mayor Araceli
Gantuangco.
“On January 15, 1960, Pielago, together with others, was
dismissed from the service by respondent Municipal Mayor Recaredo Echavez, who
succeeded Gantuangco as Mayor, by means of a letter of termination tendered to
petitioner which reads:
‘This is to inform you that your designation as municipal policeman
for Aloguinsan, Cebu, will be
terminated at the close of office hours on January 15, 1960, you not being a
civil service eligible and it not being my desire to renew your appointment.
Very
truly yours,
(Sgd.) RECAREDO
ECHAVEZ
Municipal Mayor’
“Together with the original three petitioners, Emiliano
Pielago, filed an action for mandamus with the Court of First Instance of Cebu against respondents
Mayor Echavez, the Municipal Treasurer, in their official capacity, the Municipal Council, and the Municipality of Aloguinsan, Cebu, wherein he
sought judgment declaring his removal illegal.
He asked that he be reinstated
to his former position as policeman, the necessary appropriation for the purpose
be made, his salaries paid, and that he
be awarded moral and exemplary damages as well as attorney’s fees, expenses of litigation, with costs against respondents.
“The Court of First Instance of Cebu dismissed the
petition. The petitioner took the case
to us on appeal.
“The petitioner is admittedly not a civil service
eligible. But he took the qualifying
patrolman examination given by the Civil Service Commission on February 27,
1960. He obtained a rating of
62.7%.” (This was considerably
short of the passing grade of 70%.
Petitioner testified that he filed a petition for recorrection and
reconsideration with the Civil Service Commission, but admits that up to the
time of the filing of his brief on appeal more than three and a half years
later, he had not received any reply from
the said office.[1]
The stipulation of facts submitted to the trial court by the
parties and the additional testimonial evidence of petitioner and of respondent mayor as set forth in the
judgment appealed from furnish us the following additional relevant facts:
Soon after the filing of petitioner’s action in March 1960, the
trial court directed the dismissal of the case insofar as co-petioners Tomas
Dayanan and Cirilo Arante were concerned on the ground that respondent mayor
had reinstated them to their positions of municipal policemen. From the unrefuted testimony of respondent mayor as reproduced in the trial
court’s decision, when he could not find enough civil service eligibles as
replacements for the original four petitioners, he had the Chief of Police ask
them if they wished to be reinstated; Dayanan and Arante accepted the
reinstatement (the latter subsequently passed the qualifying examination); but
petitioner refused the offer, because he preferred to continue with the present
suit. The third co-petitioner, Telesforo Baritua, withdrew his suit, because he
was moving out to settle in Palompon, Leyte.
At any rate, respondent mayor grounded his main defense to the
action on the fact that petitioner’s service was inefficient and
unsatisfactory, petitioner having been administratively charged and found
guilty in 1958 of infidelity in the custody of a prisoner and petitioner could
not therefore invoke the protective mantle of section 23 of the then newly
enacted Civil Service Act of 1959 (Republic Act 2260).
The question of law certified by the appellate court is “whether
or not the removal is illegal under these circumstances.” Petitioner’s lone assignment of error is of the
same tenor, to wit, that the trial court “erred in holding that the
dismissal of the petitioner from his position as municipal policeman is legal
and justifiable and in consequently dismissing the petition.”
The crux of the question depends for resolution upon the proper interpretation of the protective clause
for non-eligibles in the fourth paragraph of section 23 of the Civil Service
Act enacted on June 19, 1959 that:
“‘Qualification in an appropriate examination shall be required for appointment to positions in the competitive or classified service in accordance with the civil
service rules, except as otherwise provided for in this Act: Provided,
That whenever there is a civil service eligible available for appointment, no
person who is not such an eligible shall be appointed even in a temporary capacity to any vacant position in the
competitive or classified service in the government or in any government-owned
or controlled corporation: Provided, further, That non-eligible
employees who, upon the approval
of
this Act, have rendered five years or more of continuous and satisfactory
service in classified positions and who meet the other qualifications for
appointment to their positions, shall, within one year from the approval of this
Act, be given qualifying examinations in which their length of satisfactory
service shall be accorded preferred consideration: Provided, further, That those who fail in
those examinations as well as those who fail or refuse to take the examinations
when offered shall be replaced by eligibles: x x x”[2]
For under the cited section, the Court has held a non-eligible
appointee who has already more than five years of service to his credit, even
though his appointment be of a temporary character, to have “acquired a
right to continue holding his position until three conditions have been
complied with, namely, (1) he must have been given a qualifying examination
within one year from said approval, (2) he either failed in said examination
or failed or refused to take it,
and (3) he could be replaced only by one who has the requisite or appropriate
civil service eligibility. Without these
conditions, he had the right to continue in his position even permanently.”[3]
On the other hand, the Act requires as a qualification that the
non-eligible employee should “upon the approval of this Act, have rendered
five years or more of continuous and satisfactory service.” Now, where the employee had more than five
years of service prior to the enactment of the Act on June 19, 1959 – seven
years in the case of petitioner – does the requirement of continuous and
satisfactory service apply to
the employee’s entire length of service or is it sufficient that at least five
of those years have been continuous and satisfactory?
Petitioner’s contention is that he met the qualification because
he had rendered at least five years of continuous and satisfactory service, for
from December 1, 1952 when he commenced his service up to April 5, 1958, when
the prisoner in his custody escaped (for which he was charged administratively
and found guilty, after investigation under Republic Act 557 although he held
merely a temporary appointment, by the Municipal Council which imposed a
penalty of one month’s suspension) more than five years had elapsed.[4]
The Court rejects petitioner’s contention and sustains the trial
court’s ruling that by virtue of this blot on his service record, having been
found by the Municipal Council to be inefficient in his service as a policeman,
he did not meet the qualifications for appointment to the position. In other words, to qualify for retention in
the service, the non-eligible employee, at the time of the approval of the Act,
must have “rendered five years or more of continuous and satisfactory
service.” This requirement plainly
applies to the employee’s entire length of service at the time of the Act’s
approval, where such service exceeded the’ minimum pre-Act employment of five
years. The entire length of service actually
rendered must be continuously satisfactory and not only a part thereof. For the Act does not countenance inefficiency
or negligence in the service at any time nor does it set a time limit to
efficiency and satisfactory service for a certain period and allow
inefficiency or unsatisfactory service after that period.
This construction is supported by the Act’s further provision
that such non-eligible employees who meet its requirement of “five years or more of continuous and satisfactory service. . . . . . shall, within one year
from the approval of this Act, be given qualifying examinations in which
their length of satisfactory service shall be accorded preferred consideration.” Thus, an employee with seven years of
continuous satisfactory service would be accorded preferred consideration as
against an employee with the minimum five years’ satisfactory service. Petitioner’s interpretation that he should
qualify for the Act’s protective clause since at least five years of his
service have been satisfactory obviously does not meet the Act’s express
requirements, which were meant to protect only those non-eligibles who had
dedicatedly and uninterruptedly rendered five years or more of satisfactory service, by giving them a one-year’s period
to pass the qualifying examinations and be absorbed in the civil service. Here, petitioner, after having rendered five
years of continuous and satisfactory service, committed a serious breach of
duty for which he was administratively found guilty and his penalty of
suspension ended on August 27, 1958,[5]
less than a year before the enactment of the Act on June 19, 1959. The most liberal construction of the Act’s
requirement, which would condone or overlook unsatisfactory service of the
employee at the early part of his employment if he thereafter rendered at least
five years of continuous and satisfactory service before the Act’s approval
would be of no avail to petitioner.
Finally, petitioner’s failure to pass the qualifying examinations
effectively bars his claim to reinstatement.
ACCORDINGLY, the judgment appealed from is hereby
affirmed. Without costs.
Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Fernando,
Barredo, and Villamor, JJ., concur.
Castro, J., on leave.
[1]
Petitioner’s brief, p. 2
[2]
Emphasis furnished.
[3]
Azur vs. Prov. Board, G.R. No.
L-22333, Feb. 27, 1969, 27 SCRA 50; see also Manay vs. Buenaventura, G.R. No.
L-24097, Nov. 18, 1967, 21 SCRA 962.
[4]
Petitioner’s brief, p. 9.
[5]
Exh. 2; Petitioner’s brief, p. 9.