DOMINGO MANAY, PETITIONER-APPELLANT, VS. A.L. BUENAVENTURA, ACTING COMMISSIONER OF CIVIL SERVICE, RESPONDENT-APPELLEE.

Appeal from a decision of the Court of First Instance of Manila
to the Court of Appeals but certified by the latter to this Court as a case
involving only pure questions of law.

As shown by the stipulation of facts and its annexes, Anastacio Revilla was appointed
as Chief of Police of Santa Cruz, Marinduque in 1945;
after a term as deputy assessor (from March 1, 1947 to June 30, 1953), Revilla was re-appointed
as Chief of Police on 1 July 1953; and served as such since then, his latest
appoint­ment being that of 16
July 1959 as temporary^[1]
Chief of Police, which was attested
as such by the Commissioner of Civil Service on 5 February 1960; on 27 February 1960, he took the patrolman
examination (Qualifying) and passed it.

On 16 January 1960,
however, the Municipal Mayor of Santa Cruz appointed the petitioner-appellant, Domingo Manay, as Chief of Police and Anastacio Revilla
as Police Sergeant.  On the same day, the appointees took their oaths of office and
assumed their respective positions.

On 30 October 1960, the respondent Commissioner of Civil Service,
in a return indorsement to the Municipal Mayor,
approved as provisional^[2]
the appointment of Anastacio Revilla
as Chief of Police, effective 16 July 1959; informed the mayor that Revilla was entitled to retention and not replaceable even
by an appropriate civil service eligible, for having served continuously as
Chief of Police for more than five (5) years prior to the approval on 19 June
1959 of the Civil Service Act, Republic Act No. 22 60; and returned without action
Revilla’s appointment as Sergeant, for being a
demotion.

On 4 March 1961, Revilla protested with
the respondent Commissioner the appointment of Manay
as Chief of Police on the ground of non-observance of the rules on seniority
and merit and gross discrimination; on 15 March 1961, the Municipal Mayor
informed the Commissioner that protestant Revilla was
physically unfit to perform the work of a police officer because he suffers
from a limping gait and subject to seasonal attacks of rheumatism and has failed
to submit a physical examination certificate.

Acting upon Revilla’s protest, the
Commissioner found both Manay and Revilla
to be eligible for appointment as Chief of Police.  However, the Commissioner approved Manay’s appointment as Chief of Police, not as permanent,
but only “for the period of actual services rendered x x x,” saying:

“It would appear that at the time Mr. Revilla
was replaced as Chief of Police
by Mr. Manay, the former had rendered more than five
years of continuous and satisfactory service prior to June 19, 1959, the date of the approval of R. A.
2260. He had, therefore, a right of retention to the position (Chief of Police)
he was holding on June 19, 1959, pursuant to Paragraph 4 of Section 23 of
Republic Act 2260, which provides ‘x x x That non-eligible employees who, upon the
approval of this Act have rendered five years of (sic) more of continuous and
satisfactory service in Classified position and who meet the other
qualifications for appointment to their position, shall be accorded preferred
consideration: Provided, further, that those who fail in these examinations
as well as those who fail or refuses to
take the examinations when offered shall be replaced by eligibles: x x
x.” For this reason and as Mr. Revilla took the Patrolman (Q) examination held on February
27, 1960 and passed it it would seem that this
demotion from Chief to Sergeant of Police is not in order.”

Manay requested a reconsideration but
the Commissioner denied it on 4
October 1962.

Unsatisfied, petitioner-appellant Domingo Manay
filed in the Court of First Instance of Manila
a petition for certiorari and mandamus (docketed as Civil Case No.
52149) seeking the annul­ment of the action taken by the Commissioner of Civil
Service and to have his (Manay’s) appointment
approved as permanent.

The trial court denied the petition and Manay
interposed and appeal to the Court of Appeals. 
The appellate court, as aforestated, certified
the case to us.

We find no merit in this appeal. 
No adequate factual premises exist for the petitioner-appellant’s charge
that respondent Civil Service Commissioner acted with grave abuse of discretion
in disregarding the alleged physical unfitness of Revilla.  While the respondent passed the matter sub silencio but had approved Revilla’s appointment as Chief of Police as provisional
only, the records do not show why the appointment was approved as provisional,
and it cannot be said that the respondent had, in fact, disregarded Revilla’s physical condition and had abused his
discretion.  Anyway, as pointed out by the Solicitor General, the
alleged disability could hardly be true, because Revilla
not only served as Chief of Police for more than five years, but was appointed
by the protesting Mayor as Police Sergeant, a position that demands more
physical exertion on the part of the appointee.

Petitioner-appellant
argues that Revilla’s protest is already barred by laches for having been filed after more than one year
from the time the petitioner was appointed as Chief of Police on 16 January 1960.  The cases relied upon by him (Madrid vs. Auditor
General, 108 Phil. 578; Agapuyan vs. Ledesma, L-10535, 25 April 1957) do not apply in
the present case, because Revilla’s protest was an unnecessary
act; as early as 30 October 1960, the Commissioner had favorably
acted upon Revilla’s
appointment as Chief of Police and disapproved his demotion to Sergeant.  Revilla could not
have brought suit in Court while the Civil Service Commissioner had not acted on the appointment of Manay.

Nor may estoppel for accepting the
position as Sergeant operate to block Revilla in
assuming the position of Chief of Police because when Manay
was appointed as Chief of Police on 16 January 1960, he went on leave and Revilla continued to discharge the duties of Chief of
Police.

According to the petitioner, he has passed the probationary
period of six months and, on this account, his appointment should already be
permanent.  But, the law which the
respondent Commissioner
implemented, as was his duty to do, gives preference to Revilla.

“Qualifications 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 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 x.” (Par.
4, Sec.  23, Republic Act 2260) (Underscoring supplied)

Conversely, if Manay’s appointment is approved as permanent, such
approval would contravene the above legal provision.

Since, by statute, the petitioner-appellant possesses an inferior
right to the position, a ruling as to the availability of the remedy of
mandamus to compel the respondent to approve the appellant’s appointment as
permanent is unnecessary, petitioner having no right to permanence anyway.

For the foregoing reasons, the Appealed decision is hereby
affirmed, with costs against the appellant Domingo Manay.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Bengzon, Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.

^[1]
per Stipulation of Facts.

^[2]
Annex B-4 to Stipulation of Facts.