BASILIO M. PINEDA, AS DEPUTY CHIEF OF POLICE OF PASAY CITY, PETITIONER, VS. JOVITO O. CLAUDIO, AS MAYOR OF PASAY CITY; FRANCISCO A. VILLA AND ABELARDO SUBIDO, AS COMMISSIONER OF…

This is a petition for mandamus to compel the respondent Jovito O. Claudio, mayor of Pasay
City, to appoint the petitioner Basilio M. Pineda
chief of police of the city, on the theory that, as the incumbent deputy chief
of police and therefore the officer next in rank, the petitioner is legally
entitled to be promoted to the said position.

Upon the death of Col. Mariano Tumaliuan
on August 28, 1968, the
position of chief of police of Pasay
City became vacant.  To fill the vacancy, Claudio appointed the
respondent Francisco Villa, a state prosecutor in the Department of Justice,
but the respondent Commissioner of Civil Service Abelardo
Subido held the appointment in abeyance until other
persons who, in Subido’s opinion, had preferential
right to appointment have been consi­dered. 
One of these persons is Pineda who, as deputy chief of police, “is
a person next in rank entitled to promotional prefer­ence for the position of
Chief of Police … before others may be considered (for) transfer,
reinstatement, reemployment, or cer­tification.”

Subido defined his stand in his letter
to Mayor Claudio of September 17, 1968,
the text of which reads:

“Sir:

“This refers to the proposed appointment of Mr. FRANCISCO A.
VILLA, a Bar (RA 1080) and second grade eligible, as Chief of Police in the
Police Department of Pasay City at P12,000 per annum
effective September 1, 1968, vice Ma­riano Tumaliuan,
deceased.

“Section 4 of Republic Act No. 5185 (De­centralization Pet of
1967) in its paragraphs 4 and 5 provides:

“‘In cases of vacancies in the offi­ces of heads and assistant
heads of local offices, the governor or mayor shall fill them by appointment
from a list of the five next ranking eligible and qualified persons as
certified by the Civil Service Commis­sion: 
Provided, That these five persons shall have stated beforehand
that they will assume the position, if appointed.  (paragraph 4)

“’The ranking shall be based on such factors as class of province,
city or munici­pality where the vacancy occurs, seniority, efficiency rating,
extraordinary qualifications, and other supplementary criteria as may be
prescribed by the Civil Service Com­mission.’

“Paragraph 3, Section 23 of Rep. Act 2260, also provides:

“’Whenever a vacancy occurs in any competitive or classified
position in the go­vernment or in any government-owned or controlled
corporation or entity, the officer or employee next in rank who is competent
and qualified to hold the position and who possesses an appropriate civil
service eligibility shall be promoted thereto: 
Provided, That should there be two or more persons under equal
circumstances, seniority shall be given preference.  And, provided, how­ever,
That should there be any special rea­son or reasons why such officer or
employee should not be promoted, such special reason or reasons shall be stated
in writing by the appointing official and the officer or employee concerned
shall be informed thereof and be given an opportunity to be heard by the
Commissioner of Civil Service, whose decision in such cases shall be
final.  If the vacancy is not filled by
promotion as provided here in, then the same shall be filled by transfer of
present employees in the government ser­vice, by reinstatement, by reemployment
of persons separated through reduction in force, or by certification from
appropriate register of eligibles in accordance with
rules promulgated in pursuance of this Act.’

“Interpreting this latter provision in the case of Millares vs. Subido, et
al., G.R. No. 23281,August 10, 1967, the Honorable Supreme Court
ruled:  ‘In other words, a vacant
position (be it new or created by the cessa­tion of an incumbent in office)
shall be filled by pro­motion of the ranking officer or employee, who is
competent and qualified to hold the same. 
And only, where, for special reason or reasons of which the affected
officer or employee will be notified, this mode of recruitment or selection
cannot be observed, that the position may be filled either by transfer, or
reemployment, or by getting from the certified list of appropriate eligibles, in that order.’ (Underscor­ing by the
Court).

“The above-quoted provisions and Supreme Court ruling spell
out categorically the priorities in the modes of filling a vacancy in the
competitive service, to wit:  first
priority is by promotion of next in rank employees from within the agency,
second is by transfer of employees in other agencies, third is by reinstatement
and reemployment of for­mer employees, and last by certification from the
appropriate eligible lists.

“Conformably with these provisions and ruling, this Office
announced in the Manila Times of September 5, 1968, the mode of filling vacancies for Chief
of Police for Manila and Pasay Ci­ty
and the qualifications of those who may apply. 
A Xerox copy of the clippings of the Manila Times is hereto attached as
Annex ‘A’.  The said announce­ment was
also the subject of a news item published in the same issue of the Manila
Times, a copy at­tached as Annex ‘B’.

“As of this writing, the following persons, in the order of priority,
are hereby certified for the said position:

“A. Promotion (next-in-rank)

1.                 
Basilio
Pineda.  – formerly chief of police of
the Pasay City Police Department, a chief of police
eligible, and presently Deputy Chief of Police of the Pasay
City Police Depart­ment.

“B. Transfer

1.                   
Major Jesus Dizon
– a Xerox copy of his curriculum vitae is attached.

2.                   
Albino S. Mondares – a Xerox copy of his curriculum
vitae is attached.

“C. Reinstatement/Reemployment

1.    
Jaime Valencia formerly chief of
police of Pasay City Police Depart­ment whose
appointment was by­passed.  His
information sheet is on file in that Office.

“D. Certification

1.    
Roland C. Siquijor
– (Chief of Police eligible.)

2.    
Abelardo
Tesoro – (Chief of Police eligible.)

3.    
Francisco Villa – the proposed
appointee.

“It is significant to note in this connection that Mr. Basilio Pineda, who is presently the De­puty Chief of
Police of Pasay City, a Chief of Police eligible and
formerly the Chief of Police of Pasay City, is a
person next in rank entitled to promotional preference for the position of
Chief of Police.  Under the law and
Supreme Court ruling above cited, Mr. Pineda should be considered for promotion
before others may be considered by transfer, reinstatement, reemployment, or
certification.

“As a matter of fact this Office in a letter dated August 5,
1968, and reiterated in a 1st indorsement dated
August 28, 1968, has previously directed that Office to consider Mr. Pineda for
designation as the Acting Chief of Police in place of Mr. Fran­cisco Grape, who
does not possess the appropriate eligibility and who is holding on to the
position of Deputy Chief of Police by virtue of a preliminary writ of
injunction issued by the CFI of Rizal.  Information is requested as to the reason why
the direc­tive of this Office contained in the said communica­tion has not been
complied with.

“If Mr. Pineda may not be considered, the special reason or
reasons therefor must be stated in writing and
submitted to this Office.  The same
procedure should also be followed if Messrs. Dizon, Mondares and Valencia
may not be considered for the said position before Messrs. Siquijor,
Tesoro and Villa may be considered for appointment
thereto.

“Premises considered, the processing of the proposed
appointment of Mr. Francisco Villa is held in abeyance until after the persons
with ap­pointment preference have been duly considered by that Office, and for
special reason or reasons, could not be appointed Chief of Police.  In the mean­time, the directive of this
Office contained in the letter dated August
5, 1968 should be complied with by that Office.”

In reply, Claudio for the first time disclosed his reasons for
not appointing Pineda to the vacant position. 
In his letter to Subido on September 20, he
explained:

“As a native of Pasay
and having been an official hereof for the past eight (8) years I am fully cog­nizant
of the performance in office of Messrs. Basilio
Pineda, Jaime Valencia, Roland C. Siquijor and Abelardo Tesoro and they cannot
boast of any improvement they have introduced to lift the sagging inefficiency
of the local police organiza­tion.  The
actual members of untrained and undis­ciplined men still persist.”

On September 30, 1968 the Secretary of Justice, to whom the
matter had earlier been referred, submitted a memorandum to the President
substantially to the effect that section 23 of the Civil Service Act of 1959
does not apply in the case of the chief of a police agency whose appointment,
it was contended, is governed by the Police Act of 1966.  Pertinent excerpts from the said memorandum
are hereunder quoted:

“3.  Under the Police Act, … it is spe­cifically
provided (in section 17) that in case of permanent vacancy caused by death,
etc., in a local police agency, ‘the mayor shall fill such vacancy as
provided in this Act‘ and not in accor­dance with the Civil Service Act and
rules and re­gulations.  Congress is
presumed to be aware of certain rules or limitations in the general civil
service law which operate to restrict or curtail the discretion of the
appointing power; hence, this special rule which makes it indubitable that the
general rules governing appointment in the civil service, are inapplicable to
appointments in a police service, except of course, where it so expressly
provided therein or incorporated in the implementing rules and regulations.

“4.  As regards the chief of police, there is even
another provision which serves to under­score this special rule.  I refer to the last paragraph of Section 10, supra,
which states that in case there is no civil service eligible available for the
position of chief of police, ‘provisional appointment may be made in accordance
with the Civil Service Law and Rules.’ It is implicit in this provision
that in other cases, especially those covered by section 17, the appointment
shall be permanent in nature and ‘as provided for in this (Police) Act.’

“5.  … [A]side from the provision (of sec­tion
11) specifically forbidding the filling of ‘any po­sition by permanent
appointment unless the appoin­tee has the appropriate eligibility, there
appears to be no other statutory limitation on the City Mayor’s discretion in
the selection of the chief of police so long as the one chosen possesses the
minimum qua­lifications prescribed by the Act. 
The Police Manual has included the civil service rule on promotion which
gives the next-in-rank, among others, prefe­rence in the filling of the vacant
position.  However, upon close
examination of Rule VI, it is readily seen that the promotional rules therein
set forth find ap­plication only to the filling of positions in the police
service below that of chief of police he being the one charged with the
duty and responsibility of screening and recommending for promotion the
deserving mem­bers of the police agency (sections 2, 3, 4, 5 and 6).  Of course, in every case the next-in-rank or
deputy chief, by reason of his position, would surely be among the first to be
considered by the City Mayor in the selection of the chief of Police, if
qualified and competent; but he cannot claim any preferential right over others
in the list of eligibles based on the aforementioned
rule found in the Civil Service Act.

“6.  This was the legal situation at the time of
the enactment of the Decentralization Law (RA 5185, approved on September 12,
1967).  I am unable to see any substantial
change resulting from the in­sertion in section 4 thereof, quoted supra, of the
provision that the heads of offices and their respec­tive assistants, whose
salaries are paid out of city funds, shall be appointed by the City Mayor ‘subject
to the civil service law, rules and regulations.’ Obviously, this clause
refers to office heads whose appointments, unlike that of the chief of police,
are not covered by any special law or provision and should therefore be
appointed in accordance with the general civil service law and
rules.  … What is more important and
far-reaching in Section 4 is the provision which categorically states that the
of­fices of the aforementioned heads and assistant heads ‘shall be filled by
appointment from a list of five next ranking eligible and qualified
persons as certified by the Civil Service Commissioner, ‘which shall be
based on ‘such factors as class of the city where the vacancy occurs, seniori­ty,
efficiency rating, extraordinary qualification, etc.  The import of this special provision is that
the filling of the positions of the office heads and assistant heads is to be
governed by this special rule, unencumbered by the civil ser­vice rule
on the preferential right of the next-in-­rank and others seeking transfer,
reinstatement or reemployment in order to give the City Mayor a wide latitude
in the choice of key officials. 
…”

Answering the memorandum of the Secretary of Justice, Subido contended in his own memorandum to the President of October 14, 1968 that section 23 of
the Civil Service Act does not conflict with the provisions of the Police Act
of 1966. “In fact, it was incorporated verbatim in the Police
Manual.  But what is important is that
the filling of positions in the police ser­vice including that of Chief of
Police in accordance with the pro­cedure outlined in paragraph 3 of Sec. 23 of
Republic Act 2260 in relation to Sec. 4 of the Decentralization Act (Rep. Act
5185) would strengthen the police service. 
Vice versa, leaving the mat­ter of promotion solely to the
discretion of the Mayor without re­gard to the order of priorities contained in
the Civil Service Law, would result in its demoralization.”

Nor did he think the mayor’s reasons for bypassing Pine­da to be
valid, considering that just a few months before the ma­yor had appointed
Pineda deputy chief of police. “If Mr. Pineda can qualify as Deputy Chief
of Police in the Mayor’s estimation (and thus under Sec. 17 of the Police Act,
he shall automatically assume the office of Chief of Police in case a temporary
vacan­cy occurs in said office), how can Mayor Claudio now claim in all
sincerity that Mr. Pineda is not qualified to be chief of Police?”

Respondents Claudio and Villa point out, on the other hand, that Subido should be held in estoppel
on the basis of his approval of the very appointment of Pineda as deputy chief
of police of Pasay City, ‘where no list of those with
“preferential rights” and no inquiry as to the mayor’s reasons for
not appointing the police officer next-in-rank in the Pasay
City police department was made; and that advising the mayor that “the
filling of the vacancy for De­puty Chief of Police is governed by Section 4,
R.A. 5185,” Subido merely issued a
certification, containing the names of “five rank­ing qualified and
eligible persons” including Pineda, and evidently did not consider as
applicable the provisions on preferences of Section 23 of the Civil Service Act
nor the ruling in Millares v. Subido^[1]
now invoked by him.

Subido admitted in his reply that
Memorandum Circular No. 1, S. 1968, dated January 12, 1968, under which he
issued the said certification without a list of “preferential rights”
or “priorities,” “overlooked the Millares
case and relied solely on the provision of Sec. 4, Rep. Act 5185,” but
averred that later, after having become convinced that the Millares
ruling was ap­plicable to the filling of vacancies of heads and assistant heads
of local offices under the Decentralization Law, he issued Memorandum Circular
No. 21, S. 1968, dated September 5, 1968, providing for such procedure of
priorities, which was the proce­dure in force as of the date the appointment of
Villa was received in his office.

As no solution to the impasse was in sight, Pineda filed the
present action, contending that, under section 23 of the Ci­vil Service Act, as
interpreted in Millares, in relation to
Section 4 of the Decentralization Act, it is the duty of the mayor to pro­mote
him as the ranking employee, and that only if for, some “spe­cial
reasons” he cannot be promoted may others be considered for transfer,
reemployment or certification, “in that order.”

On the other hand, Claudio’s position is that what controls is
not section 23 Of the Civil Service Act but section 8 of the Po­lice Act of
1966, which states that a chief of police may be ap­pointed “from the list
of eligibles certified by the Civil Service
Commissioner.” As Villa is one of those certified, Claudio con­cludes that
his appointment as chief of police is in order.

Section 17 of the Police Act of 1966 expressly provides that
“In case of vacancy caused by death, retirement, resigna­tion, suspension
or removal in a local police agency, the mayor shall fill such vacancy as
provided for in this Act,” obviously referring to Section 8 thereof
which states that “appointment to a local police agency shall be made by a
mayor from the list of eligibles certified by the
Civil Service Commission.” The vali­dity of Villa’s appointment, because
he is one of those mentioned in the certified list of eligibles,
as required by the Police Act of 1966, could be here and now sustained, without
need of further discussion, were it not for the subsequent enactment in 1967 of
the Decentralization Act, particularly, Section 4 thereof, which provides:

“Appointment of Heads, Assistant Heads of Local Offices and
Their Subordinates.  – The Provincial
Assessor, Provincial Agriculturist and other heads of offices entirely paid out
of provin­cial funds and their respective assistants shall, sub­ject to civil
service law, rules and regulations, be appointed by the Provincial
Governor:  Provided, however,
That this section shall not apply to Judges, Au­ditors, Fiscals, Division
Superintendents of Schools, Supervisors, Principals, Provincial Treasurers,
Provincial Health Officers and District Engineers.

“The City Assessor, City Agriculturist, Ci­ty Chief of Police
and City Chief of Fire Depart­ment and other heads of offices entirely paid out
of city funds and their respective assistants or depu­ties shall, subject to
civil service law, rules and regulations, be appointed by the City Mayor:  Pro­vided, however, That this
section shall not apply to Judges, Auditors, Fiscals, City Superintendents of
Schools, Supervisor’s, Principals, City Treasurers, City Health Officers and
City Engineers.

x          x          x

“In case of vacancies in the offices of heads and assistant
heads of local offices, the governor or mayor shall fill them by appointing
from a list of the five next ranking eligible and qualified per­sons as
certified by the Civil Service Commission­er: 
Provided, That these five persons shall have stated beforehand
that they will assume the posi­tion if appointed.

“The ranking shall be based on such factors as class of
province, city or municipality where the vacancy occurs, seniority, efficiency
rating, extraordinary qualifications and other supplemen­tary criteria as may
be prescribed by the Civil Service Commission.” (R.A. 5185)

The pertinent provisions thereof to the effect that the heads of
offices entirely paid out of city funds, including the chiefs of po­lice, and
their assistants or deputies, shall, “subject to civil ser­vice law,
rules and regulations, be appointed by the City Mayor” and that the
mayor “shall fill them by appointment from a list of the five next ranking
eligible and qualified persons as certified by the Civil Service
Commissioner,” throw us right back to the ba­sic Civil Service Act.  It behooves us, specifically, to determine
the scope and meaning of the provisions of Section 23 which deal with the
“Recruitment and Selection of Employees.”

The contending parties have thus thrust upon this Court the basic
issue of the proper application and scope of Section 23 of the Civil Service
Act in relation to the provisions of the Decentralization Act of 1967 and the
Police Act of 1966.

The petitioner states the issues as follows:

“(1)  Is it mandatory and ministerial upon the Mayor
of Pasay City to promote to the vacant posi­tion of
Chief of Police, a competitive position, peti­tioner Pineda, the incumbent
Deputy Chief of Police, who is the competent and qualified next-in-rank em­ployee
with the appropriate civil service eligibility?

“(2)  Is respondent Mayor’s appointment of
respondent Villa to the said classified position of Chief of Police null and
void, considering that he is an outsider, he is not next-in-rank employee
and he has not passed the Civil Service examination for Chief of Police?”

The respondents Claudio and Villa formulate the issues, thus:

“(1)  Is the appointment of the Chief of Police of Pasay City to be regulated by Section 8 of the Police Act
of 1966, or by Section 4 of the Decentraliza­tion Act and the third paragraph
of Section 23 of the Civil Service Law?

“(2)  If the appointment of the Chief of Police of Pasay City is subject to the provisions of section 4 of the
Decentralization Act, is it mandatory that respondent Mayor appoint Petitioner
to the position?”

The respondent Subido, in his Answer,
“submits the mat­ter to the judicious consideration of this Honorable
Court,” emphasizing the urgency of the resolution of the legal issues
presen­ted, “considering that the questioned appointment of respondent
Francisco A. Villa would be the first appointment under the Decentralization
Act and any decision thereon would guide the future action of the Civil Service
Commission and other offices con­cerned in the application of said law.”

The first two paragraphs of Section 23 of the Civil Service Act
(the third paragraph we have already reproduced above, supra), read
together with Section I of Article XII of the Philippine Constitution which
directs that “[A]ppointments in the Civil Ser­vice
… shall be made only according to merit and fitness, to be determined as far as
practicable by competitive examinations,” provide the key for the proper
application and interpretation of the “next-in-rank” rule enunciated
in the third paragraph of said Sec. 23. 
These first two paragraphs set the guide norm that:

“Sec. 23.  Recruitment
and Selection of Employees.  – Opportunity
for government employment shall be open to all qualified citizens and positive
efforts shall be exerted to attract the best qualified to enter the service.

“Employees shall be selected on the basis of their fitness
to perform the duties and assume the responsibilities of the positions
whether in the competitive or classified or in the non-competitive or
unclassified service.” (emphasis supplied)

The granting of equal opportunity for government employ­ment to
all qualified citizens and the exertion of positive efforts to attract the best
qualified to enter the service may be implemen­ted effectively only through the
judicious exercise of the best judg­ment and discretion of the appointing
authority.

Resolving the issue squarely presented, we hold that it is
neither mandatory nor ministerial for the mayor of Pasay
City to promote to the vacant position of chief of police the incumbent de­puty
chief of police Pineda, and that the appointment to said posi­tion of the
respondent Villa, who has been certified as qualified and eligible, although an
“outsider” and not the next-in-rank em­ployee, is valid, in
the same manner that the appointment of Pineda, although an `outsider” and
not the next-in-rank, to the position of deputy chief of police was valid.

The Civil Service Act does not peremptorily require the ma­yor to
promote the officer next in rank. 
Section 23 thereof does not require that vacancies must be filled
by promotion, transfer, rein­state merit, reemployment or certification, in
that order.  That would be to construe
the provision not merely as a legislative pre­scription of qualifications but
as a legislative appointment, repug­nant to the Constitution.  What it does purport to say is that as far as
practicable the person next in rank should be promoted, other­wise the vacancy
may be filled by transfer, reinstatement, reem­ployment or certification, as
the appointing power sees fit, provi­ded the appointee is certified to be
qualified and eligible – which is the basic requirement of the Civil Service
Act, as well as of the Police Act and the Decentralization Law.

To construe section 23 the way the petitioner urges it should be,
would be to unduly interfere with the power and prero­gatives of the local
executive as reinforced by the Decentraliza­tion Act at the same time that it
would frustrate the policy of the Police Act “to achieve and attain a
higher degree of efficiency the organization, administration, and operation of
local police agencies”^[2]
and that of the Civil Service Act “to attract the best qualified to enter
the service.” For it is not enough that an as­pirant is qualified and
eligible or that he is next in rank or line for promotion, albeit by passive
prescription.  It is just as ne­cessary,
in order for public administration to be dynamic and, responsive to the needs
of the times, that the local executive be allowed the choice of men of his
confidence, provided they are qualified and eligible, who in his best
estimation are possessed of the requisite reputation, integrity, knowledge
ability, energy and judgment.  After all,
it is the local executive, more than any­one else, who is primarily responsible
for efficient governmental administration in the locality and the effective
maintenance of peace and order therein, and is directly answerable to the people
who elected him.  Nowhere is this more
true than in the sensitive area of police administration.

True it is that in Millares,^[3]
this Court, referring to sec­tion 23 of the Civil Service Act, made the
following statement:

“In other words, a vacant position (be it new or created by
the cessation of an incumbent in office) shall be filled by promotion of the
rank­ing officer or employee, who is competent and qualified to hold the
same.  And only where, for special reason
or reasons of which the affected officer or employee will be notified, this
mode of recruitment or selection cannot be observed, that the position may be
filled either by transfer, or reemployment, or by getting from the certi­fied
list of appropriate eligibles, in that order.”

But that statement was not necessary,
considering that, in the language of the decision itself, “no evidence was
presented that there were ranking employees in the office of the City Mayor af­fected
by the appointment of appellee to the position
involved herein.” There was therefore no occasion for the application of
section 23 to that case.

Here, the question is squarely presented,^[4]
and we now rule that the principle of seniority and the next-in-rank rule
embodied in section 23, with its corollary requirement to set forth the
“special reason or reasons” in case the officer next in rank is not
appointed to the vacant position, applies only to cases of pro­motion.  Hence, where the appointing power chooses to
fill the vacancy not by promotion but by transfer, reinstatement, reem­ployment
or certification (not necessarily in that order, as we have already said) he is
under no duty whatsoever to explain his action, for the law does not so require
him.  The reason for this distinction is
simple.  When a person who is a junior
jumps over his senior, the ranking is disturbed and the person next in rank is
actually bypassed, and so it is reasonable to require the ap­pointing power to
give his “special reason or reasons” for pre­ferring his appointee to
the officer next-in-rank. But where the vacancy is filled not by promotion but
by transfer, the person next-in-rank is not really bypassed, because the person
appointed is one who holds a position of equivalent rank as the vacant posi­tion.  To the appointee, the new position is hardly
a higher one.  As this Court correctly
observed in Millares, in distinguishing
promotion from transfer, “whereas the first denotes a scalar as­cent of a
senior officer or employee to another position, higher either in rank or
salary, the second refers to a lateral movement from one position to another of
equivalent rank level or salary.”^[5]

The same reasoning applies when the person chosen to fill the
vacancy is merely being reinstated to, or reemployed in, the position which he
formerly held.  For it is obvious that in
this case such person is the senior of the one who at the moment is next in
rank.  As for the person chosen by
certification, it may be said that he has never been rated before and so he can
be said neither to be below nor above the ranking employee in the hierarchy.

It may be added that there is no valid or cogent reason to
consider it mandatory and ministerial that the filling of vacancies be by
promotion, transfer, reinstatement or reemployment, and certification, in that
order.  There is no legal fiat that those
next in rank for promotion are more fit and meritorious for appointment than
those moved by transfer from another unit or depart­ment, and that those
applying for transfer should have “prefer­ence” to those seeking
reinstatement, and the latter in turn to those who are duly certified eligibles.  From the
perspective of practical experience, it cannot be doubted that some
next-in-rank officers or employees have risen to their seniority slots through
mere passivity.  And as a matter of
policy, those who have pre­viously resigned to avoid investigation of
involvement in irregularities in office should certainly not be allowed to
invoke “prefe­rence” when they subsequently seek reinstatement or
reemploy­ment.  The only way to determine
such fitness would be to hold competitive examination among all applicants
every time a vacan­cy occurs, which would be completely disruptive of the
public service.  Our Constitution
recognized this and hence provided that appointments be made according to merit
and fitness, to be determined only as far as practicable by competitive examina­tion.  Hence, our system of qualification through
periodic appro­priate examinations. 
Among those qualified and eligible, the ap­pointing authority is granted
the discretion and prerogative of choice of the one he deems most fit for
appointment.

This is not to say that seniority and rank are of no
consequence.  The Civil Service Act does
direct, as we construe it, that as far as practicable the next in rank should
be among the first considered for the vacancy, if qualified and eligible, and
requires that when the vacancy is filled by promotion, the appointing
authority must give the “special reason or reasons” for by
passing the next-in-rank.  But such
official cannot claim any preferential right to appointment to the vacancy over
others equally certified to be qualified and eligible for appointment by
transfer, reinstatement or reemployment, or by appropriate certification, just
as those applying for transfer cannot claim preference over those seeking
reinstatement, etc., nor subject the appointing authority’s reasons for his
choice to final review and decision by the Civil Service Commissioner.  To so hold as the petitioner and the
respondent Commissioner contend, would be to invalidly subs­titute the judgment
of the Commissioner of Civil Service for that of the appointing authority, in
whom the prerogative of free choice resides. 
More, in the present case, Subido’s action of
questioning respondent Claudio’s sincerity in not appointing petitioner to the
vacant position of chief of police when he had appointed him (Pineda) as deputy
chief of police just a few months before, projects the pitfalls of such a
theory which would in some cases permit unauthorized interference by the
Commissioner of Civil Service with the appointing authority’s free exercise of
his judgment and prero­gative of free choice.

Of course, where there is unequivocally demonstrated an arbitrary
and improvident exercise of the power of the appointing authority, as will
constitute a denial of due process of law, to paraphrase the Court’s ruling in Morrero v. Bocar,^[6]
such as where the qualifications, merit, experience and competence of an offi­cial
next in rank for promotion are widely disparate over those of the actual
appointee, proper remedy through judicial review would be available.  For due process recognizes the free exercise
by the executive of his prerogatives under the Constitution and the laws but
rules out arbitrariness and oppression.^[7]

We do not of course lose sight of the fact that Section 4 of the
Decentralization Act of 1967 does provide that

“In cases of vacancies in the offices of heads and assistant
heads of local offices, the governor or mayor shall fill them by appoint­ment
from a list of the five next ranking eligi­ble and qualified persons as
certified by the Ci­vil Service Commission. 
…”

Reading this provision in the light of
the Civil Service Act, the meaning emerges that in each class the Commissioner
must cer­tify, whenever there are available, five ranking, qualified and
eligible persons.  Thus, the Commissioner
whenever practicable and possible, must certify five qualified and eligible
persons for each area, i.e., five such persons for promotion,
five such per­sons for transfer, and so on. 
And this has been properly imple­mented by the respondent Commissioner
in his last Memorandum Circular No. 21, S. of 1968, dated September 5, 1968,
where he announced that his office would certify not more than five eligi­bles and qualified persons in each list as
follows:  “(a) promotion list; (b)
transfer list; (c) reinstatement/reemployment list; and (d) list of appropriate
eligibles,^[8]
although he erroneously assign­ed priority thereto in that order, whereas we
have above ruled that there is no such order of priority amongst the four said
areas.

We, therefore, hold that in the event of there occurring, a
vacancy, the officer next in rank must, as far as practicable and as the
appointing authority sees fit in his best judgment and esti­mation, be
promoted, otherwise the vacancy may be filled either by transfer,
reinstatement, reemployment or certification, not necessary in that order – and
that it is only in cases of promotion, where an employee other than the ranking
one is appointed, is the appointing power under duty to give “special
reason or reasons” for his action to the Civil Service Commissioner, as
provided in Section 23, third paragraph, of the Civil Service Act.

As there is no question that the respondent Villa has been
certified to be qualified and eligible, it is well within the ambit of the
power of the respondent Claudio to appoint him chief of po­lice of Pasay City.  Consequently, the respondent Claudio owes the
petitioner no duty to extend to him a promotional appointment, the performance
of which may be compelled by mandamus.

ACCORDINGLY, the petition for mandamus is denied, without
pronouncement as to costs.

Reyes, J.B.L., Makalintal, and Capistrano, JJ., concur.

Fernando, J., concurs in a
separate opinion.

Dizon and
Zaldivar, JJ., dissent
in separate opinions.

Sanchez, J., concurs in the
result.

Concepcion, C.J., was on official leave.

Teehankee and Barredo, JJ., did not take part.

^[1]
L-23281, August 10, 1967,
20 SCRA 954.

^[2]
Sec. 2.

^[3] Supra,
note 1.

^[4] The
respondent Claudio likewise contends that the petitioner cannot be considered
ranking because the removal of previous incumbents of the position of deputy
chief of police in Pasay City is the subject of
pending litigations in the lower court, but for the purpose of this case, we
can regard the petitioner Basilio M. Pineda as the
duly appointed deputy chief of police as long as his appointment is not set
aside.

^[5]
Compare the following provisions of the Revised Civil Service Rules:

“As used
in this Rule, promotion means advance­ment from one position to another with an
increase in du­ties and responsibilities as authorized by law, and usually
accompanied by an increase in salary.” Rule VII, Sec. 1.

“For
purposes of this Rule, a transfer is a move­ment from one position to another
which is of equivalent rank, level or salary, without break of service, and in­volving
the issuance of an appointment.  The
transfer may be between Departments or agencies, or from one orga­nizational
unit to another in the same Department or agen­cy.” Rule IV, Sec. 21.

^[6]
66 Phil. 429, 431 (1938).

^[7]
Cf. Morfe v. Mutuc,
G.R. L-20387, Jan. 31, 1968,
22 SCRA 424.

^[8]
Annex XIII of respondent Commissioner Subido’s
Memorandum, Rollo, p. 251.

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