PEDRO JIMENEA, PETITIONER-APPELLANT, VS. ROMEO G. GUANZON, IN HIS PERSONAL CAPACITY, AND AS MAYOR, CITY OF BACOLOD, ABELARDO SUBIDO, CIVIL SERVICE COMMISSIONER AND LUIS GADOR, R…

On February 27, 1960,
Pedro Jimenea took and passed the Civil Service
Patrolman Examination held in Bacolod
City with a rating of 72%.^[1]

In the local elections held in Bacolod City
on November 12, 1963, Teofisto Cordova, the then incumbent Mayor, lost to Romeo
G. Guanzon for the office of Mayor.

On November 20, 1963,
Jimenea was appointed Second Class Patrolman (vice
Diogenes Cabiles who was recommended for confinement
at the National Mental
Hospital) in the Bacolod
Police Department by then Mayor Cordova, upon the recommendation of Col. Javelosa, Chief of Police of Bacolod
City, said appointment being characterized as “provisional”.^[2]

Jimenea took his oath of office and
commenced serving as Second Class Patrolman on November 25, 1963.

On February 7, 1964,
Mayor Guanzon brought an administrative case against Jimenea, under Rep. Act No. 557, for serious irregularity
in the performance of his duties, docketed as Adm. Case No. 14 of the Office of
the City Council, Bacolod
City.  Subsequently, however, Jimenea
was acquitted of the charge.

Mayor Guanzon on May 13, 1964 wrote the
Commissioner of Civil Service requesting for the disapproval and revocation of
the appointment of Jimenea on the grounds that his
appointment was not in conformity with the Commissioner’s Memorandum Circular
No. 35, Series of 1963,^[3]
being provisional in nature, and that there were many civil service eligibles whose ratings were much higher than that of the
appointee.^[4]
On the same date, then Acting Commissioner of the Civil Service Abelardo Subido, in a communication
denominated “First Indorsement” addressed
to the City Treasurer and the Mayor of Bacolod City, approved
as temporary the appointment of Jimenea for the
period of actual service but not beyond the date of receipt of said
communication.^[5]

Pursuant to said indorsement of
Commissioner Subido Mayor Guanzon
on May 20, 1964 informed Jimenea by letter^[6]
that his services were to cease and terminate effective at the close of office
hours of said date.  Sometime later, Mayor
Guanzon appointed Luis Gador,
a civil service eligible in Jimenea’s stead.

On July 15, 1964,
Jimenea filed a petition for mandamus and prohibition with preliminary mandatory injunction,
praying for an interlocutory order commanding Com­missioner Subido
and Mayor Guanzon to restore him to his position as
Patrolman, Second Class, of the Bacolod Police
Department and enjoining Luis Gador from continuing
in holding on to his position as Second Class Patrolman thereof.  On the same date the trial court issued an
order for Subido, Guanzon
and Gador to answers the petition within ten (10)
days from receipt of said order.

Guanzon and Gador
on July 29, 1964 filed a
motion to dismiss the petition, and on July
31, 1964 Jimenea filed his opposition
thereto.  The motion having been denied Guanzon and Gador filed their
answer on August 10, 1964.

On August 31, 1964,
Commissioner Subido filed his answer with opposition
to prayer for preliminary manda­tory injunction.

The parties submitted a stipulation of facts on December 7, 1964,^[7]
and on the same date the lower court issued an order approving the same and
requiring the parties to submit their respective memoranda within fifteen (15)
day from date thereof.

After the submission of the parties’ respective memoranda, the
lower court on April 14, 1965
rendered a de­cision finding petitioner Jimenea without
right to the remedy prayed for and ordering the dismissal of the peti­tion.

Jimenea now appeals to Us raising the
following issues:

(1)  
Was the appointment extended to petitioner-appellant
temporary or permanent?

(2)  
Did said appointment confer upon
petitioner-appellant a vested right to occupy in a permanent charac­ter the
position to which he was appointed?

Both appellant and appellees admit that
the appointment extended to the former was characterized as
“provisional”.^[8]
But it is the former’s position that Mayor Cordova
committed a mistake in making the designation and that he meant the same to be
permanent, while it is the latter’s stand that if indeed there was a mistake,
the intent of the Mayor was to extend a temporary appointment.

Art. VI, Sec. 24(c) of Rep. Act 2260 (Civil Service Act of 1959)
provides:

“(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 appointment.” (Underscoring supplied)

A perusal of the abovequoted
provision will show that a provisional appointment may be issued to a person
who has not qualified in an appropriate examination when the following
requisites concur: (a) a ‘vacancy occurs and the filling thereof is necessary
in the interest of the service; and (b) there is no appropriate register of eligibles at the time of appointment.  There is therefore merit in appellant’s
allegation that a mistake was in­deed committed in the designation of his
appointment be­cause these two requisites do not concur in appellant’s
case.  Being a civil service eligible, he
has qualified in an appropriate examination.

This being so, what then was the intention of Mayor Cordova – to
extend a permanent appointment or a tempora­ry one? This calls for examination
of the circumstances under which the appointment was issued in order to find an
index into what he meant by the word “provisional”.  For, quoting Justice Holmes in Lamar v. United
States,^[9]
“a word is not a crystal, transparent and unchanging, it is the
skin of a living thought and may vary greatly in color and content according
to the circumstances and the time in which it is used.”

Petitioner-appellant was appointed by then Mayor Teo­fisto Cordova on November 20, 1963, just a week or so after the elections wherein
he lost to the incumbent Mayor herein respondent Guanzon.  Mayor Cordova knew hat incom­ing Mayor Guanzon should be given the privilege of filling up vacant
positions in the police department.  But
there was an urgent need to fill the position left vacant by a policeman who
had to be confined at the National Mental
Hospital – there being an insufficient number of
policemen in Bacolod
City.  Thus Mayor Cordova appointed appellant but he
expressly stated that the nature of the appointment be “provisional”,
obviously to afford Mayor Guanzon a chance to retain
the petitioner or replace him with another of his confidence.  For indeed, by parity of reasoning with
appellant’s logic when he argues that “if the inten­tion of the appointing
power was to extend a temporary appointment to petitioner, it would have been
stated so in the appointing papers at the time of his appointment”, if the
intention of Mayor Cordova was to extend a perma­nent appointment to
petitioner, he would have so stated instead of characterizing appellant’s
appointment as “provisional”.

Appellant’s civil service eligibility and the permanent character
of the position filled by him, will not and cannot transform his temporary
appointment into a perma­nent one.

“Where the nature of the appointments ex­tended to petitioners
was merely temporary, the same can not acquire the character of permanence
simply because the items occupied refer to permanent positions.  What characterized an appointment is not the
nature of the item filled but the nature of the appointment extended, If such
were not the case, when there would never be temporary appointments for
permanent positions.  This is absurd.”^[10]

Since his appointment is temporary, it did not confer upon appellant
a vested right to occupy in a permanent character the position to which he was
appointed.  His civil service eligibility
will avail him none.  For a civil service
eligible who accepts a position in a tempo­rary capacity is not entitled to the
protection accorded by Republic Act No. 557^[11]
nor to the protection of security of tenure in office guaranteed by the
Constitution.^[12]
The undisturbed unanimity of the cases is that one who holds a temporary
appointment has no fixed tenure of office; his employment can be terminated any
time at the pleasure of the appointing power without need to show that it is
for cause.^[13]

Assuming arguendo that
petitioner’s appointment was permanent, it had not yet become final and thus
could not as yet vest in him any right to the protection extended by Rep. Act
557 to regular employees of the Civil Service. 
This is so because –

“All appointments made by the provincial governors, municipal
mayors and city mayors shall, after being attested to by the respective
provincial treasurer or city treasurer, be forwarded within ten days to the
Commissioner of Civil Service for review pursuant to Civil Service law and
rules.  If, within one hundred eighty
days after receipt of said appointments, the Commissioner of Civil Service
shall not have made any correction or revision, then such appointments shall be
deemed to have been properly made; x x x“^[14]

Thus, all appointments made by city mayors and attested to by
city treasurers must still be submitted to the Civil Service Commissioner for
review.  Under the latter’s power of
review, he may correct or revise such appointments submitted to him within one
hundred eighty days or six months. 
Within this period, an appointee cannot yet claim any vested right.  The Commissioner, therefore, acted well
within the scope of his powers and prerogatives when within the prescribed 180-day
period he corrected the appointment made by Mayor Cordova from
“provisional” to “temporary”, to reflect its true nature as
intended, and terminated appellant’s appointment.  And as explained above, since appellant’s
appointment was temporary, he was “not entitled to the protection afforded
by Rep. Act 557 to members of the corps of provincial guards, city police and
municipal police.”^[15]

WHEREFORE, the decision appealed from is hereby affirmed,
with costs against petitioner-appellant.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and Fernando, JJ.,
concur.

^[1]
Annex “B”, Petition, pp. 14-18, Record on Appeal.

^[2]
Annex “A”, Petition, pp. 12-14, Record on Appeal.

^[3]
Annex “3” of respondent Subido’s Answer,
pp. 49-50, Record on Appeal.

^[4]
Annex “2” of Commissioner’s Answer, p. 48, Record on Appeal.

^[5]
Annex “D”, Petition, pp. 19-20, Record on Appeal.

^[6]
Annex “E”, Petition, pp. 20-21, Record on Appeal.

^[7]
Pp. 50-55, Record on Appeal.

^[8] See
Par. 1 of Stipulation of Facts, p. 51, Record on Appeal.

^[9]
240 U.S. 60,
65; 60 L. ed. 526, 528, 36 S. Ct. 255; underscoring supplied.

^[10] Villanosa, et al. v. Alera,
et al., L-10586, May 29, 1960;
and Elegida et al. v. Gacutara,
et al., L-19588, Aug. 29, 1957;
Quitiquit v. Villacorta,
L-15048, Apr. 29, 1960.

^[11] Hortillosa v. Ganzon,
L-11169, Jan. 30, 1959.

^[12] Taboada v. Municipality of Badian,
et al., L-14604, May 31, 1961.

^[13] Hojilla v. Mariño, et al.,
L-20574, Feb. 26, 1965; Aguila v. Castro, et al., L-23778, Dec. 24, 1965; Serrano, et al. v.
National Science Development Board, et al., L-19349, Mar. 31, 1964; Cuñado
and Vallecera v. Gamus,
et al., L-16782-83, May 30, 1963;
Taboada v. Mun. of Badian, supra; Azuelo
v. Arnaldo, et al., L-15144, May 26, 1960;
Madrid v. Auditor General, et al., L-13523, May 31, 1960 (citing
Mendez v. Ganzon, et al., L-10483, Apr. 12,
1957; University of the Philippines, et al. v. Court of Industrial
Relations, et al., L-15416, Apr. 28, 1960; Agapuyan v.
Ledesma, L-10535, Apr. 25, 1957); Quitiquit
v. Villacorta, supra; Montero,
et al. v. Castellanes, L-12694, June 30, 1960;
Ferrer v. De Leon, L-15076, Aug. 29, 1960 (citing
Austria v. Amante, 79 Phil. 780); Villanosa, et al. v. Alera,
et al., supra; Elegida v. Gacutara, supra; Cuadra
v. Cordova, etc., L-11602, Apr. 21, 1958, 54 O.G. 8063; Castro v.
Solidum, L-7750, June 30, 1955.

^[14]
Sec. 20, Rep. Act 2260; Sec. 8, Rep. Act 2264; see also Rule VI,
Revised Civil Service Rules.

^[15] Hortillosa v. Ganzon, supra.