ENRIQUE SISON, MUNICIPAL MAYOR, BAMBAN, TARLAC AND PABLO L. SANTOS, JR., AS ACTING CHIEF OF POLICE, BAMBAN, TARLAC, PETITIONERS AND APPELLANTS, VS. THE HON. JUAN PAJO, EXECUTIVE…

Appeal by petitioners Enrique
Sison and Pablo L. Santos, Jr. as Acting Municipal
Mayor and as Acting Chief of Police, respectively, of Bamban, Tarlac, from the decision
of the Court of First Instance of said province in Civil Case No. 3303,
“dismissing the petition for injunction; declaring the removal of respondent
Bonifacio Lacanlale as
Acting Chief of Police of Bamban, Tarlac, on June 30, 1957, as illegal, as well as the
appointment in his stead of petitioner Pablo L. Santos, Jr.; and ordering the
reinstatement of Bonifacio Lacanlale as Acting Chief of Police of Bamban, Tarlac, effective June 30,
1957 with the incident of payment of back salaries by the municipality of Bamban.”

Appellants filed this action for
injunction, with a prayer for a writ of preliminary injunction, on September 8,
1958 against appellees Juan Pajo, Executive Secretary, Arsenio
Lugay, Provincial Governor of Tarlac, and Bonifacio Lacanlale, relieved Acting Chief of Police of Bamban, Tarlac, to restrain them
from compelling appellant Enrique M. Sison to
reinstate Bonifacio Lacanlale as Acting Chief of Police of Bamban, Tarlac, and from filing
charges, administrative or otherwise, against said appellant for
insubordination.

The facts, which are not
disputed, are as follows: On January 1, 1953, Enrique Sison, then Mayor of Bamban, Tarlac, appointed Bonifacio Lacanlale, a veteran and non-civil service eligible, as
Acting Chief of Police of said municipality, with a salary of P1,080.00 per
annum (Exhibit A), and reappointed him on April 1, 1955 (Exhibit 1-A). On June
29, 1957, Mayor Sison recalled and cancelled Lacanlale’s appointment as Acting Chief of Police effective
4:00 o’clock in the afternoon (Exhibit B) and at the same time designated
Patrolman Pablo L. Santos, Jr., likewise a veteran and non-civil service eligible, in his
place.

On June 29, 1957, Lacanlale sought the opinion of the Commissioner of Civil
Service on the legality of the recall and cancellation of his appointment, which
query was indorsed by the Commissioner to Mayor Sison,
for comment. On October 22, 1957, the Mayor commented that since Lacanlale was appointed by him in acting and temporary
capacity and was found to be inefficient and incompetent in discharging his
official duties and lie taw l081 his confidence and trust in him, it was best
for the inters of the service that his appointment be recalled. (pp. 3-4 record on appeal).

On July 9, 1957, Lacanlale likewise wrote the President asking for his
reinstatement and for the investigation of Mayor Sison. The Executive Secretary, on July 19, 1957, referred
the request to Governor Arsenio Lugay of Tarlac for investigation
and appropriate action (Exhibits 5 and 5-A).

On January 8 and 27, 1958, the
Provincial Board of Tarlac conducted an investigation,
and both Mayor Sison and Lacanlale testified before the Secretary of the Board. Upon
termination of the investigation, the Board rendered its decision declaring the
separation of Lacanlale to be illegal, and recommended
to the Office of the President his immediate reinstatement. (Exhibits 6, 6-A and 6-B).

By way of 6th indorsement dated April 28, 1958, the Executive Secretary
directed the Governor of Tarlac to request Mayor Sison to reinstate Lacanlale
immediately as the latter’s relief by Pablo Santos, Jr., a non-civil service
eligible and veteran, was illegal under Republic Act No. 65, as amended, and
advising the Mayor to conduct administrative proceedings against Lacanlale under Republic Act No. 557. Mayor Sison refused to reinstate Lacanlale; instead, on May 26, 1958 he wrote the President,
thru the Provincial Governor of Tarlac, asking for the
reconsideration of the order of reinstatement. This was denied on June 12, 1958
by the Executive Secretary who reiterated his indorsement dated April’28, 1958, directing immediate
reinstatement of Lacanlale. (Exhibits D, E and F).
Inspite of a letter of the Provincial Governor
threatening to charge him with insubordination should he fail to comply with the
order of reinstatement, Mayor Sison failed and refused
to reinstate lacanlale. (Exhibits F, F-l, H and 1),
and later filed this action.

On September 13, 1958, the
Provincial Governor of Tarlac filed his opposition to
the petition for writ of preliminary injunction, while Lacanlale filed his answer on September 23 wherein, aside
from adopting in toto the opposition of the
Governor, claimed moral and exemplary damages and attorney’s fees amounting to
P11,000.00. The Executive Secretary’s answer averred
that the appointment of petitioner Santos, Jr. was void ab initio, and by way of
affirmative and special defense invoked the provisions of Republic Act No. 65,
as amended by Republic Act Nos. 154 and 1363 which gives preference and security
to veterans, and Provincial Circular (Unnumbered) dated April 3, 1954 relative
to the removal and suspension of subordinate officials in the local governments.
On October 4, 1958, the Executive Secretary also filed his opposition to the
issuance of a writ of preliminary injunction.

On October 20, 1958, upon
appellants’ filing a bond of P500.00, the lower court issued a writ of
preliminary injunction restraining appellees from
compelling Mayor Sison to reinstate Lacanlale as Acting Chief of Police of Bamban, Tarlac, and from filing
administrative charges against him (Sison) for
insubordination, but on- March 21, I960, after hearing the parties, said Court
rendered the appealed judgment.

On April 7, 1960 appellants moved
for a new trial on the ground of newly discovered evidence consisting of the
passing by Santos, Jr. on January 16, 1959 of the civil service examination for
patrolman given on October 27, 1956 with a rating of 73.33% (Exhibit N) and his
reappointment as Chief of Police of Bamban, Tarlac, at the rate of P1,320.00,
promoted to P1,440.00 per annum on January 17 and July 1, 1959, respectively
(Exhibits O and S). These appointments were eventually authorized as temporary
by the Commissioner of Civil Service “without prejudice to the outcome of the
decision in the Civil Case No. 3303 for injunction” and approved on
September 1,
1959 by
Assistant Executive Secretary Enrique C. Quema
(Exhibits 16, 17, N, O, P, Q and R). On April 29,
1960 the
Court reconsidered its decision and granted the new trial. Appellants adduced
their newly discovered evidence, but the Court, considering it not sufficient to
alter the result, rendered judgment reiterating its original
decision.

On December 22,
1960, the
lower Court issued a writ of execution of the judgment, pendente lite, which
was stayed on January 3,
1961 upon
appellants filing a supersedeas bond in the amount of
P7,766.66. An additional bond of P3,000.00 was posted on August 24,
1964.

The main point to be determined
now is whether Lacanlale’s removal as acting Chief of
Police of Bamban, Tarlac, by
Mayor Enrique Sison was legal or
not.

Appellants contend that, since
Lacanlale’s appointment was only in an acting
capacity, the same could be terminated at the pleasure of the appointing power
(the Mayor) on such grounds as loss of confidence or incompetence and
inefficiency.

Section 1 of Republic Act No.
1363 enacted on June 18,
1955
provides for the preference to be given to veterans in the matter of appointment
to positions in the government, as follows:

“Section
1. The policy
of the Government is to give preference, other considerations being
approximately equal, to persons who are veterans under section four of this
Act.”

Section 2 penalizes the violation
of the provisions of the Act, while Section 4 defines the term “veterans”.
Section 5 provides that in order to enable a veteran to obtain preference, it
must be shown that he has approximately the same qualifications as other
applicants, and further states that it is not intended that a veteran shall have
priority over civil service eligibles, unless he
himself is of the same or higher civil service
eligibility.

The replacement on June 29, 1957
of Bonifacio Lacanlale, a
non-eligible but veteran, by Pablo Santos, Jr., likewise a veteran and
non-eligible is unlawful! because the former, although appointed in an acting
capacity, was entitled, by reason of the preference established by the law in
force at the time of his appointment (Republic Act No. 65, as amended by
Republic Act No. 154), to keep his position until the availability of a civil
service eligible was duly certified by the Commissioner of Civil Service. If the
preference accorded to a veteran were to be confined to appointment and
promotion and does not give him the right to keep the position he is holding
until the availability of a civil service eligible is certified by the
Commissioner of Civil Service, then a veteran would be in no better situation
than a non-eligible and non-veteran—which should not be the case. His
appointment may be cancelled and he” may be removed by competent authority, only
for cause, as when the Commissioner of Civil Service makes such
certification.2

In the recent case of Gonzales
vs. Aldana, et al., 107 Phil, 754, interpreting
Republic Act 1363, We said in
part:

“* * *. In other words, the
Government takes the position that in getting appointments to the positions
occupied by petitioners, they could invoke the provisions of Republic Act No.
1363, for being veterans, but after the appointment, said law ceases to give
them preference and protection.

We are unable to agree to the
above proposition. Section 1 of the Act aforementioned speaks of preference in
general and although the other sections, such as. Sections 2 and 5, speak of
appointments, our impression is that the preference contemplated by the law is
not only an appointment whereby a veteran is accepted in the service of the
Government but also his enjoyment of the benefits, rights and emoluments
accruing from stud appointment. It would certainly be unjust as well as
illogical if after appointing a non-veteran to a Government position today, he
may be replaced and dismissed tomorrow, when there are non-veterans occupying
other and similar positions who could and should be
replaced first. In the present case, petitioners are veterans occupying similar
positions with five other non-veterans. The seven of them are non-civil service
eligibles. As already stated, the petitioners have
approximately the same qualifications as the other five, at least the two next
preceding them in the objective ranking. Consequently, the preference accorded
to veterans is still applicable.

* * *. All their wish and desire
is that they be allowed to retain their positions and continue serving the
Government. By interpreting the Jaw in this manner, namely, giving preference to
a veteran, not only in the appointment hut also in keeping the position to which
he is appointed, we would be following and implementing the intention of the
Legislature. As the lower court, citing Section 1 of Republic Act No, 1363
rather vehemently observed:

‘The aforequoted provisions of law should be given full force and
effect. The intention of the framers of the law to reward those who have risked
their lives and sacrificed much in order that we could be freed from Japanese
domination should not be implemented with empty promises and hollow gestures. We
should give what is due the veterans as contemplate)I
by law. For that is the only way we could repay and show our
gratitude to the heroes of the last world
war.’”

As stated heretofore, the
Provincial Board of Tarlac, as directed by the then
Executive Secretary, conducted an Investigation. Its finding was that inspite of the 35 listed unsolved crimes during Lacanlale’s incumbency as Chief of Police of Bamban,
Mayor Sison filed no case, administrative or
otherwise, against him under Republic Act No. 557 (Exhibits 6, 6-A, and 6-B).
The charge of inefficiency and incompetence as justification for his summary
removal is, therefore, clearly unfounded.

Appellants’ contention in their
third assignment of error that the subsequent reappointment of Pablo Santos, Jr.
on January 17, 1959 after he had passed and qualified in the civil service
examination for patrolman on January 16, 1950 was lawful and had the effect of
validating, retroactively, the unlawful removal of Lacanlale is without merit. The latter’s Reparation from the
service being illegal, Santos, Jr. could not have validly replaced him as acting
Chief of Police in 1957 or 1959, because, by legal fiction, when an employee is
suspended or dismissed without complying with the procedural requirements of
Republic Act No. 557, his position is deemed to have never been legally
vacated.

Neither can the
eligibility acquired by Santos, Jr., nor his temporary reappointment approved on
January 17, 1959 by the Executive Secretary and the Commissioner of Civil
Service subject to the result of the present case cure the invalidity or
illegality of Lacanlale’s removal
or validate
Santos’ appointment in his instead. The former’s
replacement by an eligible must be made by competent authority and only after
the Commissioner of Civil Service has certified that there is such an eligible
available.(3)

The case of
Booc vs. Osmeña, Jr. (G. R.
No. L-14810,
May 31, 1961) cited by appellants in their brief is not applicable to the
present because the facts involved therein are different from those of the
latter. Booc was a laborer who, unlike Lacanlale, did not enjoy preference as a veteran. Lacanlale’s appointment was in the nature of one to List
until he was replaced by an eligible certified by the Commissioner of Civil
Service, whereas that of Booc was subject to the
condition that his employment would cease automatically at a given period. Booc was properly charged administratively, investigated and
found guilty of dishonesty and serious misconduct in office, while Lacanlale was investigated but
exonerated.

For the same reason, the case of
Manigbas vs. do Guzman et al., 94 Phil. 245 cited by
appellants is not applicable, the peace officer involved therein not being a
veteran.

Appellants likewise claim that
the lower court erred in ordering not only Lacanlale’s
reinstatement but also the payment of his back salaries as Chief of Police of
Bamban, Tarlac, it appearing
that said municipality was not impleaded in this case.
This contention is without merit.

It is already settled in this
jurisdiction that an illegal removal of a public official does not render his
position vacant (Fernandez et al., vs. Cuneta et al.
80 Phil., 427.) No. Inasmuch as, for all legal intents and purposes, Lacanlale is deemed to have continued in office even after
his illegal removal therefrom, his right to draw the
corresponding salary can not be questioned. Payment of back salaries is merely
incidental to, and follows reinstatement. (Batungbakal vs. National Development Company et al., 98
Phil., 182; Off. Gaz., 2290, June 1953; Tan vs.
Jimenez, 107 Phil. 17).

That the municipality of Bamban, Tarlac was not by name
impleaded in this case does not affect Lacanlale’s right to the payment of back salaries, as We have already ruled in several cases. (
Mission vs. del Rosario, 94 Phil., 483.,
50 Off. Gaz., 1571; Abella
vs. Rodriguez, 95 Phil., 289., 50 Off. Gaz., 3090; Uy vs. Rodriguez, 95 Phil., 493; 50 Off. Gaz., 3574; Meneses vs. Lacson, G. R. L-7025,
October 01, 1955; and Mangubat vs. Osmeña, G. R. No. L-12837, April 30, 1959). The
following considerations We made in the last case are
particularly applicable to the present:

“The necessity of making the City
a respondent herein is based upon its right to defend itself, as demanded by the
requirements of due process. However, these requirements have been substantially
complied with in, the case at bar. The parties herein have handled the case, and
the same was heard and decided in. the lower court, as if the City had been
named respondent in the pleadings. The officer required by taw, ‘to cause to be
defended all suits against the City, namely, its Mayor, (Sec. 8, Commonwealth
Act No. 58), is respondent in his official capacity. The officer charged with
the duty to represent the City in all civil cases wherein the City * * is a
party’—to wit, its city attorney (Sec. 17, Commonwealth Act No. 58)—counsel for
respondents herein. In addition thereto, the auditor, the treasurer, and even
the municipal board of the City of Cebu, are parties
respondents.

There is no reason to believe
that these officers and the City Mayor would have exerted greater effort, than
those already displayed by them in protecting the interests of the City of Cebu, it is only logical to expect that, having been
individually named as respondents, said officers, must have taken as much
concern, if not more, in warding off petitioner’s claim. Under the foregoing
circumstances, we would be subordinating the substance to the form if the action
for mandamus—insofar as the claim for back salaries is concerned—were cither
dismissed, or remanded to the lower court, for the corresponding amendment of
the pleading and a repetition of the proceedings held for the last five (5)
years, in older to reach the same decision rendered by the lower court and the
panic conclusions set forth in this decision, as regards the substantive rights
of the parties. It is our considered opinion, therefore, that the ends of
justice and equity would, be served best if the inclusion of the City of Cebu, as one of the respondents herein were considered a
mere formality and deemed affected, as if a formal amendment of the pleadings
had been made.”

On November 19, 1964, there was
filed in this case a motion alleging that on the 4th of said month, appellee Bonifacio Lacanlale was murdered in his hometown of Bamban, and that at the time of his demise, he left as
heirs, his widow, Lolita Sibal, and his children named
Juan, Arturo, Abel, Jessie, Ruth, Elisa, and Bonifacio, and it was prayed therein that said heirs be
substituted in place of said deceased. We find this motion to be well founded,
and said heirs are hereby substituted in his place. However, to avoid any
possible question as to whether they are the only heirs entitled to inherit from
the deceased, payment of the back salaries provided for in the appealed decision
should be made only to the judicial administrator of his estate duly appointed
by a competent court.

Wherefore, the appealed decision
being in accordance with law and the evidence, the same is affirmed, with the
sole modification indicated in the preceding paragraph.

Bengzon, C. J., Bautista Angelo, Regala, Makalintal, Bengzon, J. P. and Zaldivar, JJ.,
concur.