JOSE GONZALES, ET AL., PETITIONERS AND APPELLEES, VS. BENIGNO ALDANA, ET AL., RESPONDENTS AND APPELLANTS.

This is an appeal by respondents Benigno Aldana, Vitaliano
Bernardino and Igmedio Parcon, in their capacities as Director of
Public Schools, Assistant Director of Public Schools and City
Superintendent of Schools, Iloilo City, from the decision of the Court
of First Instance of Iloilo, presided by Judge Jose R. Querubin, dated
November 8, 1957, “restraining respondents from dismissing the
petitioners and replacing them with civil service eligibles until after
the five temporary industrial arts teachers in the Division of Iloilo
City Schools shall have been first dismissed and replaced by civil
service eligibles.” The appeal was first taken to the Court of Appeals,
which after studying the case, certified the appeal to us on the ground
that only questions of law were involved.

The facts of the case are not disputed. The narration of facts made
by the appellants in their brief, accepted by the appellees and adopted
by the Court of Appeals in its findings of fact, which we also adopt,
is as follows:

“Petitioners are both civil service non-eligibles
who were given temporary appointments sometime in 1952 as industrial
arts teachers in the Division of City Schools of Iloilo. They were
assigned to the La Paz Elementary School of Iloilo City (par. Ill,
petition; par. 2, answer; par. X, stipulation; pp. 4, 10, t. s. n.,
Exh. A, p. 31; Exh. B, p. 32, Exh. C, p. 33, rec.).

“In the
Division of City Schools of Iloilo City, there were five other
temporary industrial arts and garden teachers (par. 2, stipulation,
par. IX, par. 8, answer; Exh. A, p. 31, rec.; Exh. B, p. 32, rec.; Exh.
C, p. 33, rec.). Of the seven, only petitioners are veterans of World
War II, petitioner Adriano Alcazar having been honorably discharged
from the United States Army on April 8, 1946 and petitioner Jose
Gonzales on February 15, 1946 (par. 3, stipulation; Exh. D, p. 34,
rec.; Exh. D-1, p. 35, rec.; Exh. E, p. 36, rec.; Exh. M, pp. 6, 9, 11,
t. s. n.).

“On or about June 5, 1957, petitioners learned
that there was a plan to remove them from their positions (p. 4,
t.s.n.). So they went to see respondent Iginedio Parcon, City
Superintendent of Schools to find out the reasons why they were being
replaced, Respondent Parcon told them that there were civil service
eligibles who were going to take their places (pp. 4, 20, t.s.n.). As
suggested by respondent Parcon petitioners requested the Secretary of
Education to retain them in a letter dated June 5, 1957 invoking the
provisions of Republic Act No. 1363 giving preference to war veterans
in appointments to government positions (Exh. H, p. 39, rec.; pp. 5,
10, t.s.n.). Instead of a reply from the Secretary of Education
petitioners were informed on August 8, 1957 by respondent Vitaliano
Bernardino, Assistant Director of Public Schools, that petitioners
could be replaced by civil service eligibles who had experience in
industrial arts teaching (Exh. 1, p. 40, rec.; p. 5, t.s.n.).

“Petitioners
also wrote the Commissioner of Civil Service about their case. The
Commissioner of Civil Service endorsed the matter to respondent
Director of Public Schools for comment (Exh. J. p. 42, rec.; p. 6,
t.s.n.).

“Respondent Parcon consulted respondent Director of
Public Schools Benigno Aldana, on the case of petitioners on June 10,
1957 (p. 19, t.s.n., Exh. I, p. 53, rec.) The respondent Director
sustained Parcon’s theory that petitioners could be validly replaced by
civil service eligibles (p. 21, t.s.n.).

“In the objective
ranking of the seven Industrial Arts and garden teachers as of June 5,
1957, approved by their principal, petitioners Jose Gonzales and
Adriano Alcazar ranked sixth and seventh respectively, (par. 5,
stipulation, Exh. G, also Exh. 16, p. 7; Exh. P, p. 40; Exh. Q, p. 40;
Exh. 2, p. 54, rec.; Exh. S, p. 55, rec.; Exh. 4, p. 56, rec.; Exh. 5,
p. 57, rec.; Exh. 6, p. 58, rec.; Exh. 7, p. 59, rec.; Exh. 8, p. 60,
rec.; Exh. 9, p. 61, rec.; pp. 12, 15, 22, t.s.n.). The factors
considered in the ranking were educational qualification, experience,
service status or eligibility and efficiency (p. 12, t.s.n.). It was on
the basis of their low ranking that petitioners were the ones picked by
respondents to be replaced by civil service eligibles (p. 23, t.s.n.).

“Petitioners
were formally notified on August 26, 1957, through the 5th indorsement
of respondent Parcon dated August 23, 1957, of their replacement by
Esteban Estuche and Rex de Leon, both civil service eligibles (par. 6,
stipulation; par. VII, petition; par. 6, answer; Exhibit K, pp. 43-44.
Exh. L, p. 45, rec.; Exh. K, p. 52, rec.; p. 3, t.s.n.).

“Despite
receipt of the said indorsement, petitioners refused to leave the
service (par. VIII, petition; par. 7, answer; Exh. L, p. 45, rec.).
(pp. 2-5, brief).”

The principal question to be decided is whether or not respondents
may replace petitioners who are war veterans with civil service
eligibilities, when at the time, there were nonveteran temporary
appointees who could be replaced first.

Section 1 of Republic Act No. 1363 expresses the purpose of the Jaw giving preference to veterans. It reads:

“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 5 of Republic Act No. 1363 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 that it
is not intended that a veteran shall have priority over civil service
eligibles, unless he him self is of the same or higher civil service
eligibility Petitioners Gonzales and Alcazar are not civil service
eligibles, but they claim that they had approximately the same
qualifications as the other five non-veterans who are occupying similar
positions. It is true that in the objective ranking of industrial arts
teachers such as are the two petitioners and five other non-veterans
occupying similar positions, Gonzales and Alcazar occupy the sixth and
seventh positions, with ratings of 51.4 and 50.63, respectively, while
those occupying the fourth and fifth have 51.44 and 51.172,
respectively. As the trial court observed, “the difference in scoring
between the petitioners and the next two temporary teachers in the
order of ranking does not exceed one percent. Therefore, the
petitioners have ‘approximately the same qualifications’ as the rest of
the five temporary teachers.” We agree with said observation of the
lower court.

The next point for determination is the contention at the Solicitor
General that Republic Act No. 1363 “refers only to cases where an
appointment is yet to be made, but not to cases where the non-civil
service eligible veteran is already occupying the position, but is to
be replaced by a civil service eligible.” 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 said 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.

In support of his contention that the law giving preference, to
veterans applies only to appointments but not to cases where the
non-veteran is already occupying a position, the solicitor general
cites interpretative order no. 130, issued on July 18, 1955, by the
president, implementing the law, wherein section 8 thereof says, “the
preference herein granted shall not apply to promotions and transfers
nor shall it apply to positions which have been declared policy
determining, primarily confidential or highly technical, pursuant to
section 671 (1) of the administrative code.” the interpretative order,
in our opinion, rather strengthens our position for it manifestly
contemplates a situation where a veteran is already appointed, and that
the preference he enjoys and continues to enjoy as a veteran, does not
extend to promotions and transfers, etc.

The positions occupied by the petitioners are neither policy
determining, primarily confidential, nor highly technical. Furthermore,
they are not asking for any promotion or transfer. All their wish and
desire is that they be allowed to retain their positions and continue
serving the Government. By interpreting the law in this manner, namely,
giving preference to a veteran, not only in the appointment but 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 contemplated by law. For that is the only
way we could repay and show our gratitude to the heroes of the last
world war.”

We find it unnecessary to discuss the other point raised in the
appeal, namely, that petitioners have not exhausted the administrative
remedies provided by law. Suffice it to say that when petitioners wrote
to the Commissioner of Civil Service and to the Secretary of Education,
and they failed to obtain the relief sought, and instead the Director
of Public Schools threatened to replace them, they had already given an
opportunity to these high officials to act upon their petition for
relief, which practically, in our opinion, is equivalent to an
exhaustion of the administrative remedies provided by law.

In view of the foregoing, the appealed decision is hereby affirmed. No costs.

Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.