MAJOR VITALIANO B. VALDES, PETITIONER-APPELLANT, VS. HON. LUCIO G. GUTIERREZ, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE MUNICIPALITY OF MALABON, RIZAL, AND THE MUNICIPAL COUNCIL …

Direct appeal to this Supreme Court against a
judgment of the Court of First Instance of Rizal (Quezon City branch) in its Civil Case No. Q-9502, dismissing the
petition filed by appellant Valdes for a writ of mandamus to compel the Mayor
and Council of the Municipality of Malabon, Rizal, to reinstate appellant as Chief of Police and to pay
him back salaries during his period of suspension until reinstated.

The main facts are not controverted.  Appellant Vitaliano
B. Valdes was appointed by Mayor Gutierrez as Chief of Police of Malabon, Rizal, effective on March 12, 1962, with a compen­sation
of P3,300.00 per annum.  This appointment was attested as provisional
by the Commissioner of Civil Service with the qualification “to continue
until such time as the services of the person possessing appropriate
eligibility and qualifications shall have been secured.”^[1]
It is not disputed that the appointee was not a civil service eligible, though
he is a World War veteran.

On June 13, 1962,
appellee Mayor of Malabon
suspended petitioner and three patrolmen because they were charged with murder
in an information filed by the Provincial Fiscal in
Criminal Case No. 11538 of the Court of First Instance of Rizal.^[2]

Almost three months later, on September 10, 1962, the appellee
Mayor appointed Pedro P. Cruz, Jr., as Chief of Police of Malabon
“vice Vitaliano B. Valdes, a non-eligible, whose
services were terminated.”^[3]
While this appointment was also attested as provisional by the Civil Service
Commissioner, Cruz was promoted in salary in July, 1964, and the Civil Service
Commissioner transmitted his promotional appointment to the Rizal
provincial treasurer with the statement that “the records show that Mr.
Cruz qualified in the Chief of Police (Municipal Entrance) examination on November 23, 1963.”^[4]

On May 25, 1965,
the appellant Valdes was acquitted of the charge of murder in the criminal case
previously mentioned.^[5]
Thereafter, he demanded in writing that he be reinstated and paid his back salaries,
invoking the provisions of section 4 of Republic Act 557.  Both the Provincial Fiscal of Rizal and the Commissioner of Civil Service ruled against
the reinstatement sought, for the reason that appellant’s appointment being
provisional, it is terminable at pleasure of the appointing power.^[6]

It further appears that sometime later, the Commissioner of Civil
Service cancelled the eligibility of Chief of Police Pedro P. Cruz, Jr.,^[7]
but the latter obtained a writ of injunction from the Court of First Instance
of Rizal (Caloocan City)
against the implementation of the order cancelling
the eligibility of Cruz.^[8]
There is no proof that the injunction has been set aside.

On September 28, 1965,
Valdes filed a petition in the Court a quo for a writ of mandamus
to compel respondents, Municipal Mayor and Municipal Council of Malabon to reinstate him as Chief of Police and pay him
back salaries during his suspension.  The
Provincial Fiscal, in representation of the respondents filed an answer,
pleading that the appointment of Valdes was void because it was not approved by
the municipal council as required by sec­tion 2259 of the Revised
Administrative Code; that, at any rate, Valdes not being a civil service
eligible, his appointment was only temporary and terminable at any time by the
appointing power and that it was so terminated with the appointment of Chief of
Police Pedro P. Cruz, Jr.; and that reinstatement of petitioner (now appel­lant
herein) was not possible in view of the writ of injunction issued against the Civil
Service Commissioner and the Mayor of Malabon.

Premises considered, the Court of First
Instance of Rizal found that the petitioner had no
valid cause of action, and dismissed the petition for mandamus.  Whereupon, Valdes appealed
to this Court.

We must agree with the Court below that mandamus does not
lie.  It is a rule well-entrenched in
this jurisdiction that mandamus requires a showing of clear and certain right,
and it never issues in doubtful cases.

“And where the legal rights of the
petitioner, as in the case at bar, are not well defined, clear and certain, the
petition for mandamus must be dismissed.” (Aprueba et al. vs. Ganzon,
L-20867, Sept. 3, 1966).^[9]

In the present case, several factors militate against the re­instatement
sought by appellant:

(1) His appointment as Chief of Police was made without the consent
of the municipal council, as required by section 2259 of the Administrative
Code; hence, it was not a valid appointment.

“SEC. 2259.  Appointment of members
of police force.  – The chief of
police and other members of the force shall be appointed by the mayor, with the
consent of the municipal council.  In
case of disagreement between the mayor and the municipal council regarding the
appointment of the chief of police, if such disagreement extends over more than
three months after the submission of the nomination by the mayor, the
provincial board shall take action and decide such disagreement, and its
decision shall be final.”

(2) Appellant’s appointment as Police head, even if valid, was
temporary:  being a non-eligible, Valdes
could not be permanently appointed to a position in the classified
service.  The appointing power,
respondent Mayor, could validly terminate Valdes’ appointment, and did so
terminate it upon the appointment of Pedro P. Cruz, Jr., “vice Vitaliano B. Valdes, a non-eligible whose services were
terminated.” While appellant claims that he was not given termination
notice, his bare assertion to that effect does not suffice to overcome the
presumption of regularity and performance of what the law prescribes.

Nor can Valdes find refuge in the proviso attached to his
appointment (Annex A, Petition) that the same was “to continue until such
time as the services of a person possessing appropriate qualifications shall
have been secured.” Obviously, such proviso could not have been intended
to apply to a case where the appointee is indicted for murder, and the issue of
the case is not foreseeable.  For the
municipality could not, for reasons readily seen, retain a murder indictee as its Chief of Police; and upon the other hand,
it could not leave the police force indefinitely without a chief.  The appointment of a successor thus became
imperative, urgent and justified under the circumstances.  The foregoing considerations likewise rebut
the preference allegedly possessed by appellant as World War veteran.

(3)     As noted before,
appellant’s successor, Pedro P. Cruz, Jr., was certified by the Civil Service
Commission as eligible for Chief of Police in July, 1964, and his appointment
was thereby purged of defects nearly one year prior to appellant acquittal in
the murder case.  Hence, appellant could
no longer seek re­instatement, since the position was validly held by another,
who was a civil service eligible.

(4)     While the Civil Service Commissioner attempted to cancel the
eligibility of the incumbent Cruz, such action could not be implemented in view
of the injunction issued by the Rizal (Caloocan) Court of First
Instance.  This injunction, in effect,
blocked the reinstatement of Valdes, even granting that he was entitled
thereto.  There is no showing that the
injunction has been lifted or dissolved.

(5)  Appellant’s contention
that he was entitled to reinstatement and back salaries under section 4 of
Republic Act No. 557 is unavailing, for it has been consistently ruled that
Republic Act 557 can only be invoked by civil service eligibles
(Amora vs. Bibera [1956] 99
Phil. 1, 10; Cayabyab vs. Cayabyab
[1957] 101 Phil. 682, 683, and cases therein cited; Quiatchon
vs. Villanueva, 101 Phil. 990, 995-996).

“The petitioner who is not a civil service eligible can not
invoke the protection afforded by Republic Act No. 557, because it can only be
invoked by civil service eligibles” (Cayabyab vs. Cayabyab, supra.).  “The latter (non-eligibles)
can not successfully invoke the provisions of Republic Act No. 557, as the Act
guarantees the tenure of office of provincial guards and members of city and
municipal police who are eligibles.  Non eligibles do
not come under the protection of the Act”. 
(Amora et al. vs. Bibera
et al., supra.)

Appellant invokes People vs. Bautista, 96
Phil. 43, wherein it was ruled that under section 4 of Republic Act No. 557,
the acquittal of members of the municipal police charged with rape ipso facto
entitles them to reinstatement and payment of their salary during
suspension.  In view of the rulings that
Republic Act No. 557 can not be invoked by non-eligibles,
and does not protect them, the People vs. Bautista
doctrine must be interpreted as covering only members of police forces who are
civil service eligibles.  There is nothing in the decision itself that
those ordered reinstated by it were non-eligibles.

IN VIEW OF THE FOREGOING, the decision appealed from is
affirmed.  Costs
against appellant Valdes.

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

^[1] Exh. 9-A, Folder of Exhibits.

^[2] Petition, Annex A.

^[3] Exhibit 3.

^[4] Exhibit 4.

^[5] Petition, Annex D.

^[6]
Exhibits 1 and 2, Folder of Exhibits, pp. 43 and 47.

^[7] Exhibit 5.

^[8] Exhibit 7.

^[9]
Also Hodges vs. Ganzon, L-18086, Aug. 31, 1964; Villamor
et al. vs. Lacson, L-15945, Nov. 28, 1964; Alzate
vs. Aldana, L-18085, May 31, 1963.