HON. ANTONIO J. VILLEGAS, IN HIS CAPACITY AS MAYOR OF MANILA, AND GERARDO G. TAMAYO, IN HIS CAPACITY AS CHIEF OF POLICE OF MA­NILA, PETITIONERS, VS. HON. ABELARDO SUBIDO, IN HIS…

Petition filed by Antonio J. Villegas, as Mayor of Manila, and
Gerardo G. Tamayo, to whom said Mayor had extended an
appointment as Chief of Police of said city, for mandamus to compel the
respondents City Auditor and City Treasurer to approve, pass in audit and pay
said pe­titioner Tamayo’s salaries as such Chief of
Police without regard to the negative action taken on his said appoint­ment by
the respondent Commissioner of Civil Service and for prohibition to enjoin the
latter from interfering with said appointment, except to ministerially
record and note the same, and/or enforcing his said negative action thereon,
this being allegedly without or in excess of jurisdiction or a grave abuse of
discretion.  Only the respondent Com­missioner
has filed an answer, the other two respondents having limited themselves to
making manifestations to the effect that they are neither supporting nor
contesting the questioned appointment.

From the myriad of facts
alleged by the parties, only the following undisputed ones are material to the
proper disposition of this case:

On September
5, 1969, a month after
Republic Act 6040, the latest amendment to the Civil Service Act of 1959 took
effect, Mayor Villegas extended to petitioner Ta­mayo
a second appointment as permanent
chief of police of Manila effective August 4, 1969.^[1] In his letter of trans­mittal of said
appointment to respondent Commissioner “for notation and record of that
Commission”, the Mayor stated:

“Section 3 of Republic Act No. 6040 amended Section 5 of the
Civil Service Act of 1959 (Rep. Act 2260) by provid­ing that ‘heads of
departments created in charters of cities’ and ‘officers and employees
appointed to positions for which the law prescribes specific special
qualifications for appointment’ shall likewise be embraced in the
non-competitive service.  [Sec. 5 (f) and
(i), Rep. Act 2260 as amended by Rep. Act 6040]

x        x          x          x          x          x

“Hence, it is now beyond dispute that the Chief of Police of
Manila be­longs to the non-competitive service, since the Chief of Police of
Manila is the head of the Manila Police Depart­ment created in the Revised
Charter of the City of Manila (Secs. 20 and 34, Rep. Act 409 as amended) and the Po­lice
Act of 1966 ‘prescribes specific special qualifications for appointment’ as
chief of a city police agency (Sec. 10, Rep. Act 4864).

“Pursuant to these amendments to the Civil Service Act of
1959, I have on this date extended an appointment as regular and permanent
Chief of Po­lice of Manila with compensation at the rate of P24,000.00 per
annum ef­fective August 4, 1969 to Mr. GERARDO G. TAMAYO who admittedly
possesses the the minimum specific special quali­fications
for appointment as chief of a city police agency, since he holds a bachelor’s
degree (LLB, 1951) and has served in the Manila Police Department with the rank
of captain for nearly ten years (from August, 1957 to February, 1967).”

On even date, separate communications
were sent by the Mayor to respondent City Auditor to approve and to re­spondent
City Treasurer to pay the corresponding differ­ential and salary vouchers of
petitioner Tamayo as per­manent chief of police as of
August 4, 1969.

In a 1st indorsement dated September 12, 1969, re­spondent
Commissioner “disapproved” the above appoint­ment arguing as follows:

“It appears that the said ap­pointment of Mr. Tamayo was issued on the basis of the gratuitous and erroneous
conclusion that the posi­tion of Chief of Police in the City of Manila
now falls under the non-­competitive service. 
Although Sec­tions 5(f) and 5(i) of Republic
Act No. 2260, as amended by Republic Act No. 6040 have placed ‘heads of de­partments
created in the charter of cities’ and ‘officers and employ­ees appointed to
positions for which the law prescribes specific special qualifications’ in the
non-competi­tive service, the same, however, are provisions of a general law
which, under the settled rule of statutory construction, cannot prevail over
specific provisions of special laws. 
Republic Act No. 4864 is a special law that governs appointments to
positions in police forces or agencies such as the position of Chief of Po­lice
in the City of Manila.  Sections 10 and 11 of Republic Act No. 4864
provide as follows:

‘SEC. 10.  Minimum qualifi­cations
for appointment as Chief of Police Agency.- No per­son may be appointed
chief of a city police agency unless he holds a bachelor’s degree from a recognized
institution of learning and has served in the Armed Forces of the Philippines
or the National Bureau of Inves­tigation, or has served as chief of police with
exemplary record, or has served in the police de­partment of any city with the
rank of captain or its equivalent therein for at least three years or any high
school graduate who has served as officer in the Arm­ed Forces for at least
eight years with the rank of captain and/or higher.

‘No person may be appointed chief of a municipal police a­gency
unless he holds a bache­lor’s degree from a recognized institution of learning
or any high school graduate who has served the police agency of a city or a
municipality or has served as officer in the Armed Forces for at least five
years from the rank of lieutenant or detective lieutenant and/or higher.

‘Where no civil service eligi­ble is available, provisional
appointment may be made in accord­ance with Civil Service Law and rules:  Provided, That the appointee possesses
the above educational qualifications:  Provided,
further, That in no case shall such appointment extend beyond six
months, ex­cept for a valid cause, and with the approval of the Civil Service
Commission.

‘SEC. 11.  Qualification
for per­manent appointment; Preference; Temporary appointment.-
Except as herein provided, no person shall be permanently appointed to any po­sition
in the local police force or agency unless he has quali­fied in an appropriate
or po­lice service examination.  In the
absence of civil service eligibles preference for
appointment shall be given to candidates who have completed police training
courses abroad sponsored by the NEC-AID or any other sponsoring agency, or the
police training courses of the Philippine Constabulary School or the National
Bureau of Investigation Academy, or any public of private police training
school accredited by the government, or have com­pleted military trainee ins­tructions,
or are officers or enlisted men who have been honorably discharged from the
Armed Forces of the Philippines.

‘Where no civil service eli­gible is available, provisional
appointment may be made in accordance with Civil Service Laws and rules:  Provided, That in case of a
patrolman-appointee, he shall possess at least the gene­ral qualifications
provided for in Section 9 of this Act.’

“It will be noted from the aforequoted
provisions that appointment to any position in the police force or agency
requires ‘prior qualification in an appropriate or police service examination.’
This includes the position of Chief of Police in the City of Manila,
appointment to which, therefore, requires prior qualification in an appro­priate
or police service examination.  These
provisions have not been repealed either ex­pressly or impliedly by Republic
Act No. 6040 which amends Republic Act No. 2260.  On the contrary, Republic Act No. 2260 as
amend­ed by Republic Act No. 6040 and Republic Act No. 4864, the Police Act of
1966, complement each other.  Section 4
of Republic Act No. 2260 as amended specifically defines the po­sitions under
the competitive service as follows:  ‘The
competitive or classified service shall include positions for appointment to
which prior qualification in an appropriate examination is required.’ On the
other hand, Sections 10 and 11 of Republic Act No. 4864 require qualifica­tion
in an appropriate or police service examination for permanent appointment to
position in the police force. 
Undoubtedly, the position of Chief of Police is in the competitive
service.  That Con­gress never intended
to alter the nature of positions in the police service as falling under the
competitive service is even made more patent by the penultimate paragraph of
Section 23 of Republic Act No. 6040 as amended, which provides as follows:  ‘The Police Commission shall give the
appropriate examination for of­ficers and members of local police for­ces
x x x.’ This clearly shows the intention of Congress
of retaining all positions (including the position of Chief of Police) in a
police force or agency in the competitive service.

“Furthermore, there is no showing that the City Mayor in
issuing Mr. Tama­yo’s appointment, observed the
provisions of Section 4 of Republic Act No. 5185 which requires that
appointment to posi­tions of head and assistant head of local offices, without
qualification as to whether they are in the competitive or non-­competitive
service, shall be made from a list of five ranking and qualified eligi­bles to be certified by the Commissioner of Civil
Service.  This procedure in fill­ing such
positions in local offices was held mandatory by the Supreme Court in the case
of Pineda vs. Claudio, et al., G.R. No. L-29661, May 13, 1969, so much so that it held that the
Commissioner of Ci­vil Service correctly issued his Memoran­dum Circular No.
21, s. 1968, implement­ing said Section 4 of Republic Act No. 5185.

“Finally, it bears emphasis to state that in Civil Case No.
75105, entitled ‘Antonio J. Villegas, et al. vs. Abelardo
Subido‘, the Court of First Instance of Manila in its
restraining order dated De­cember 14,
1968 enjoined the parties in said case including the City Mayor of
Ma­nila, ‘to refrain from disturbing the status quo.’ Precisely,
the matter in issue in said case are the legality of Mr. Tama­yo’s
appointment and the efficacy of his Chief
of Police eligibility.  It is plain that
the act of the City Mayor in issuing Mr. Tamayo’s
appointment at P24,000.00 per annum has disturbed the status quo, in con­travention
of the restraining order.  Moreover, this
appointment of Mr. Tamayo appears to be a mere
adjustment in salary to the same item. 
It is inconceivable how such an appointment can be legally extended when
the main or original appointment to the same position is the subject of a
pending court case precisely to determine its legality.  Such action ‘begs the question’.

“From all the foregoing and pursuant to Section 693 of the
Revised Administrative Code, this Office finds and declares that the position
of Chief of Police of the City of Manila
belongs to the competitive service. 
Consequently and considering further that his Chief of Police
eligibility is subject to certain conditions which to-date have not been
fulfilled or met, the appointment of Mr. Gerardo G. Tamayo
as Chief of Police of Manila is disapproved.”

On
the same date, in simultaneous but substantially iden­tical communications,
respondent Commissioner notified respondents City Auditor and City Treasurer of
his above action and since the salary differential covering the period from
August 4, 1969 to September 15, 1969 had al­ready been paid when the
Commissioner’s advice was received by these respondents, a demand was made upon
Tamayo to refund the same; and albeit said demand has
been resisted by Tamayo, the City Auditor informed
the Commissioner and advised Tamayo that in regard to
the appointment in ques­tion he (the Auditor) “will henceforth be guided
by the aforesaid decision of the Civil Service x x
x as long as
the same is not set aside by the competent authority x x x.” (Annex K, Petition) Hence this special civil
action now before Us.

Accordingly, the main legal
question submitted for Our resolution revolves around the effect of the
enactment of Republic Act 6040, upon the power of the Commissioner of Civil
Service to act upon appointments of heads of police departments created in
charters of cities, having in view the other related provisions of the Civil
Service Act of 1959 itself, as amended, and of the Decentralization Act
(Republic Act 5185) as well as Republic Act 4864, otherwise known as the Police
Act of 1966.

Respondent Commissioner does not question the power of petitioner
Villegas to appoint the chief of police of Manila
nor the fact that the police department of the city was created in its
charter.  The burden of the Com­missioner’s
position in respect to the basic question herein is that, notwithstanding the
provisions of Sec­tion 3 of Republic Act 6040 including in the non-compe­titive
service the following:

“(f) heads of departments created in charters of cities x x x; (and)

“(i) officers and employees ap­pointed
to positions for which the law prescribes specific special qualifica­tions for
appointment”,

chiefs
of police of chartered cities, including those in which the respective police
departments have been created in their charters, have not ceased to be in the compe­titive
service in view of the requirement of civil ser­vice eligibility for said
position commonly imposed by Section 11 of the Police Act of 1966 and Section 4
of the Decentralization Act.  On the
other hand, the petitioners contend that all the provisions of the prior
laws cited by respondent Commissioner, as aforestated,
have been amended, if not repealed by various provisions of Repub­lic Act 6040
and, in any event, since Section 10 of the Police Act of 1966 prescribes
specific special qualifi­cations for the position of Chief of Police of
chartered cities, the said position has also been placed in the non-competitive
service by the above-quoted provision of paragraph (i)
of Section 3 of Republic Act 6040.  In
other words, the principal specific questions We are called upon to decide
are:  (1) to what extent, if at all, have
the aforequoted provisions and other related provi­sions
of Republic Act 6040 amended, modified or repealed Section 11 of the Police Act
of 1966^[2] and
Section 4 of the Decentralization Act ^[3] insofar
as chiefs of police departments created in the charters of cities are concerned
and (2) whether or not paragraph (i) of Section 3 of
Rep­ublic Act 6040, quoted above, contemplates the position of chief of police
of cities for which Section 10 of the Police Act of 1966^[4] prescribes
specific special quali­fications.

After careful and mature consideration of the legal provisions
and principles applicable to the facts of this case as well as the arguments of
the parties in their res­pective pleadings and memoranda, We are convinced and
so hold that petitioner Tamayo’s questioned
appointment as Chief of Police of Manila is in order and, therefore, the herein
petition should be granted.

On the question of whether or not “the heads of departments
created in charters of cities” referred to in Section 5(f) of the Civil
Service Law as amended by Republic Act 6040 should be deemed to include the
chiefs of police, much of the argumentation of the parties center on which
provision should be considered as general in its scope and which as special or
particular, the just mentioned one or those of Sections 10 and 11 of the Police
Act and Section 4 of the Decentralization Act, and differing as they do in
their respective premises, albeit invoking the same rule of statutory
construction to the effect that special or particular legal provisions should
prevail over general ones, they have naturally arrived at exactly opposite
conclusions.  We need not choose between
their opposing predicates.  As We see the
problem before Us, the perspective for its resolution is much deeper and
broader than the reach of any artificial and abstract rule of statutory
construction.

It is an unquestionable fact of contemporary poli­tical
development in our country that the march towards further enlargement of local
autonomy is irreversible.  Lessons from
the experience in other countries wherein overall progress has been remarkably
attained, and, equal­ly, the intrinsic merits of local rule as to more or less
purely local matters, lend force to the legislative moves here enlarging the
powers of our local authorities. 
Decentralization of government authority which practi­cally means the
same thing as local autonomy, if covered by separate legislation, has similar,
if not identical, justification.  On the
other hand, the deplorable picture of peace and order conditions throughout the
country has made the objective of placing “local police service on a
professional level” (Section 2, Police Act) an im­perative necessity.  None can seriously deny that the in­efficacy
and continuing deterioration of the police pro­tection which our people are
getting now in most of our communities has been due mostly to the admixture of
poli­tics and nepotism in the appointments as well as in the control and
supervision of the members of the local po­lice departments.  Had the Police Act not been approved, it is
not difficult to imagine how much worse peace and order conditions would have
been and, consequently, how much more impairment the faith of the citizenry in
the impartiality of law enforcement would be suffering by now.  It is
thus of utmost importance that in the construction and implementation of any
political measure, even if intended to enhance local autonomy, the
imperiousness of the objectives of the Police Act should never be lost sight
of.

It is in the crucible of these realities and ideals and their
implications that the solution of the pivotal issue in this case must be
forged.  Put plainly, the ques­tion is,
is the exclusion of the chief of police of a char­tered city from the
competitive service or, stated other­wise, his inclusion in the non-competitive
service of the civil service a concession to local autonomy that will ne­cessarily
result in the detriment to, if it will not erode dangerously, the cause of
professionalism in the local po­lice service? 
We are of the considered view that it will not.  Laying aside the legislative intent of not
excluding any department head apparent from unqualified reference in the text
of the provision to “heads of departments”, natu­rally meaning all
such heads, We perceive no reason why, in the light of the other considerations
hereunder to be discussed, the seemingly conflicting provisions cannot be
reconciled without sacrificing the muchly-desired object­ives
of either of them.

The pertinent provision of the Decentralization Act reads thus:

“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 Commissioner: 
Provided, That these five persons shall have stated be­forehand
that they will assume the posi­tion, if appointed.”

Since this provision refers, on the one hand, to all “heads
and assistant heads of local offices”, and, on the other, Section 5(f) of
the Civil Service Act, as already noted, expressly mentions all “heads of
depart­ments created in charters of cities”, who are unquest­ionably among
the “heads of local offices”, the conclu­sion is inescapable that the
requirement of civil service eligibility found in the Decentralization Act for
heads of local offices must be deemed to have been removed by Republic Act
6040, a subsequent enactment, insofar as “heads of departments created in
charters of cities”, are concerned. 
Obviously, this is a step towards more local autonomy, if limited as yet
to “heads of departments created
in charters of cities” and not extended to all heads of local offices, not
even of those in all char­tered cities. 
The reason for it is not difficult to find.  Except as to the reference to the requirement
of eligi­bility then in force, Justice Castro’s rationalization in favor and
justification of the broadening of local au­tonomy in the matter of selection
and appointment by the local executives of their subalterns in Pineda vs.
Claudio, 28 SCRA 34, 46-47, is fully in line with progressive political
thinking:

“x x x 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, knowledgeability,
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.  x x x“

And
very pertinently to the very issue before Us in this case, Justice Castro’s
above opinion asserts:  “Nowhere is
this more true than in the sensitive area of police administration.”

On these premises, the
question that naturally suggests itself is, what happens then to
professionalism in the local police?  We
must assume that the legisla­ture has not overlooked this point.  From all that ap­pears, the legislature has
seemingly been convinced that the danger to the efficiency and quality of the
local policemen posed by making the position of their chief non-competitive or
by conferring upon the local execu­tives the power to select and appoint such
chiefs with­out regard to civil service eligibility is not as grave as to
substantially defeat the objectives of the Police Act in regard to the local police forces as such
or as a whole.  To start with, the
provision of Section 11 of he Police Act that –

“x x x no
person shall be permanently appointed to any position in the local police force
or agency un­less he has qualified in an appropriate or police service
examination.  In the absence of civil
service eligibles pre­ference for appointment shall
be given to candidates who have completed police training courses abroad sponsored
by the NEC-AID or any other sponsoring agency, or the police training courses
of the Philippine Constabulary School or the National Bureau of Investigation
Academy, or any public or private police training school accredited by the
government, or have completed military trainee instruc­tions, or are officers
or enlisted men who have been honorably discharged from the Armed Forces of the
Philippines.

“Where no civil service eligible is available, provisional
appointment may be made in accordance with Civil Service Laws and rules:  Provided, That in case of a
patrolman-appointee, he shall possess at least the general qualifica­tions
provided for in Section nine of this Act.”

remains
operative except only as to the Chief of Police.^[5] In
Pineda, We sanctioned in effect the separate legisla­tive treatment of the
position of Chief of Police, on the one hand, and the rest of the members of
the local police force, on the other, by holding that notwithstand­ing that
Section 17 of the Act expressly enjoins mayors to fill any vacancy in a local
police agency “as provi­ded for in this Act”, (the Police Act)
meaning, pursuant to its provisions only, the subsequent approval of the
Decentralization Act modified said injunction insofar as the Chief of Police is
concerned because of the explicit terms of Section 4 of the latter.  It is indeed quite possible that the
lawmakers, upon further reflection during the consideration of the
Decentralization Act, arrived at the conclusion that in the interest of local
autonomy and a more effective liason and closer colla­boration
between the local executive and the chief of police under him, it is not really
absolutely essential that the selection and appointment of the Chief of Police
by the mayor should be as restricted as to practically tie the hands of the
mayor only to the promotion of the officer next in rank.

Of course, it can be
argued that said Section 4 merely widened the field from which the mayor may
pick his chief of police to any in the list of twenty rank­ing officers, certified
by the Commissioner of Civil Service as eligible for appointment either by
promotion, transfer, reinstatement or certification of appropriate eligibles, composed of five from each category, instead of
requiring him to peremptorily promote the officer next in rank contemplated in
Section 23 of the Civil Service Act, as explained in Pineda, but it did not do
away with the minimum requirement of appropriate civil service eligibility, as
would be the case if Section 5(f), above referred to, were to be construed as
peti­tioners propose.  It being evident,
however, as earlier noted, that the passage of the provision in question is
along the same direction as the Decentralization Act, namely, to provide for
more local rule, to acquiesce to respondent Commissioner’s position in this
case is to refuse to accord respect to a clear legislative mandate only
on the ground that it may not be the wise thing, af­ter all, something this
Court cannot do because of, what is almost trite to repeat here, the
fundamental princi­ple of separation of powers on which our government rests,
which does not permit the judiciary to inquire into the wisdom of any of the
acts of the legislature and the Chief Executive which are plainly within the
scope of their respective constitutional prerogatives.  It is understand­able, that with the
requirements of Sections 9 and 11 of the Police Act being applied to all the
other members of the police department, the eligibility of the chief thereof,
provided he also has the qualifications enumera­ted in Sections 9 and 10, may
not really be as essential as the advantages that can be derived by allowing
the Mayor to have a Chief of his own confidence.  Besides, considering that the scope of the
questioned provision is limited only to “heads of departments created in
char­ters of cities”, it is possible Congress may be trying the thing on
an experimental basis, with the implicit reservation to take corresponding
corrective measures should subsequent developments demand them.

In any event, the concession to local autonomy by the Police Act,
even as to the matter here in issue, does not appear to be really complete and
absolute.  Section 10 of the Police Act
provides:

“No person may be appointed chief of a city police agency unless he holds a bachelor’s
degree from a recognized institution of learning and has served either in the
Armed Forces of the Philippines or the National Bureau of Inves­tigation, or
has served as chief of po­lice with exemplary record, or has served in the
police department of any city with the rank of captain or its equivalent
therein for at least three years; or any high school graduate who has served as
officer in the armed forces for at least eight years with the rank of captain
and/or higher.

“No person may be appointed chief of a municipal police agency
unless he holds a bachelor’s degree from a recog­nized institution of learning
or any high school graduate who has served the police agency of a city or a
municipality or has served as officer in the Armed Forces for at least five
years from the rank of lieutenant or detective lieu­tenant and/or higher.

“Where no civil service eligible is available, provisional
appointment may be made in accordance with Civil Service Law and rules:  Provided, That the appointee possesses
the above edu­cational qualification:  Provided,
fur­ther, That in no case shall such ap­pointment extend beyond six
months, except for a valid cause, and with the approval of the Civil Service
Com­mission.”

It will be noted that according to this provision, where no civil
service eligible is available, the appoint­ee must at least possess the
educational qualifications prescribed by it, which necessarily include the
actual training and experience in the military or police organizations therein
mentioned.  In this connection, it is Our
considered opinion that, having in view the inevitability, in the light of
progressive political thinking, of the ex­tension of self-rule in the local
level, so as to widen and
enlarge the powers of selection and appointment by lo­cal executives of those
who will assist them in the admi­nistration of local affairs, on the one hand,
and the unquestionable desirability, nay, imperative necessity of keeping the
local police forces on a professional level as much and as long as the law can
be possibly construed to effectuate such professionalism, the situation where
there is no civil service eligible is available contemplated in the
above-quoted provision may be equated with the develop­ment brought about by
Republic Act 6040 of eliminating al­together the requirement of civil service
eligibility in the appointment of chiefs of police departments created in
charters of cities, and We, therefore, hold that Republic Act 6040 does not do
away, even with regard to chiefs of police in the cities contemplated in said
Act, with the injunction of Section 10 of
the Police Act that only those possessing the educational qualifications
therein required may be appointed as such chiefs nor that of Section 9 re­garding
the moral, age, height, weight and other personal qualifications which must be
possessed by any appointee to
any position in the police force.

We reiterate that Section 17 of the Police Act defi­nitely requires that
vacancies in the police services must be
filled “as provided for in this Act” and that the Act has a
minimum requirement of qualifications and civil ser­vice eligibility under
Sections 9 and 11 thereof.  True, in
Pineda We held that these requirements have been modified as to the chief of
police by Section 4 of the Decentralization Act, and now We are holding here that as to chiefs of
police in police departments created in charters of cities, civil service
eligibility is no longer necessary.  We
are convinced, however, that, inasmuch as the moral, education­al and eligibility
requirements for the rest of the whole body of the police forces or all the
members thereof are still there, Congress, in placing the chiefs of police of
these cities in the non-competitive service, could not have committed the
absurdity, of, at the same time leaving the door wide open for the mayors of
said cities to freely pick any Tom, Dick and Harry as his chief of police, in
complete disregard of the ideals and objectives of the Police Act.  Besides, after appointment, it must be borne
in mind, the chief is still covered by all other provisions of the Civil
Service Act as he is considered in the civil service, even if in the
non-competitive class.

It is only in the sense just discussed that petition­ers’
contention that Section 5(i) of the Civil Service Act
may also be invoked in support of petitioner Tamayo’s
im­pugned appointment has merit; otherwise, petitioners’ ra­tionalization must
fall.  Petitioners maintain that inas­much
as Section 10 of the Police Act prescribes specific special qualifications for
appointment to the position of chief of police, and said Section 5(i) of the Civil Service Act has placed in the
non-competitive service all “officers and employees appointed to positions
for which the law pres­cribed specific special qualifications for
appointment”, all positions of chief of police belong now to the
non-competitive service.  The flaw in
this line of reasoning lies simply in the obvious fact that the specific
special quali­fications prescribed in Section 10 are inseparably premised on
the indispensable requirement of appropriate civil ser­vice eligibility imposed
by Section 11 of the Act and im­plied even from the last paragraph of Section
10 which pro­vides:  “[W]here no civil service eligible
is available, provisional appointment may be made in accordance with Ci­vil
Service Law and rules:  Provided,
That the appointee possesses the above educational qualification:  Provided, further, That in no case shall such appointment extend
be­yond six months, except for a valid cause, and with the ap­proval of the
Civil Service Commission.” In other words, the specific special
qualifications referred to by petition­ers as prescribed in this section
inseparably include civil service eligibility, hence they cannot be the ones
contem­plated in Section 5(i) of the Civil Service
Law.  Stated differently, Our ruling in
regard to petitioners’ conten­tion under discussion is that the specific
special educa­tional qualifications prescribed in Section 10 of the Po­lice Act
are not the ones contemplated in Section 5(i) of the
Civil Service Act as basis for making the position of chief of police
non-competitive, but, on the other hand, even if said position has nonetheless
become non-competi­tive by virtue of sub-paragraph (f) of the same section, as
already explained above, still no person may be appointed chief of police
unless he possesses the specific special educa­tional qualifications and
military or police service prescribed by Section 10 of the Police Act.

Since it is not denied that petitioner Tamayo
pos­sesses the qualifications prescribed by Section 10 of the Police Act, being
a Bachelor of Laws and having served as captain of the Manila Police Department
since 1957, and, moreover with respect to appointments to non-competitive
positions, the only function of the Commissioner of Civil Service is to note
and record the same, such that Rule VI
Section 2(d) of the Civil Service Rules provides explicitly that
“appointments to positions in the non-competitive service x x x shall likewise be made
through the Commis­sioner for proper notation and record”, in contrast to
Section 2(a) which provides that “[A] ll
appointments …. to positions in the competitive service …. shall be sub­mitted
to the Commissioner for approval ….”,^[6]
the conclusion is inevitable that the disapproval of said petitioner’s
questioned appointment by respondent Commissioner has absolutely no legal
basis.

As to the rest of the issues extensively and ably discussed by
both parties, interesting as they are, We do not deem it necessary to pass on them now, in view of the conclusions We have arrived at above.

IN VIEW OF ALL THE FOREGOING, the herein petition is granted, the
respondent Commissioner’s disapproval of petitioner Tamayo’s
appointment as Chief of Police of Manila dated September 5, 1969 is declared to
be without any legal force and effect, including the stopping of the payment of
said petitioner’s salaries and differential pay as such Chief of Police, and
the order to Tamayo and respondents City Auditor and
City Treasurer to effect reimbursement of whatever parts thereof have already
been paid, and all the respondents are hereby commanded to recognize and
respect said appointment and otherwise act in conformity with the above opinion
and this deci­sion.  No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Ruiz Castro, Teehankee, and Villamor, JJ.,
concur.

Fernando and Makasiar, JJ.,
did not take part.

^[1] It appears that earlier petitioner Tamayo was first appointed by Mayor Villegas as Chief of Police of Manila but the incidents regarding the said
appointment have no bearing herein.

^[2] To be quoted in this opinion later.

^[3] To be quoted in this opinion later.

^[4] To be quoted in this opinion later.

^[5] Section 9 of the Police Act provides:

“No person shall
be appointed to a local police agency unless he possesses the following
qualifica­tions:

[1] He must be a citizen of the Philippines;

[2] He must be a person of good
habits and moral conduct;

[3] He must be of sound mind and
body;

[4] For
appointment in the municipalities he must have at least completed high school,
and for provinces and cities, at least completed two years college;

[5] He must
have no criminal record;

[6] He must not have been dishonorably discharged
from military employment or dismissed for cause from any civilian position in
the government;

[7] He must not
be less than twenty-three nor more than thirty-three years of age;

[8] He must be
at least five feet, five inches in height in the case of provinces and
chartered cities and five feet four inches in the case of mu­nicipalities; and,

[9] He must not
weigh less than one hundred twenty pounds.

Persons who at
the time of the approval of this Act have rendered at least five years of
satisfac­tory service in a provincial, city or municipal police agency although they have not
qualified in an appropriate civil service examination are con­sidered as civil
service eligibles for the purpose of this Act.”

^[6]
Actually, section 16(h) of the Civil Service
Act does not require approval by the Commissioner of appointments of whatever
kind, even if it authorizes him to disapprove appointments to positions in the
competi­tive service, within ninety days after submission thereof, only
“where the appointees do not possess the corresponding eligibility.”