G.R. No. 14580. April 30, 1960
BEOFNATO ATAY AND EUSEBIO YAMUTA, PETITIONERS AND APPELLANTS, VS. DIEGO H. TY DELING, ET AL., RESPONDENTS AND APPELLEES.
LABRADOR, J.:
of Misamis Occidental, Hon. Patricio C. Ceniza, presiding, dismissing
their “petition for mandamus with damages” in Civil Case No. 2053,
entitled Beofnato Atay and Eusebio Yamuta, petitioners vs. Diego H. Ty Deling, et al., respondents.
The petition filed on December 13, 1957, alleges that petitioner
Beofnato Atay was appointed janitor guard in the Office of the
Provincial Treasurer of Misamis Occidental effective May 16, 1956. A
true copy of his appointment is attached to the petition as Annex “A”.
As to petitioner Eusebio Yamuta, it is alleged that he is a private
provincial guard in the Office of the Provincial Warden of Misamis
Occidental and was on July 1, 1957 extended promotional appointment as
shown by Annex “B” to the petition. The other allegations of the
petition are: That petitioner Beofnato Atay was directed on September
18, 1957. by the respondents Provincial Governor and Provincial
Treasurer to cease his services effective September 16, 1957 (Annexes
“C” and “D”); that petitioner Eusebio Yamuta was directed on July 15,
1957 by the Assistant Provincial Warden to terminate his services
effective July 16, 1957 (Annex “E”), but that he failed to comprehend
the order so that he continued reporting for duty until September 16,
1957, when he was advised by the respondent Provincial Warden that his
services end as of that date; that the removal of petitioners was not
for cause provided by law, and without any previous hearing or
investigation, contrary to the provisions of the Constitution and the
rules of the civil service; that from their appointment up to their
removal petitioners have rendered faithful, satisfactory and continuous
service, and that neither one of them has been under any administrative
or criminal investigation or indictment; that since their removal,
petitioners were not paid salaries by respondents; that the positions
left by petitioners were and or will be filled by appointees of the
respondent Provincial Governor; that they have no other plain, speedy
and adequate remedy in law; that they were forced to hire counsel for
P2,000 and they suffered exemplary damages in the amount of P10,000.
Petitioners pray the court to declare their removal as illegal and
void, to order respondents to reinstate petitioners to their former
positions with right to receive back salaries from time of removal, to
order respondents Provincial Treasurer and Provincial Auditor to
approve and pay petitioners’ salaries, and to order respondent
Provincial Governor to pay attorney’s fees and exemplary damages.
On December 20, 1957, respondents filed a motion to dismiss on the
ground that the petition states no cause of action. Movants argued that
the petition does not allege that petitioners are civil service
eligibles and, therefore, pursuant to the decisions of the Supreme
Court in the cases of Orais, et al. vs. Ribo, et al., 93 Phil., 985; 49 Off. Gaz. (12) 5386; Paña vs. City Mayor, 94 Phil., 103; 50 Off. Gaz. (1) 146; Jimenez vs. Francisco, 100 Phil., 1025; 53 Off. Gaz. No. 15, p. 4804; Mendez vs.
Ganzon, 101 Phil., 48; 53 Off. Gaz., No. 20, p. 7285, the petitioners
may be removed at will by the appointing power, without previous
hearing. Petitioner opposed the motion, claiming that they are embraced
in the classified civil service and are, therefore, entitled to
protection under Constitutional and statutory provisions and can not be
removed at will without hearing and for cause. The court below on July
30, 1958, dismissed the petition, taking into consideration the
decision of the Supreme Court in the case of Palagod, et al. vs.
Torres, et al., 104 Phil., 72; 56 Off. Gaz. (2) 268. A motion for
reconsideration of the order filed by petitioners was denied by the
court, hence this appeal.
On this appeal the only question involved is whether the removal of petitioners was lawful or otherwise.
Petitioner Atay was appointed janitor-guard on May 16, 1956 and was
removed, after notice, on September 16, 1957, while petitioner Yamutai
was extended a promotional appointment on July 1, 1957 and was removed,
also after notice, on September 16, 1957. As petitioners’ appointment
and removal took place before the new Civil Service Law, Republic Act
No. 2260, took effect on June 19, 1959, this new law, not having
retroactive effect, does not apply to petitioners. What govern are the
provisions of the Revised Administrative Code.
Petitioners admit in their brief that they are not civil service
eligibles and that their appointments are temporary. The positions of
private provincial guard and janitor-guard belong to the classified
civil service because they are not among those enumerated as belonging
to the unclassified civil service in Section 671 of the Revised
Administrative Code. Consequently, petitioners fall under Section 682
of the Revised Administrative Code, which provides:
“Temporary appointment without examination and
certification by the Commissioner of Civil Service or his local
representative shall not be made to a competitive position in any case,
except when the public interests so require, and then only upon the
prior authorization of the Commissioner of Civil Service; and any
temporary appointment so authorized shall continue only for such period
not exceeding three months as may be necessary to make appointment
through certification of eligibles, and in no case shall extend beyond
thirty days from receipt by the chief of the bureau or office of the
Commissioner’s certification of eligibles. * * *.”
Under this provision of law, the appointment of the petitioners
expires every three months, after which they could be replaced if the
appointing power believes it convenient. Accordingly, the respondent
Governor could remove them lawfully and replace them with others. Their
removal is, therefore, lawful. As this Court has previously held,
temporary employees, because of the nature of their appointment, can be
removed and replaced by eligibles or non-eligibles after the expiration
of their appointment, or after three month’s service, in accordance
with the aforequoted Section 682.
“Appointments made under the section are temporary,
when the public interests so require and only upon the prior
authorization. of the Commissioner of Civil Service, not to exceed
three months and in no case shall extend beyond thirty days from
receipt by the chief of the bureau or office of the Commissioner’s
certification of eligibles. The fact that the petitioners held the
positions for more than three months does not make them civil service
eligibles. Also the fact that the acting Commissioner of Civil Service
authorized. their appointments “under section 682 of the Revised
Administrative Code to continue only until replaced by an eligible”
does not make them eligibles. The holding of a position by a. temporary
appointee until replaced by an eligible in disregard of the time
limitation of three months is unauthorized and illegal. The temporary
appointment of other non-eligibles to replace those whose term have
expired is not prohibited. Hence the replacement of Teodulo T. Orais,
David Lim, Domingo Saligo and Eulalio Bernadez, who are non-eligibles
by Isidro Magallanes, Pedro Flores, Francisco Tayera and Narciso
Ravago, who are eligibles, is in accordance with law. The replacement
of non-eligibles by non-eligibles is lawful under and pursuant to
section 682 of the Revised Administrative Code. (Orais, et al. vs. Ribo, et al., G. R. No. L- 4945, Oct. 28, 1943; see also Erauda, et al. vs. Del Rosario, et al., G. R. No, L-10552, April 28, 1958; Jiminez vs. Francisco, 53 Off. Gaz. No. 15, 4804; Paña vs. City Mayor, G. R. No. L-5700, Dec. 18, 1953; Ramos vs. Porras, 53 Off. Gaz. No. 20, p. 7285; Mendez vs. Ganzon, 53 Off. Gaz. No. 15, p. 4835; and Palagod vs. Torres, G. R. No. L- 10027, June 30, 1958.)
Even admitting, therefore, the truth and correctness of the
allegations contained in the petition, still petitioners would not be
entitled to the reliefs prayed for by them because, as shown above,
their removal was in accordance with law.
Wherefore, the order of dismissal appealed from is affirmed, with costs against petitioners-appellants.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.