JUSTINO L. DAVID, PETITIONER-APPELLANT, VS. ANGEL DANCEL, CHIEF TAX REGISTRATION SECTION,REAL ESTATE DIVISION, CITY TREASURER’S OFFICE; THE CITY TREASURER, THE GUT AUDITOR, THE …

Petitioner filed this action
for quo warranto in the Manila Court of First Instance, seeking the
ouster of respondent Angel Dane el from the position of Chief, Tax
Registration Section, Real Estate Division, Treasurer is Office in the
City of Manila, to which petitioner claims to be lawfully entitled to
appointment. From an adverse judgment dismissing his action, petitioner
brings this appeal to this Court on questions of law.

The
disputed position of Chief, Tax Registration Section became vacant
following the death of Marcelino Cueto, Chief of the Real Estate
Division in August, 1961. Prior to Cueto’s death, the ranking in the
Real Estate Division of the City Treasurer’s Office in Manila was as
follows:

1st – Harcelino Cueto –	Chief of the Division
2nd – Manuel Lapid –	Ass’t Chief of the Division
3rd – Juan de Vera –	Chief, Tax Registration Section
4th – Justino L. David – Section	Chief, Tax-Sold Property (Petitioner)
5th – Angel Dancel –	Senior Clerk (Respondent)

Upon Cueto’ s death, lapid was
promoted Division Chief while De Vera moved up to Assistant Chief of
the Division, thereby leaving the position of Chief, Tax,Registration
Section vacant. On August 3, 1961, the Office of the City Treasurer
recommended to the then Mayor Arsenio R. Lacson the appointment of
respondent Dancel to the vacant position, with the statement that “The
provisions of paragraph 3, Sec. 23 of Republic Act 2260 have been
observed in the consideration of this appointment.” The appointment was
subsequently signed and then sent to the Civil Service Commission. Upon
learning of this appointment, petitioner protested on the ground that,
as the next in rank, he was entitled to promotion to the vacant
position.

Respondent
Civil Service Commissioner dismissed the protest and approved the
appointment of respondent Dancel on the ground that under Executive
Order No. 503, series of 1934, no promotion shall be made unless the
proposed appointee has obtained an efficiency rating of not less than
85 per cent and petitioner’s rating was only 84 per cent. Petitioner
asked for a reconsideration and when no action was forthcoming for five
months, he filed this action on August 29, 1962. Answers were filed by
the respondents, a stipulation of facts was entered into and after
trial a decision was rendered dismissing the petition for quo warranto.

The
trial court ruled that, as the disputed position carried an item of
P4,500, it could be filled only by a first grade civil service
eligible, pursuant to Section 9 of the Civil Service Act of 1959
(Republic Act No. 2260). Under Republic Act No. 1080, as amended by
Republic Act No. 1844, petitioner could be considered a first grade
eligible only if he was being appointed to a position “the duties of
which involve knowledge of the respective profession,” In this case, of
the law profession, otherwise he could be considered only a second
grade civil service eligible. Since the position of Chief of the Tax
Registration Section does not require professional knowledge of the
law, the court ruled that petitioner could only be considered a second
grade eligible. The court stated further:

“The
fact that Dancel is also a second grade eligible does not justify the
petitioner’s claim to the position and the ouster of the respondent for
as stated in the beginning of this decision, the petitioner must show
not only that the respondent Angel Dancel is not entitled to the
position but that he oust establish also his own right to the position.”

The
trial court likewise ruled (1) that petitioner’s efficiency rating of
84 per cent was short of the minimum requirement for promotion; (2)
that the provisions of paragraph 3 of Section 23 of the Civil Service
Act as to notice of the reasons for not appointing the next in rank
were complied with when the Civil Service Commissioner ruled on
petitioner’s protest; and (3) that petitioner’s action was not
premature because five months elapsed since he filed his motion for
reconsideration and still no resolution was forthcoming.

In this appeal, petitioner contends (1) that he is a first
grade civil service eligible under Republic Act No. 1080, as amended,
for purposes of promotion to the vacant position; (2) that Executive
Order No. 503, series of 1934, which prescribes a minimum efficiency
rating of 85 per cent for promotion was superseded by the Compilation
of the Civil Service Laws and Rules, under which a rating of 84 per
cent is considered indicative of a high degree of efficiency; (3) that
at any rate, on June 30, 1962, while this case was pending in the trial
court, he was given an efficiency rating of 85 per cent; and (4) that
under the new Civil Service Rules which took effect on January 3, 1963,
an employee whose performance rating is at least satisfactory is
entitled to promotion.

The third paragraph of Section 23 of the Civil Service Act states:

“Whenever
a vacancy occurs in any competitive or classified position in the
government or in any government-owned or controlled corporation or
entity, the officer or employee next in rank who is competent and
qualified to hold the position and who possesses an appropriate civil
service eligibility shall be promoted thereto; Provided, That should there be two or more persons under equal circumstances, seniority shall be given preference; and Provided, however,
That should there be any special reason or seasons why such officer or
employee should not be promoted, such special reason or reasons shall
be stated in writing by the appointing official and the officer or
employee concerned shall be informed thereof and be given an
opportunity to be heard by the Commissioner of Civil Service, whose
decision in such case, shall be final. If the vacancy is not filled by
promotion as provided herein, then the same shall be filled by transfer
of present employees in the government service, by reinstatement, by
reemployment of persons separated through reduction in force, or by
certification from appropriate registers of eligibles in accordance
with rules promulgated in pursuance of this Act.”

The first inquiry is whether petitioner possesses an “appropriate civil
service eligibility” for the vacant position, which. In this case,
requires first grade civil service eligibility. Petitioner claims that,
as early as 1956, he was granted first grade civil service eligibility
after having passed the Bar examinations. Petitioner, it is true, is
considered a first grade eligible, but he is so only with respect to
positions “the duties of which involve knowledge of the respective
profession.” Thus, Section 1 of Republic Act No. 1080, as amended by
Republic Act No. 1844, provides:

“The bar examinations and the examinations given-by the
various boards of examiners of the Government are declared as civil
service examinations, and shall, for purposes of appointment to positions in the classified service the duties of which Involve knowledge of the respective professions, except positions requiring highly specialized knowledge not covered by the ordinary board examinations, be considered as equivalent to the first grade regular
examinations given by the Bureau of Civil Service if the profession
requires at least four years of study in college and as equivalent to
the second grade regular examinations if the profession requires less
than four years of college study; Provided, however, That such bar or
board examination shall be equivalent to the next lower grade of civil
service examination when the person is to be employed in a position
other than one requiring his professional knowledge…..” (Italics
supplied)

Here it is not disputed that the position of Chief, Tax Registration
Section does not require professional knowledge of the law. Therefore,
petitioner must be considered only a second grade civil service
eligible.

It is true that Republic Act No. 1079 declares that “civil service
eligibility shall be permanent and shall have no time limit,” but aside
from the fact that this law applies only to civil service eligibility
in general, civil service eligibility under Republic Act No. 1080 must
be understood as permanent in relation to the position to be filled.
Thus, petitioner’s first grade eligibility Is permanent with respect to
any position calling for professional knowledge of the law.

It is claimed, however, that unless petitioner is considered a
first grade eligible, he would be barred from promotion to a higher
position which does not require knowledge of the law profession. Such
an argument overlooks the fact that under Republic Act No. 1080, the
eligibility granted is subject to the condition precedent that the
position involved requires professional knowledge of the applicant. As
the Solicitor General correctly observed, “eligibility under Republic
Act No. 1080, as amended, does not lapse. There may not be an
opportunity to apply the first grade equivalent, but it could certainly
be availed of any time the right position comes along, irrespective of
the period of ‘non-user.'”

Still it is argued that respondent Dancel, like petitioner, is only
a second grade eligible and should not have been appointed to the
vacant position. For him to be able to question Dancel’s qualification,
David must first show that he himself has a right to the office. Does
petitioner have such a right? Is he qualified for promotion?

To begin with, at the time of his appointment, Dancel had an
efficiency rating of 90 per cent as against petitioner’s 84 per cent.
Under Executive Order No. 503, series of 1934, the minimum requirement
Is 85 per cent. This is the reason why the respondent Commissioner of
the Civil Service upheld the appointment of Dancel. Petitioner now
claims that Executive Order No. 503 was repealed by the Compilation of
the Civil Service Laws and Rules of 1956. He bases this claim on the
statement in the preface of this compilation that “provisions which are
obsolete have naturally been eliminated.” Therefore, since Executive
Order No. 503, series of 1934, is not Included In the compilation, it
must be because it is “Obsolete.” As correctly pointed out by
respondents, however, the Compilation of Civil Service Laws and Rules
was prepared merely by the Bureau of Civil Service and could not
possibly have repealed Executive Order No. 503, series of 1934 since
under Article 7 of the Civil Code, “laws are repealed only by
subsequent ones and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.”

It is finally contended that at any rate petitioner should not have
been held disqualified for promotion, first, because on June 30, 1962,
he obtained the required 85 per cent and, second, because beginning
January 3, 1963, the new Rules promulgated pursuant to the Civil
Service Act of 1959 allow the promotion of those whose performance
rating is at least satisfactory and a rating of 84 per cent under the
Compilation of Civil Service Laws and Rules indicates a high degree of
efficiency.

It should be enough to say that the efficiency rating of an employee
at the time promotion is made and not his subsequent rating (which may
be higher) is the one that determines his competence.

For all these reasons, petitioner has not shown a right to the
disputed position and consequently he can not maintain an action for quo warranto. (Rule 66, sec. 6, Rules of Court. Acosta vs. Flor, 5 Phil. 18 [1905]; Lino Luna vs. Rodriguez, 36 Phil. 401 [1917]; Austria vs. Amante, 79 Phil. 780 [1948]; Adante vs.
Dagpin, 51 Off. Gaz. 2371 [1955]) It may also be added that the making
of an appointment involves the exercise of discretion as to who is best
qualified for any competitive position in the Civil Service. (Jimenez vs. Francisco, 53 Off. Gaz. 4808 [1957])

IN VIEW OF THE FOREGOING, the decision appealed from is hereby affirmed, with costs against the appellant.

Concepcion, C. J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, and Ruiz Castro, JJ., concur.