of Republic Act 2260, an appointment extended by an officer duly

empowered to make it is not final and complete until after the

Commissioner of Civil Service has certified that such an appointment may
be made.
Same; Same; Police Act; The incoming mayor must first await the
action of the Provincial Treasurer and the Civil Service Commissioner on
VOL. 120, JANUARY 27, 1983 159 the promotional appointment made by the former mayor before appointing
his own protegee.—However, these requirements could not be complied
Costin vs. Quimbo
with because Lajer, who had been appointed on November 25, 1959 was
* replaced on January 14, 1960 by the new mayor of the municipality who
No. L-32271. January 27, 1983. appointed Verra in his stead. As pointed out in Dichoso v. Valdepenas (5
SCRA 1069, 1075), the incoming mayor should have awaited the action of
MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as the provincial treasurer and later, the Commissioner of Civil Service, before
Chief of Police; FRANCISCO TISADO, OCTAVIO TRAYA as appointing his own protege to a position with an incumbent occupying it.
Municipal Mayor; DOMINGO IPONG as Municipal Treasurer; and Respondent Verra cannot rely on the absence of an attestation from the
THE MUNICIPAL COUNCIL OF ABUYOG, LEYTE, petitioners, provincial treasurer and a certification from the Civil Service Commissioner
vs. HONORABLE LOPE C. QUIMBO, Judge of the Court of First insofar as Lajer’s appointment is concerned because by the fact of Verra’s
Instance of Leyte, and HIGINIO VERRA, respondents. appointment, these requirements could no longer be fulfilled. Mayor
Octavio Traya took the appointments away from the office of the Provincial
Treasurer before they could be acted upon. The Commissioner could no
Civil Service; Public Officers; Validity of new appointment hinges on
longer act within 180 days.
legality of incumbent’s removal.—When respondent Verra was appointed
chief of police on January 14, 1960, Lajer had just been dismissed from Same; Same; Same; Position in question refers to that of Chief of
office with several other members of the police force. The validity of Verra’s Police.—Respondent’s Verra now contends that Lajer was ordered
appointment, therefore, hinges on the reinstated to the position of sergeant and not chief of police. Mr. Verra
cannot read into a Court of Appeals decision something which is not there.
Mr. Lajer did not go to court to contest the position of police sergeant or to
_______________
question his removal as police sergeant. He was never removed from a
* FIRST DIVISION.
position as sergeant of police. Lajer filed a peti-

161

160

VOL. 120, JANUARY 27, 1983 161

160 SUPREME COURT REPORTS ANNOTATED Costin vs. Quimbo
Costin vs. Quimbo
tion for mandamus to be reinstated as chief of police. The January 30, 1961
legality of Lajer’s removal. It is elementary in the law of public officers that decision of Judge S. C. Moscoso of the Court of First Instance of Leyte
no person, no matter how qualified and eligible he is for a certain position discusses an appointment as chief of police. When the decision ordering
may be appointed to an office which is not vacant. There can be no Lajer’s reinstatement was appealed to the Court of Appeals, the appellate
appointment to a non-vacant position. The incumbent must first be legally court specifically described petitioner Lajer as chief of police and petitioner
removed or his appointment validly terminated. Mariano Tomines, as police sergeant. When Lajer and Tomines were
ordered reinstated, it was to the said positions as chief of police and police
Same; Same; A promotional appointment not yet attested by the Civil sergeant respectively.
Service Commissioner is not yet final and complete.—The private
respondent is correct in asserting that when the promotional appointment of Same; Same; Person appointed to a position wherein incumbent has
Lajer was made in 1959, it could not be considered final or complete. Under not been legally removed is a de facto officer during the years the latter’s
Section 2(a) of Rule VI, the Civil Service Rules implementing Section 16(g) case for reinstatement was pending resolution.—Never having been validly
appointed, there was no office from which he was illegally dismissed. At
most, he was a de facto officer during the years when Lajer was litigating Civil Case No. 3606, entitled Higinio Verra v. Martial Costin, et al.
his action for reinstatement in the court of first instance and in the court of In that case for a writ of quo warranto with mandamus, the
appeals. And as earlier stated, the certification by the Commissioner of Civil respondent court declared Verra entitled to reinstatement with
Service that Mr. Verra possessed the qualifications and the eligibility, payment of salaries for the whole period from his illegal separation
doubtful though the latter may be, for the position of chief of police could from the service to the date of his reinstatement.
not have made the proceedings in court moot and academic much less Petitioner Estanislao Lajer was a member of the municipal police
rendered inutile the 1966 decision of the Court of Appeals granting the force of Abuyog, Leyte since January 1, 1949. He was extended a
petition for a writ of mandamus in Lajer’s favor. promotional appointment as sergeant of police on October 15, 1958.
Same; Same; Judgment; Judgment that has become final can no longer On November 25, 1959, the outgoing municipal mayor of Abuyog
be put in issue.—It is too late in the day now to debate the correctness of the accorded Lajer another promotional appointment as chief of police.
Court of Appeals decision that non-attestation was not sufficient cause for This last appointment was not attested and approved as required by
outright removal. The decision has long been final and was implemented in law.
1966. There is similarly no point in resolving the issue as to who has better On January 14, 1960, the new municipal mayor dismissed Lajer
qualifications and more nearly appropriate eligibility for the position of and eight other members of the police department. On the same day,
chief of police—a police sergeant with ten years experience and patrolman’s the municipal mayor extended to respondent Higinio Verra a
eligibility or a school teacher with a senior teacher’s eligibility. permanent appointment as Chief of Police of Abuyog with a salary
of P2,280.00 per annum. Verra immediately took over the position.
Same; Same; Police Act; Actions; Mandamus; A person not party to a His appointment was eventually approved as permanent under
mandamus petition is bound to obey the order of the court thereat.—Verra Section 24 (b) of Republic Act 2260 by the Commissioner of Civil
asks if he should be bound by the decision of the Court of Appeals, not Service.
having been a party to the case. The issue before the Court of First Instance On January 19, 1960, Lajer and the eight members of the police
and the Court of Appeals was whether or not the Mayor, Municipal council, force filed an action for mandamus (Civil Case No. 2713) against the
Municipal Treasurer, and the Municipality of Abuyog, Leyte illegally municipal mayor, municipal treasurer and the
terminated the chief of police, sergeant of police, and six other members of
the police force from their respective offices and whether or not mandamus 163
may issue to compel their reinstatement. Mandamus having issued, any

VOL. 120, JANUARY 27, 1983 163

162
Costin vs. Quimbo

municipal council of Abuyog, contesting their separation from the

162 SUPREME COURT REPORTS ANNOTATED
service.
Costin vs. Quimbo While this petition for mandamus was pending, there was again a
change in the municipal administration of Abuyog, Leyte as a result
person whether Mr. Higinio Verra or any other appointee to the contested
of the 1963 local elections. The newly elected municipal mayor
position must give up the office in favor of the officer adjudged by the
dismissed respondent Verra from office on January 16, 1964. Verra
courts to be entitled to it.
was replaced by Victoriano Silleza, officer-in-charge, on January
17, 1964 until October, 1964 when petitioner Marcial Costin was
PETITION to review the decision of the Court of First Instance of appointed chief of police.
Leyte. Quimbo, J. On December 29, 1964, respondent Verra filed Civil Case No.
3606 for quo warranto with mandamus against Marcial Costin, the
The facts are stated in the opinion of the Court. municipal mayor, and the municipal treasurer, questioning the
     Zoila M. Redoña and Bonifacio M. Batol for petitioners. legality of his separation alleging that he could not be dismissed as
          Leonardo L. Leonida and Francisco Aurillo for private chief of police because he was a civil service eligible and in
respondent. possession of an appointment to the position of chief of police of
Abuyog, Leyte duly attested “Permanent” by the Civil Service
GUTIERREZ, JR., J.: Commission.
On January 22, 1966, the mandamus suit (Civil Case No. 2713)
In this petition for review, the petitioners seek the annulment or filed by Lajer and his companions, which had been appealed was
reversal of the decision of the Court of First Instance of Leyte in decided by the Court of Appeals (CA-G.R. No. 29313-R). The
appellate court found that Lajer, Tomines, and Jervoso “were VERRA’S REMOVAL FROM THE SERVICE AS CHIEF
illegally removed from office and are, therefore, entitled to OF POLICE AND NOT THE VALIDITY OF HIS
reinstatement to their respective positions with payment of the APPOINTMENT THERETO;
salaries they failed to receive.” “IV. THAT THE HONORABLE COURT A QUO ERRED IN
As a result of the appellate decision, petitioner (then mayor) HOLDING THAT THE SEPARATION OF RESPONDENT
Tisado reinstated Lajer as chief of police on April 1, 1966. HIGINIO VERRA FROM THE OFFICE OF THE CHIEF
On July 24, 1966, respondent Verra amended his petition in Civil OF POLICE WAS ILLEGAL;
Case No. 3606, impleading Lajer as additional respondent therein.
“V. THAT THE HONORABLE COURT A QUO ERRED IN
On November 7, 1968, respondent Verra filed a second amended
HOLDING THAT RESPONDENT HIGINIO VERRA,
petition including as respondents the following: Octavio Traya, who
NOT BEING A PARTY IN CIVIL CASE NO. 2713 (CFI,
succeeded Tisado as mayor; Lionel Kanen who succeeded Lajer as
LEYTE) FOR MANDAMUS, IS NOT BOUND BY ITS
chief of police (Lajer retired from the service on February 1, 1968);
DECISION THEREON;
Domingo Ipong who succeeded Cuyno (deceased) as municipal
treasurer; and the Municipal Council of Abuyog, which appropriates “VI. THAT, FINALLY, THE HONORABLE COURT A QUO
funds for the office in question. ERRED IN ORDERING THE REINSTATEMENT OF
On December 2, 1969, respondent judge rendered his deci- OFTMENTIONED HIGINIO VERRA TO THE
POSITION OF CHIEF OF POLICE.”
164
The foregoing assignments of errors may be narrowed down to the
following issues:
164 SUPREME COURT REPORTS ANNOTATED
Costin vs. Quimbo 165

sion in Civil Case No. 3606, declaring that Verra is entitled to VOL. 120, JANUARY 27, 1983 165
reinstatement with salary to be paid to him for the whole period of Costin vs. Quimbo
his illegal separation to the date of his reinstatement. The court also
ordered the municipal mayor to reinstate Verra immediately and the
municipal treasurer to pay his salary. This decision is now before us 1. Whether or not the appointment of respondent Higinio
for review. Verra to the position of Chief of Police of Abuyog, Leyte,
Hence, the present petition with the following assignments of was valid and consequently his removal therefrom illegal.
errors: 2. Whether the Court of Appeals in its decision in C.A.-G.R.
No. 29313-R (Civil Case No. 2713-CFI, Leyte) ordered the
“I. THAT THE HONORABLE COURT A QUO ERRED IN reinstatement of petitioner Lajer to the position of Sergeant
DECLARING THAT THE COURT OF APPEALS IN ITS of Police or Chief of Police.
DECISION ON CIVIL CASE C.A. G.R. NO. 29313-R 3. Whether or not respondent Verra is bound by the decision
(Civil Case No. 2713), CFI, LEYTE) ORDERED THE of the lower court in Case No. 2713-CFI, Leyte, for
REINSTATEMENT OF PETITIONER ESTANISLAO mandamus, not being a party to it.
LAJER TO THE POSITION OF SERGEANT OF POLICE
OF ABUYOG, LEYTE AND NOT TO THE POSITION With respect to the first issue, the petitioners argue that the
OF CHIEF OF POLICE; appointment issued in favor of respondent Verra as chief of police
“II. THAT THE HONORABLE COURT A QUO ERRED IN on January 14, 1960, was invalid and ineffective because the said
NOT DECLARING THAT THERE WAS NO VACANCY position was not vacant from the time Lajer was illegally separated
IN THE OFFICE OF CHIEF OF POLICE OF ABUYOG, on January 14, 1960, up to the time he was actually reinstated. This
LEYTE TO WHICH RESPONDENT HIGINIO VERRA is, according to the petitioners, premised on the fact that the Court of
COULD HAVE BEEN VALIDLY AND EFFECTIVELY Appeals in deciding Civil Case No. 2713, CFI-Leyte, ordered
APPOINTED; Lajer’s reinstatement which also legalized the dismissal of
“III. THAT THE HONORABLE COURT A QUO ERRED IN respondent Verra.
HOLDING THAT THE ISSUE INVOLVED IN THIS Respondent Verra, on the other hand, contends that the of fice in
CASE IS THE LEGALITY OF RESPONDENT HIGINIO question was legally vacant when he was appointed thereto because
Lajer’s appointment was never attested as required by law or
incomplete, and, therefore, never became effective. It is further “ ‘SEC. 20. Delegation in the Civil Service Commission and to the
contended that Lajer’s appointment as chief of police was temporary Agencies.—x x x Appointments by x x x municipal mayors shall become
in character and terminable at the pleasure of the appointing effective upon issuance of such appointments and upon attestation by the
authority and when Lajer was separated from the office of chief of provincial treasurer in the case of appointments made by x x x municipal
police, the position became legally and physically vacant. Verra also mayors x x x. All appointments made by the x x x municipal mayors x x x
claims that since he is a civil service eligible and his appointment as shall, after being attested to by the respective provincial treasurer x x x be
chief of police was attested as permanent under Section 20 of forwarded within ten days to the Commissioner of Civil Service for review
Republic Act 2260 and served as such for four (4) years and two (2) pursuant to Civil Service law and rules. If within one hundred eighty days
days when he was dismissed without cause, his dismissal is illegal. after receipt of said appointments, the Commissioner of Civil Service shall
We find the petition meritorious.
When respondent Verra was appointed chief of police on 167

January 14, 1960, Lajer had just been dismissed from office with
several other members of the police force. The validity of Verra’s VOL. 120, JANUARY 27, 1983 167
appointment, therefore, hinges on the legality of Lajer’s removal. It Costin vs. Quimbo
is elementary in the law of public officers that

166
not have made any correction or revision, then such appointments shall be
deemed to have been properly made. x x x.’ ”

166 SUPREME COURT REPORTS ANNOTATED the attestation by the provincial treasurer of Leyte **was necessary to
Costin vs. Quimbo
make the appointment of petitioner Lajer effective. However, these
requirements could not be complied with because Lajer, who had
been appointed on November 25, 1959 was replaced on January 14,
no person, no matter how qualified and eligible he is for a certain 1960 by the new mayor of the municipality who appointed Verra in
position may be appointed to an office which is not vacant. There his stead. As pointed out in Dichoso v. Valdepenas (5 SCRA 1069,
can be no appointment to a non-vacant position. The incumbent 1075), the incoming mayor should have awaited the action of the
must first be legally removed or his appointment validly terminated. provincial treasurer and later, the Commissioner of Civil Service,
The lower court’s error lies in its looking at the issues primarily before appointing his own protege to a position with an incumbent
from the viewpoint of Verra’s removal, his qualifications and occupying it. Respondent Verra cannot rely on the absence of an
eligibility for the position, and whether or not his dismissal was attestation from the provincial treasurer and a certification from the
valid. In the process, the lower court overlooked the fact that Verra Civil Service Commissioner insofar as Lajer’s appointment is
could not have been permanently appointed to the contested position concerned because by the fact of Verra’s appointment, these
because no less than the Court of Appeals had declared that his requirements could no longer be fulfilled. Mayor Octavio Traya took
predecessor, Estanislao Lajer was illegally terminated from office the appointments away from the office of the Provincial Treasurer
and must be reinstated to his former position. before they could be acted upon. The Commissioner could no longer
Respondent Verra argues that Lajer’s appointment as chief of act within 180 days.
police was temporary and terminable at the pleasure of the The insuperable factor, however, which stands in the way of
appointing power. Verra’s reinstatement with backwages for eighteen (18) years from
The private respondent is correct in asserting that when the 1964 to the present is the Court of Appeals decision in La-jer et al.
promotional appointment of Lajer was made in 1959, it could not be v. Traya et al. (CA-G.R. No. 29313-R, January 22, 1966). The
considered final or complete. Under Section 2(a) of Rule VI, the Court of Appeals was presented squarely with the issue of whether
Civil Service Rules implementing Section 16(g) of Republic Act or not Estanislao Lajer and seven other petitioners were illegally
2260, an appointment extended by an officer duly empowered to separated from the service by Mayor Octavio Traya. In a decision
make it is not final and complete until after the Commissioner of penned by Justice Salvador V. Esguerra, concurred in by Presiding
Civil Service has certified that such an appointment may be made. Justice Conrado V. Sanchez and Justice Magno S. Gatmaitan, the
(Gorospe v. Secretary of Public Works and Communications et al., First Division of the Court of Appeals ruled that Estanislao Lajer,
105 Phil. 129) Mariano
It is likewise true that under Section 20 of Republic Act 2260
which, in part, provides:
______________
 ** Republic Act 6040, in creating regional offices of the Civil Service 169
Commission, removed the authority to attest or approve appointments vested upon
provincial or city treasurers. Under Presidential Decree No. 807, Section 8 (h) “(a)n
VOL. 120, JANUARY 27, 1983 169
appointment shall take effect immediately upon issue by the appointing authority if
the appointee assumes his duties immediately and shall remain effective until it is Costin vs. Quimbo
disapproved by the Commission x x x.”
action for reinstatement in the court of first instance and in the court
168
of appeals. And as earlier stated, the certification by the
Commissioner of Civil Service that Mr. Verra possessed the
168 SUPREME COURT REPORTS ANNOTATED qualifications and the eligibility, doubtful though the latter may be,
Costin vs. Quimbo
for the position of chief of police could not have made the
proceedings, in court moot and academic much less rendered inutile
the 1966 decision of the Court of Appeals granting the petition for a
Tomines, and Melecio Jervoso were illegally removed from office writ of mandamus in Lajer’s favor.
and must be reinstated. Moreover, the equities of the case do not lean towards respondent
Respondent’s Verra now contends that Lajer was ordered Verra. Estanislao Lajer had been a member of the Abuyog police
reinstated to the position of sergeant and not chief of police. Mr. force since January 1, 1949. He had passed the patrolman’s
Verra cannot read into a Court of Appeals decision something which examination, was promoted to corporal, later to sergeant, and finally
is not there. to chief of police in his tenth year of service. On the other hand,
Mr. Lajer did not go to court to contest the position of police Higinio Verra was a school teacher with apparently no police
sergeant or to question his removal as police sergeant. He was never experience whatsoever when he was appointed chief of police on
removed from a position as sergeant of police. Lajer filed a petition January 14, 1960. It is too late in the day now to debate the
for mandamus to be reinstated as chief of police. The January 30, correctness of the Court of Appeals decision that non-attestation was
1961 decision of Judge S. C. Moscoso of the Court of First Instance not sufficient cause for outright removal. The decision has long been
of Leyte discusses an appointment as chief of police. When the final and was implemented in 1966. There is similarly no point in
decision ordering Lajer’s reinstatement was appealed to the Court of resolving the issue as to who has better qualifications and more
Appeals, the appellate court specifically described petitioner Lajer as nearly appropriate eligibility for the position of chief of police—a
chief of police and petitioner Mariano Tomines, as police sergeant. police sergeant with ten years experience and patrolman’s eligibility
When Lajer and Tomines were ordered reinstated, it was to the said or a school teacher with a senior teacher’s eligibility.
positions as chief of police and police sergeant respectively. Verra asks if he should be bound by the decision of the Court of
The argument of respondent Verra that Mayor Tisado should Appeals, not having been a party to the case. The issue before the
have refrained from reinstating Lajer as chief of police Court of First Instance and the Court of Appeals was whether or not
notwithstanding the decision of the Court of Appeals because he, the Mayor, Municipal council, Municipal Treasurer, and the
Verra, had filed a case with the Court of First Instance contesting the Municipality of Abuyog, Leyte illegally terminated the chief of
same position betrays a lack of understanding of a final and police, sergeant of police, and six other members of the police force
executory decision of an appellate tribunal. The decision of the from their respective offices and whether or not mandamus may
Court of Appeals superseded any decision that the Court of First issue to compel their reinstatement. Mandamus having issued, any
Instance or the Civil Service Commissioner could have rendered on person whether Mr. Higinio Verra or any other appointee to the
the same issue and the same facts. It was precisely the termination of contested position must give up the office in favor of the officer
Lajer’s promotional appointment as chief of police which the adjudged by the courts to be entitled to it.
appellate court struck down. Since Lajer was not validly terminated WHEREFORE, the instant petition is hereby granted. The
from public office and, as a matter of fact, was ordered reinstated decision of the respondent court in Civil Case No. 3606 is
through a writ of mandamus, it follows that there was no vacancy in
the office of chief of police on January 14, 1960 and there was no 170
office to which Higinio Verra could have been appointed. The
discussions in the decision of the respondent judge on whether or
170 SUPREME COURT REPORTS ANNOTATED
not Higinio Verra was validly removed from office are all beside the
point. Never having been validly appointed, there was no office Costin vs. Quimbo
from which he was illegally dismissed. At most, he was a de facto
officer during the years when Lajer was litigating his
 reversed and set aside and the petition for quo warranto with
mandamus filed in the court a quo is ordered dismissed.
SO ORDERED.

     Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez

and Relova, JJ., concur.

Petition granted.

Notes.—The municipal mayor under the Old Civil Service Law

(found in Chapter 27 of the Revised Administrative Law) cannot
legally terminate the services of the Municipal Chief of Police where
the latter’s appointment was attested as permanent by the
Commissioner of Civil Service. (Salcedo vs. Court of Appeals, 81
SCRA 408.)
When the reasons for an employee’s appointment are substantial
and well-taken, having been reviewed by the Civil Service
Commissioner and found to be sustainable, the Court should not
substitute its judgment for that of the Civil Service Commissioner in
the absence of a grave abuse of discretion. (Sison vs. Pangramuyen,
84 SCRA 364.)
It is the duty of petitioner, upon his receipt of the memorandum
from the Philippine Veterans Bank allowing her reinstatement, to
report for work without having to wait for the final action of the
Supreme Court on her appeal from the petition for mandamus asking
for such reinstatement. (Lina vs. Purisima, 82 SCRA 344.)
The appointing authority is given wide discretion in extending
appointments to qualified persons. (Eugenio vs. Torrijos, 85 SCRA
512.)
Voluntary appearance of accused at pre-suspension hearing
amount to his submission to the court’s jurisdiction even if no
warrant of arrest has yet been issued. (Layosa vs. Rodriguez, 86
SCRA 300.)
The Civil Service Commission has no power to determine the
kind or nature of the appointment extended by the appointing officer.
(Re: Elvira C. Arcega, 89 SCRA 318.)

——o0o——

171

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