COSTIN, LAJER, KANEN as Chief of Police; TISADO, TRAYA as Municipal Mayor; IPONG as Municipal Treasurer; and THE MUNICIPAL

COUNCIL OF ABUYOG, LEYTE, petitioners, vs. HON LOPE C. QUIMBO, Judge of the C F I of Leyte, and HIGINIO VERRA, respondents.

3. WON Verra is bound by the decision of the lower court in Case No. 2713 for mandamus, not being a party to it. Held/ Ratio: 1. No. The validity of Verras appointment hinges on the legality of Lajers removal. It is elementary in the law of public officer that no person, no matter how qualified and eligible for a certain position, may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated. The lower court overlooked the fact that Verra could not have been permanently appointed to the position because no less than the CA had declared that his predecessor, Lajer, was illegally terminated from office and must be reinstated. Verra argues that Lajers appointment was temporary and terminable at the pleasure of the appointing power as it could not be considered final or complete, not having been attested by the prov. treasurer in accordance with Sec. 20 of RA 2260 and not having been certified by the Commissioner of Civil Service as provided for in Section 2(a) of Rule VI of the Civil Service Rules implementing Section 16(g) of RA 2260. However, said requirements could not be complied with because Lajer who have been appointed on Nov. 25, 1959 was replaced on Jan 14, 1960 by the new mayor who appointed Verra. Citing Dichoso vs. Valdepenas, SC stated that the incoming mayor should have awaited the action of the prov. treasurer and the Commissioner, before appointing his own protg. Thus, Verra cannot rely on the absence of an attestation and certification because by the fact of Verras appointment, these requirements could no longer be fulfilled. Mayor Traya took the appointment away from the Office of the Prov. Treasurer and subsequently from the Commissioner before they could be acted upon. 2. Lajer was reinstated to the position of chief of police. Mr. Lajer did not go to court to contest the position of police sergeant. Lajer filed a petition for mandamus to be reinstated as chief of police. When the decision of the CFI of Leyte ordering Lajers reinstatement was appealed to the CA, the CA specifically described petitioner Lajer as chief of police. 3. Yes. The issue before the CFI and the CA in the Mandamus suit was WON the Mayor, Municipal council, Treasurer, and the Municipality of Abuyog illegally terminated the chief of police, sergeant, and six other members of the police and WON mandamus may issue to compel their reinstatement. Mandamus having issued, any person whether Verra or any other appointee to the contested position must give up the office in favor of the officer adjudged by the courts to be entitled to it. Disposition: Petition is hereby granted.

Facts: Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte since Jan 1, 1949. He was extended a promotional appointment as sergeant of police on Oct 15, 1958. On Nov 25, 1959, the outgoing municipal mayor of Abuyog accorded him another promotional appointment as chief of police. This last appointment was not attested and approved as required by law. On Jan 14, 1960, the new municipal mayor dismissed Lajer and 8 other policemen and extended to respondent Higinio Verra a permanent appointment as Chief of Police. Verras appointment was eventually approved as permanent in accordance with Sec. 24 (b) of Republic Act 2260 by the Commissioner of Civil Service. On Jan 19, 1960, Lajer, et al filed an action for mandamus (Civil Case No. 2713) against the mayor, treasurer and the municipal council of Abuyog, contesting their separation from the service. While this petition for mandamus was pending, there was a change in the admin as a result of the 1963 local elections. The newly elected mayor dismissed Verra and appointed petitioner Marcial Costin as chief of police. On Dec 29, 1964, Verra filed Civil Case No. 3606 for quo warranto with mandamus against Costin, the mayor, and the treasurer, questioning the legality of his separation alleging that he could not be dismissed because he was a civil service eligible and was in possession of a permanent appointment attested by the CSC. The mandamus suit (Civil Case No. 2713) filed by Lajer, et al prospered and was appealed to the CA. On Jan 22, 1966, CA held that Lajer and 2 others were illegally removed from office and are entitled to reinstatement with payment of the back wages. Thus, petitioner (then mayor) Tisado reinstated Lajer as chief of police on April 1, 1966. On Dec 2, 1969, respondent judge rendered his decision in Civil Case No. 3606, declaring Verra to be entitled to immediate reinstatement with back salary. Petitioners then brought this decision to the SC in a petition for review, seeking its annulment or reversal. Issues: 1. WON the appointment of Verra to the position of Chief of Police of Abuyog was valid and consequently his removal therefrom illegal. 2. Whether the CA in its decision in the Civil Case No. 2713 ordered the reinstatement of Lajer to the position of Sergeant of Police or Chief of Police.