ULANDU

YNARES-SANTIAGO, J.: ScÓ lex

Before this Court are three consolidated petitions1 [In G.R. No. 124374, petitioner Mayor Mathay questions the decision of the Court of Appeals which upheld Resolution No. 95-3003 dated April 25,1995 of the Civil Service Commission and ordered the reinstatement of private respondents to their former positions at the Department of Public Order and Safety ("DPOS") under permanent status or to comparable positions in the said agency.

In G.R. No. 126366, the assailed decision of the 15th Division of the Court of Appeals found no grave abuse of discretion amounting to lack or excess jurisdiction on the part of public respondent Civil Service Commission when it issued Resolution Nos. 92-1974 and 94-0902 ordering petitioner Ismael A. Mathay to reinstate private respondent Sandy Marquez to a position in the DPOS without dimunition in salary or position.] filed under Rule 45 of the Revised Rules of Court.

The facts behind the consolidated petitions are undisputed.

During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents2 [In G.R. No. 124374 Private respondents are Eduardo A. Tan, Lourdes M. de Guzman, Manuel Chua, Anselmo Mateo, Christopher Santos, Buenaventura Punay, Enrico Bandilla, Felino Camacho, Dante E. Deoquino, Jaime P. Urcia, Jesus B. Regondola, Romualdo Liberato, Cesar Franciso, William Panti Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366 private respondent is Sandy Marquez. In G.R. No. 126354 there is no private respondent (Jovito C. Labajo did not appeal from the order of the Court of Appeals)] to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972.

On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera3 [148 SCRA 446 (1986)] the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . ."4 [Opinion No. 33 of the Secretary of Justice, February 1991.]

On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions.

For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS").

At the heart of these petitions is Section 3 of the Ordinance which provides: Jurisä sc

Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created.

Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992.

On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed.

The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents’ appointments became the seed of discontent from which these three consolidated petitions grew.

We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.

After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990,5 [CSC Resolution No. 92-1974 (G.R. No. 126366)] and ordering their reinstatement to their former positions in the DPOS.6 [CSC Resolution No. 95-3003 (G.R. Jo. 124374)] Petitioner brought petitions for certiorari to this Court,7 [G.R. Nos. 114320 and 120442.] to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari.

In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS.

We agree with petitioner. MisjÓ uris

The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired.

Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions.

In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments."8 [Page 8 of the Fifteenth Division of the Court of Appeals Decision dated January 15, 1996 citing Sinco, Political Law, 1949 ed. pp. 154-155 citing State vs. City of Maulcato, 136 N.W. 164, 41 L.R.A.N.S. 111; People vs. Provinces 35 Cal. 520.] We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337.

The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive.9 [Section 1719 of B.P. 337 provides that, "the city mayor shall...appoint in accordance with Civil Service law, rules and regulations all officers and employees of the city, whose appointments are not otherwise provided in this Code."] The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio unius est exclusio alterius.10 [The express mention of one thing in a law will, as a general rue, mean the exclusion of others not expressly mentioned. This rule as a guide to probable legislative intent is based upon rules of logic and the natural workings of the human mind (Tavora vs. Gavina, 79 Phil. 421)] Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms.

By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases,11 [Orbos vs. Civil Service Commission, 189 SCRA 459 (1990); Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25 SCRA 343 (1968); Said Benzar Ali vs. Teehankee, 46 SCRA 728 (1972); Luego vs. Civil Service Commission, 143 SCRA 327 (1986); Central Bank vs. Civil Service Commission, 171 SCRA 741 (1989)] we have consistently ruled that the Civil Service Commission’s power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. NewÓ miso

The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140.

The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba,12 [256 SCRA 396 (1996)] we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a discretionary power.

When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment.13 [Gloria vs. Judge de Guzman, G.R. No. 116183, October 6, 1995.] This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority.

In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power and must be performed by the officer in which it is vested."14 [227 SCRA 320 (1994)]

The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr. to reinstate private respondents.

Petitioner similarly assails as error the Court of Appeals’ ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance.

In its decision of March 21,1996 the Court of Appeals held:

The decision is based on the wrong premise.

Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out,16 [Rollo (G.R.12633), p. 32.] the private respondents’ appointments in the defunct CSU - - - Jjä lex

It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it.17 [Aparri vs. Court of Appeals, 127 SCRA 234 (1984)] Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed.

In Debulgado vs. Civil Service Commission18 [263 SCRA 184 (1996)] we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment."

While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto,"19 [Rollo (G.R. 126366), p. 21.] this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law.

At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission20 [197 SCRA 168 (1991)] we treated temporary appointments as follows: Acctä mis

Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed.21 [The defunct CSU consisted of 64 positions, to wit:

Number of Positions	Title of Position	Monthly Salary
1	Chief, Intelligence & Security Officer	P10,135.00
1	Asst. Chief Intelligence & Security Officer	P 8,250.00
1	Security Officer III LEX	P 5,670.00
1	Special Police Area Supervisor	P 5,670.00
1	Security Officer II	P 4,418.00
1	Asst. Spl. Police Area Sv	P 4,418.00
4	Security Agent II	P 3,102.00
60	Security Agent I	P 2,752.00
1	Clerk III	P 2,473.00
10	Special Police Corporal	P 2,473.00
1	Clerk II	P 2,250.00
200	Special Policemen	P 2,250.00
- - - - - - - - - -
…..282 Positions ]

We note that Section 1 of Ordinance NC-140 provides:

A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible.

Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. Sâ djad

In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS.

The standing of petitioner Civil Service Commission to bring this present appeal is questionable.

We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal.

Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest."22 [Rule 3, Section 2, 1997 Rules on Civil Procedure.] A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest."23 [199 SCRA 497 (1991)] As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action.

In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement.

We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy24 [G.R. No. 135805, April 29, 1999.] which overturned our rulings in Paredes vs. Civil Service Commission,25 [192 SCRA 84 (1990)] Mendez vs. Civil Service Commission26 [204 SCRA 965 (1991)] and Magpale vs. Civil Service Commission.27 [215 SCRA 389 (1992)] In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system.

The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be overemphasized. The subject of the present case, on the other hand, is "reinstatement."

We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply.

To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review."28 [Judge Calderon vs. Solicitor General, 215 SCRA 876 (1992)] Misä act

In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies,"29 [Chapter 3, Section 12 (11). The Revised Administrative Code of 1987 on the Civil Service Commission.] not to litigate.

Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354.

WHEREFORE, the petitions of Ismael A. Mathay in G.R. No.124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE.

The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED.

No costs.