This is a petition for "certiorari and mandamus" filed on 3 September 1992 urging us to render judgment:

"(1) Declaring the 1st Indorsement dated 14 December 1990 of the respondent Secretary of Science and Technology, (Annex "E" hereof), and Resolution No. 91-1036 of the respondent Civil Service Commission, (Annex "G" hereof) null and void;

(2) Ordering the respondent Secretary of Science and Technology to pay the back wages of the petitioner for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated; and

(3) Ordering the respondent Secretary of Science and Technology to pay the petitioner the salary equivalent to the salary of a Planning Assistant from the time of her reinstatement and thenceforward."^[1]

In their comment filed by the Office of the Solicitor General for the respondents on 2 December 1992, the respondents claim that the petitioner received a copy of respondent Civil Service Commission's (CSC) Resolution No. 91-1036 of 29 August 1991 on 5 September 1991 and pray that the petition be dismissed because, on procedural grounds, it was filed out of time and the petitioner violated paragraph 4 of Revised Circular No. 1-88 and Circular No. 28-91; and, on substantive grounds, the decision in G.R. No. 81495 of 4 June 1990^[2] cannot apply to her since she is not a party therein. Moreover, her position was legally abolished, she did not appeal from the abolition, and instead of joining her other co-employees in assailing the legality of their separation from the service, she requested appointment to a position comparable to her former position. Thus, she was appointed to the position of Clerk II on 15 May 1989, which she accepted without reservation.

Indeed, the petitioner failed to comply with the aforesaid Circulars. She does not also deny that she received a copy of the challenged Resolution No. 91-1036 on 5 September 1991. Pursuant to Section 7, subdivision A (Common Provisions), Article IX of the Constitution,^[3] the petitioner had only thirty days from 5 September 1991 within which to bring the said resolution to this Court via a petition for certiorari under Rule 65 of the Rules of Court.^[4] The instant petition was filed only on 3 September 1992 or eleven months and twenty-eight days after her receipt of a copy of the challenged resolution, indisputably beyond the constitutionally mandated period. On this score alone, the petition must be dismissed.

Even on its merits, the petition must likewise fail. The uncontroverted facts culled from the pleadings' of the parties, as well as from our decision of 4 June 1990 in Mendoza vs. Quisumbing^[5] and companion cases, render this conclusion inevitable.

Before 16 April 1988, the petitioner held the position of Planning Assistant in the Philippine Nuclear Research Institute (PNRI), an agency of the Department of Science and Technology (DOST), with an annual salary of P26,250.40.

On 30 January 1987, the President of the Philippines issued E.O. No. 128 reorganizing the DOST. Section 21 thereof provides for the reorganization of the Philippine Atomic Energy Commission (PAEC) and the PNRI. Conformably therewith, PNRI was reorganized and a new staffing pattern or position structure, which abolished certain positions, was adopted. A list of employees who would be retained under the new position structure was posted in the PNRI premises. Those excluded were placed in a manpower pool for possible placements in other DOST agencies. Appointments under the new position structure were thereafter issued to the retained employees.

Among the abolished positions was that of the petitioner. The petitioner, however, "made an appeal with the DOST/RAB to place her to any comparable position to which her qualification would fit,"^[6] which was favorably acted upon by her appointment to the new position of Clerk II with an annual salary of P17,640.00 on 15 May 1989.^[7] She accepted her appointment as Clerk II, a position she presently holds.

In view of our Decision of 4 June 1990 in Mendoza vs. Quisumbing and more particularly of the companion case, G.R. No. 81495 (Arizabal vs. Leviste), wherein we held:

"4)  In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondents-employees in the reorganized department under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries."

the petitioner (who was neither a party in G.R. No. 81495 nor in the case before the Regional Trial Court of Quezon City subject thereof) sent a letter to the Director of the PNRI, dated 3 September 1990,^[8] requesting the payment of back salaries for the period commencing from the abolition of her office until she was appointed as Clerk II and the payment of salary "comparable or equivalent to her former position as Planning Assistant from the time she was phased out up to the present." The PNRI referred this request to the DOST on 12 November 1990.^[9]

In a 1st Indorsement dated 14 December 1990,^[10] the DOST denied the request because she was not a party in G.R. No. 81495 and because there was no finding under Section 9 of R.A. No. 6656 (Reorganization Law) that the petitioner was illegally terminated.

On 4 March 1991, the petitioner, through counsel, sent a letter^[11] to the public respondent CSC requesting that in view of the DOST denial of her request, the CSC should "order the PNRI to pay Ms. Manalo back wages during the period she was phased out up to her reinstatement to the lower position of Clerk II, and, in addition that she be paid the difference between the salary of a Planning Assistant and that of a Clerk II."

In its Resolution No. 91-1036 of 29 August 1991,^[12] the CSC denied the request because the petitioner was not a party in G.R. No. 81495, and although the position of Clerk II is admittedly lower in rank and salary than her previous position of Planning Assistant, upon her request after she had been phased out, she assumed the duties of Clerk II without reservation.

From these facts, it is clear that both the indorsement and the resolution were not issued with abuse, much less grave, of discretion. The petitioner was not compelled to accept the new position. Instead of questioning the new position structure or taking the other alternatives of either accepting separation pay or retiring from the service, she expressed preference for appointment to the new position, voluntarily accepted the appointment thereto, and assumed the new position without reservation. Reluctance or involuntariness in relation thereto is not asserted in her petition and in her letters of 3 September 1990 and 4 March 1991.

The mandamus aspect of this case refers to the payment of the petitioner's (a) "back wages ... for the period from April 16, 1988, the date she was illegally dismissed, to June 14, 1989, the date she was reinstated," and (b) "salary equivalent to the salary of a Planning Assistant from the time of her reinstatement and thenceforward."

Mandamus under Rule 65 of the Rules of Court is a special civil action available to an aggrieved party when any tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes a person from the use and enjoyment of a right or office to which that person is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner's claim for "back wages" could be the appropriate subject of an ordinary civil action and there is absolutely no showing that the said remedy is not plain, speedy and adequate. It does not even seem that the petitioner has given some priority to her claim. She did not claim for it in her 3 September 1990 letter to the PNRI. The first time she mentioned it was in her 4 March 1991 letter to the CSC. Thereafter, and before she filed this petition, she did nothing.

As for the payment of salary equivalent to that of a Planning Assistant, it is clear that the petitioner does not seek reinstatement to the position of Planning Assistant. Since she had in fact asked for her retention in the PNRI and for her appointment to a new position and was accordingly appointed as Clerk II, a position which she voluntarily accepted and which she continues to hold until now, estoppel, which is clearly present, bars her obtainment of the desired relief.

We are not persuaded by the suggestion that the petitioner is only seeking execution of the decision in Arizabal vs. Leviste. The petitioner is not a party therein and is not, therefore, entitled to its execution.

Nor do we agree with the plea in the dissenting opinion that we take this case as one for mandamus in the light of our decision in Cristobal vs. Melchor.^[13] The factual milieu therein does not obtain in this case. Unlike Cristobal who was never reinstated despite his persistent pleas, the herein petitioner asked for and was appointed to the new position of Clerk II, which she accepted without reservation. In Cristobal, this Court considered the viability of an action for mandamus and the grant of favorable relief thereunder even if the said action was filed after one year from the accrual of the cause of action, because it was the "act of the government through its responsible officials more particularly then Executive Secretary Amelito Mutuc and his successors which contributed to the alleged delay in the filing of Cristobal's … complaint for reinstatement."^[14] It appeared therein that Cristobal and the other dismissed employees were assured by Executive Secretary Mutuc that he would work for their reinstatement; however, Mr. Mutuc was replaced by other Executive Secretaries to whom Cristobal "over and over again presented his request for reinstatement and who gave the same assurance that Cristobal would be recalled and re-employed at the 'opportune time.'" This "continued promise of government officials concerned led Cristobal to bide his time and wait for the Office of the President to comply with its commitment."^[15]

Even granting that the petitioner can avail herself of the writ of mandamus, we find no special or cogent reason to justify acceptance of this petition as an exception to this Court's policy concerning the hierarchy of courts in relation to cases where it has concurrent jurisdiction with the Regional Trial Court and the Court of Appeals. In People vs. Cuaresma,^[16] this Court stated:

"A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those 'in aid of its appellate jurisdiction.' This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ('inferior') courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra -- resulting from the deletion of the qualifying phrase, 'in aid of its appellate jurisdiction' -- was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it." (citations omitted)

And in Defensor-Santiago vs. Vasquez,^[17] this Court said:

"One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction."

WHEREFORE, IN VIEW OF ALL OF THE FOREGOING, judgment is hereby rendered DISMISSING the instant petition.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Quiason, Puno, and Mendoza, JJ., concur.
Feliciano and Melo, JJ., in the result.
Bellosillo, J., separate concurring opinion.
Vitug, J., join J. Kapunan in his dissenting opinion.
Cruz and Bidin, JJ., on official leave.

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^[1] Rollo, 6.

^[2] One of the companion cases in Mendoza vs. Quisumbing, 186 SCRA 108 [1990].

^[3] Said section provides in part as follows: "Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."

^[4] Dario vs. Mison, 176 SCRA 84, 111 [1989].

^[5] Supra footnote no. 2.

^[6] Annex "D" of Petition; Rollo, 14.

^[7] Annex "B"; Id., 10.

^[8] Annex "C"; Id., 11-12.

^[9] Annex "D"; Id., 13.

^[10] Annex "E" of Petition; Rollo, 15.

^[11] Annex "F"; Id., 16-17.

^[12] Annex "G"; Id., 18-19.

^[13] 78 SCRA 175 [1977].

^[14] Id. at 183.

^[15] Id. at 184.

^[16] 172 SCRA 415, 423-424 [1989].

^[17] 217 SCRA 633, 651-652 [1993].

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