G. R. No. 20741. January 31, 1964
SOCORRO A. GILILERA, PETITIONER, VS. CORAZON FERNANDEZ AND ABELARDO SUBIDO, AS EXECUTIVE OFFICER OF THE BOARD OF EXAMINERS, RESPONDENTS.
BARRERA, J.:
On December 26, 1961, Socorro A. Gillera was extended an ad-interim
appointment as Member of the Board of Pharmaceutical Examiners by then
President Carlos P. Garcia, for afixed: term,of three years to fill the
position being vacated by Board Examiner Dr. Federico Cruz, whose term
was. expiring December 28, 1961. Gillera accepted the appointment, took
the bath of office on December 28, 1961, assumed and discharged the
functions appertaining thereto—preparing.the questions,on the subjects
assigned to her for the examinations which, actually were given on
January 2, 3, 4, and 7, 1962. In the meantime or under date of December
31, 1961, she received a communication from the Executive Secretary
informing her of the ” withdrawal” or recall of her ad-interim appointment in view of the President’s Administrative Order No. 2.
On January 11, 1962, the President designated Gillera as Acting
Member of the Board of Pharmaceutical Examiners, effective January 2,
1962, “to continue only until after the results of the Pharmaceutical
Examinations now being given by the Board has been approved by this
Office and released.” It was therein stated that said designation was
made “as a matter of emergency in order not to disrupt public service
and not to prejudice the candidates in the current pharmacist
examination.” Allegedly in view of the fact that the session of
Congress terminated without the examination result having been
released, the President issued to Gillera another designation, on May
18, 1962, also until the results of the examination were approved and
released. On the other hand, her ad-interim appointment of December 28,1961 was confirmed by the Commission on Appointments on May 9, 1962.
The results of the pharmaceutical examinations were released on June
14, 1962. In the succeeding examinations, which were given on July,
1962, Gillera again took part as Member of the Board. On December 29,
1962, Corazon C. Fernandez was appointed to tiie same position vacated
by Dr. Cruz which at the time, was already occupied by petitioner.
Alleging that the designation of Fernandez to the position occupied by
her and to which she had qualified was null and void,. Socorro Gillera
filed the instant petition for quo warranto and prohibition against said appointee and the Civil Service Commissioner, as Executive Officer of the Board of Examiners.
In the answer filed by the Solicitor General for the respondents, it
was contended, among others, that the valid discharge by petitioner
Gillera of the functions of Member of the Pharmaceutical Board in
connection with the January, 1962 examinations was not due to the
ad-interim appointment extended to her on December 26, 1961, because
that was withdrawn and recalled pursuant to Administrative Order No. 2
of the President, but by virtue of the two presidential designations on
January 11 and May 18, 1962, which terminated upon the release of the
examination results on June 14, 1962; that her participation in the
July, 1962 examinations was effected upon the verbal permission and on
the belief of the former Executive Secretary of the Board of Examiners,
Amado del Rosario, that in the absence of a successor, petitioner could
continue d’scharging the office of examiner under the “hold-over”
doctrine; that the designation of respondent Fernandez to the position
of Dr. Cruz which petitioner (Gillera) was occupying by virtue of her
designation” indicated that the latter’s right to the same position had
already ceased.
The only issue to be determined here is whether petitioner’s
ad-interim appointment of December 28, 1961 was validJy recalled or
withdrawn by the President’s Administrative Order No. 2, in the light
of the ruling laid down by this Court in the case of Aytona vs.
Castillo.[1]
There is no question that petitioner was extended an ad-interim
appointment on December 26, 1961 (although to take effect December 28,
1961) or after December 13, 1961, and apparently is covered by
Administrative Order No. 2, which, according to respondents, was
declared valid by this Court in the Aytona case. It must be remembered
however, that in our resolution of March 30, 1962 clarifying the ruling
enunciated in the aforementioned case, we said:
“* * * the resolution of the majority in this case
has not specificially declared the ‘mid-night’ appointments to he.
void. The resolution in substance held that the Court had doubts about
their validity and having due regard to the separation of powers and
the surrounding circumstances, it- declined to overthrow the executive
order of cancellation and’to grant relief.”
In other words, this Court not only did not categorically declare
Administrative Order No. 2 valid and all appointments made by then
outgoing President Garcia, ineffective but clearly indicated that its
decision was mare influenced by fee doubtful character of the
appointments themselves and not by the contention that the President
had validly recalled them. As a matter of fact, in the decision in that
Aytona case it was stated that, ” the filling up of vacancies
(by the outgoing President) in important positions, if few, and so
spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee’s
qualifications may undoubtedly be permitted.” I’t is for the foregoing
basie consideration, i.e., the necessity of filling the position, that
the appointee is qualified, and that it was not one of those “mass ad-interim
appointments” issued in a single night, that this Court upheld the
validity of an appointment to the position of Auxiliary Justice of the
Peace[2] extended by
President Garcia and released on December 20, 1961, notwithstanding
Administrative Order No. 2 of President Macapagal.
In the instant case, even the new President recognized the need for
the immediate filling of the position of Member of the Board of
Pharmaceutical Examiners, in view of the examination that v/ero given
on January 2, 8, 4, and 7, 1962, that he (the President) saw it fit,
“as a matter of emergency in order not to disrupt public service ” to
“designate” petitioner herself to the same position to which she was
previously appointed and had qualified. There is also no allegation
that petitioner is not qualified to the said office, or that her
appointment was one of those attended by the “mad scramble in
Malacaiiang” in the evening of December 29,1961. On the contrary, it is
not controverted by respondents that petitioner’s appointment was
extended on December 26, 1961 cr even before the actual expiry of the
term of Examiner Cruz, which was a few days before the examinations
would take place, although said appointment was to take effect only on
December 28, 1961, and an fact petitioner took her oath of office only
on the latter date. Clearly, it cannot be said that in the instant
case, petitioner’s appointment was not the result of the President’s
deliberate action, considering her qualification and the exigency of
the service.
Wherefore, petitioner’s appointments which was duly confirmed by the
Commission on Appointments is hereby declared valid and she is entitled
to the position Of Member of the Board of Pharmaceutical Examiners.
Respondent Corazon C. Fernandez is directed to vacate the position and
deliver the same to petitioner. Without costs. So ordered.
Bengzon C. J., Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon, Regala and Makalintal, JJ., concur.
Petition granted.
[1] G. R. No. L-19313, promulgated January 19, 1962.
[2] Merrera vs. Liwag, G, R. No. L-20079, Promulgated September 30, 1963.
DISSENTING OPINION
PADILLA, J.:
For the reasons stated in my concurring opinion in the case of Aytona vs.
Castillo, G. R. No. L-19313, 19 January 1962, to which I make reference
and which I re-incorporate and reiterate to avoid repetition, the ad-interim
appointment of the petitioner Socorro A. Gillera on 26 December 1961 by
the then President of the Republic to fill the poseition of Dr.
Federico Cruz, as member of the Board of Pharmaceutical Examiners,
whose term was to expire on 28 Decemner 1961, and the assumption of
office to which she had been appointed and the performance of the
duties thereof by her on and from the last mentioned dated, lapsed,
ended or expired on 30 December 1961. As she was not appointed ad interim
after the 30th day of Decemner 1961 only, which, it must be presumed,
she had accepted by performing the duties of the office, the
confimation of her appointment by the Commission on Appointment on 9
May 1962 was of no validity and effect, as she had no ad-interim appointment that was to be or could be confirmed. The ad interim appointment of the petitioner having expired on 30 December 1961 and the confirmantion of her lapsed or non-extant ad interim
appointment being of no validity and effec, she is not entitled to the
position or office to which the respondetn Corazon C. Fernandez has
been lawfully appointed. The petition for a writ of quo warranto should
be dismissed.