Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20618 May 25, 1965
HERMENEGILDO R. ROSALES, petitioner,
vs.
FLAVIANO YENKO, respondent.
Crispin D. Baizas and Associates for petitioner.
Office of the Solicitor General for respondent.
DIZON, J.:
On July 26, 1958, former President Carlos P. Garcia appointed petitioner ad interim Chairman of the Board of Examiners for Chemists for a term expiring July 15, 1961. This appointment was submitted to, and was confirmed by, the Commission on Appointments and petitioner duly qualified and discharged the duties of the office.
On July 16, 1961, petitioner was reappointed as Acting Chairman of the same Board. On November 6 of the same year, President Garcia signed petitioner's ad interim appointment to the same office for another term expiring on July 15, 1964. This ad interim appointment, however, was not released and delivered to petitioner, as conclusively indicated by the fact that the original thereof remained in the Office of the President. Respondent, however, admits that a copy thereof was transmitted to the Commission on Appointments on December 26, 1961, on the basis of which said Commission took cognizance of the appointment and confirmed it on May 17, 1962. Then on July 31, 1962, the Commissioner of Civil Service informed petitioner that his last ad interim appointment had been recalled, withdrawn, and declared without effect by virtue of Administrative Order No. 2, dated December 31, 1961, and on November 5, 1962, President Diosdado Macapagal appointed respondent Yenko as Acting Chairman of the Board of Examiners for Chemists, who thereafter assumed the functions and duties of said office.
On December 14, 1962, petitioner filed the petition now before Us praying that we:
1. Declare null and void the designation of respondent as Acting Chairman of the Board of Examiners for Chemists;
2. Declare as valid, legal and subsisting petitioner's appointment as Chairman of the Board of Examiners for Chemist for a term expiring on July 15, 1964, which appointment has been duly confirmed by the Commission on Appointments;
3. By way of provisional remedy, issue a writ of preliminary injunction enjoining, restraining respondent from performing any act pursuant to his appointment aforementioned;
4. Permanently prohibit respondent from assuming said office and from performing any of the duties and obligations thereof during the term of office of petitioner;
5. Sentence respondent to pay for the costs of this suit;
6. Grant such other relief as may be deemed just and equitable under the premises.
It will be noticed that the petition under consideration does not allege that the original of the last ad interim appointment was transmitted to, and was received by, petitioner — obviously because said original was never released by the Office of the President. Neither does it allege that, upon receipt thereof, petitioner had accepted the appointment and duly qualified for the position by taking the corresponding oath of office.
In relation to the above matters, petitioner merely alleges that by virtue of his designation as Acting Chairman and later by virtue of the last ad interim appointment, "petitioner performed the duties and obligations of Chairman" of the Board of Examiners for Chemists and enjoyed all the rights and privileges appurtenant thereto. Further on this matter, in an affidavit attached to his memorandum as Annex A, petitioner could go no further than to state that on November 9, 1961, the then Acting Executive Secretary Edilberto Gallares notified him by telephone that his last ad interim appointment had already been signed by President Garcia and was ready for submission to the Commission on Appointments, and that on a subsequent social occasion in Malacañang President Garcia himself told him that his ad interim appointment had already been signed by him. These allegations are not sufficient to take the place of a clear allegation and proof that the ad interim appointment aforesaid was not only signed but was released to petitioner, and that by virtue thereof, he had accepted it and duly qualified for the position. We are of the opinion, therefore, that, on the basis of petitioner's own allegations, his last ad interim appointment was incomplete and that, as a result, there was in fact and in law no ad interim appointment that could be validly transmitted to, and acted upon by, the Commission on Appointments on May 17, 1962.1äwphï1.ñët
WHEREFORE, petitioner having failed to allege and prove that he is rightfully entitled to the Office of Chairman of the Board of Examiners for Chemists, the petition under consideration is hereby dismissed, without costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Concepcion, J., took no part.
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