HERMENEGILDO R. ROSALES, PETITIONERS, VS. FLAVIANO YENKO, RESPONDENT.

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
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recalled, withdrawn, and declared without effect by virtue of Administrative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
Chemists for a term expiring on July 16, 1964, which
appointment has been duly confirmed by the Commission on
Appointment;

3. By way of provisional remedy,
issue a writ of preliminary injunction enjoining and 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; and

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.

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.