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^{CONCURRING OPINION}

PUNO, J.:

I

The far reaching fall-out effects of the majority opinion on the merit and fitness philosophy of our civil service system compel the submission of this humble concurring opinion. The doctrine barring appeal in exoneration cases was first enunciated in the 1990 case of Paredes, where this Court held:¹

As regards G.R. No. 89530, the crucial issue to be resolved is whether or not petitioner Paredes has the legal personality to appeal the decision of the MSPB absolving private respondent Amor of all charges except for habitual tardiness for which the latter was reprimanded.

Appeal in judicial proceedings is a statutory right that must be exercised only in the manner and in accordance with the provisions of law (Ozaeta v. Court of Appeals, G.R. 83281, December 4, 1989; Velasco v. Court of Appeals, 51 SCRA 439). This doctrine is also applicable in quasi-judicial proceedings so that one must first ascertain the law applicable to determine whether or not the party can appeal the order or decision.

Section 37 of Presidential Decree No. 807, provides, viz:

SEC. 37. (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other actions to be taken.

(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head.

(c) An investigation may be entrusted to the regional director or similar officials who shall make the necessary report and recommendation to the chief of bureau or office or department, within the period specified in Paragraph (d) of the following Section.

(d) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.

Section 39 thereof also provides, viz:

SEC. 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward the records of the case, together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date or receipt thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision.

(b) A petition for reconsideration shall be based only on any of the following grounds: (1) new evidence has been discovered which materially affects the decision rendered; (2) the decision is not supported by the evidence on record; (3) errors of law or irregularities have been committed prejudicial to the interest of the respondent: Provided, that only one petition for reconsideration shall be entertained.

Based on the above provisions of law, appeal to the Civil Service Commission in an administrative case is extended to the party adversely affected by the decision, that is, the person of the respondent employee who has been meted out the penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. The decision of the disciplining authority is even final and not appealable to the Civil Service Commission in cases where the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. Appeal in cases allowed by law must be filed within fifteen days from receipt of the decision.

Here, the MSPB, after hearing and submission of memoranda, exonerated private respondent Amor of all charges except for habitual tardiness. The penalty was only a reprimand so that even private respondent Amor, the party adversely affected by the decision, cannot even interpose an appeal to the Civil Service Commission.

As correctly ruled by private respondent, petitioner Paredes the complainant is not the party adversely affected by the decision so that she has no legal personality to interpose an appeal to the Civil Service Commission. In an administrative case, the complainant is a mere witness (Gonzales v. De Roda, 64 SCRA 120). Even if she is the Head of the Administrative Services Department of the HSRC, as a complainant she is merely a witness for the government in an administrative case. No private interest is involved in an administrative case as the offense is committed against the government.

Paredes was reiterated a year later or in 1991 in Mendez, where, again with Mr. Justice Paras as ponente, this Court held:²

The petitioner filed a motion for reconsideration, assailing the reversal of the city mayors decision by the MSPB and the CSC on the ground that Coloyan is not an aggrieved party or party adversely affected by the decision allowed by law to file an appeal. Moreover, the petitioner claimed that his exoneration by the city mayor is unappealable pursuant to Section 37, paragraph (b) of P.D. 807.

The CSC, however, denied said motion for reconsideration ruling that there is nothing in the said law which precludes an appeal from the decision of the disciplining authorities to determine, among others, whether the decision rendered is supported by the facts on record and the law.

Hence, the present petition.

We find merit in the petition.

It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. (Victorias Milling Co., Inc. vs. Office of the Presidential Assistant for Legal Affairs, 153 SCRA 318).

A cursory reading of P.D. 807, otherwise known as The Philippine Civil Service Law, shows that said law does not contemplate a review of decisions exonerating officers or employees from administrative charges.

Section 37 paragraph (a) thereof, provides:

The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. x x x ' (italics supplied) (p. 7, Rollo)

Said provision must be read together with Section 39, paragraph (a) of P.D. 805 which contemplates:

Appeals, where allowable, shall be made by the party adversely affected by the decision x x x. (italics supplied) (p. 104, Rollo)

"The phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an aggrieved party because he is not the respondent in the administrative case below.

"Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent to one month against erring employees.

"By inference or implication , the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal."

Again a year later or in 1992, in Magpale, Jr., this time with Mr. Justice Melo as ponente, the Court reiterated the Paredes doctrine, viz:³

After Mendez vs. Civil Service Commission (204 SCRA 965) [1991], the extent of the authority of respondent CSC to review the decisions of the MSPB is now a settled matter.

The Court, in said case held:

It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. (Victorias Milling Co., Inc. vs. Office of the Presidential Assistant for Legal Affairs, 153 SCRA 318).

A cursory reading of PD 807, otherwise known as The Philippine Civil Service Law, shows that said law does not contemplate a review of decision exoneration (sic) officers or employees from administrative charges.

Section 37, paragraph (a) thereof, provides:

The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. x x x (italics supplied) (p. 7, Rollo)

Said provision must be read together with Section 39, paragraph (a) of P.D. 805 which contemplates:

Appeals, where allowable, shall be made by the party adversely affected by the decision x x x. (italics supplied) (p. 104, Rollo)

The phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an aggrieved party because he is not the respondent in the administrative case below.

Finally, pursuant to Section 37, paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent to one month against erring employees.

By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal. (pp. 967-968)

The above ruling is a reiteration of the earlier pronouncement in Paredes v. Civil Service Commission (192 SCRA 84 [1990]) cited by petitioner, x x x

x x x

While it is true, as contended by respondent Civil Service Commission, that under Section 12 (Par. 11), Chapter 3, Subtitle A, Book V of Executive Order 292, the CSC does have the power to

Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. x x x

the exercise of the power is qualified by and should be read together with the other sections of the same sub-title and book of Executive Order 292, particularly Section 49 which prescribes the following requisites for the exercise of the power of appeal, to wit:

(a) the decision must be appealable;

(b) the appeal must be made by the party adversely affected by the decision;

(c) the appeal must be made within fifteen days from receipt of the decision, unless a petition for reconsideration is seasonably filed; and

(d) the notice of appeal must be filed with the disciplining office, which shall forward the records of the case, together with the notice of appeal to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any.

Under Section 47 of the same Code, the CSC shall decide on appeal all administrative disciplinary cases involving the imposition of:

(a) a penalty of suspension for more than thirty days; or

(b) fine in an amount exceeding thirty days salary; or

(c) demotion in rank or salary or transfer; or

(d) removal or dismissal from office.

The February 5, 1990 decision of the MSPB did not involve dismissal or separation from office, rather, the decision exonerated petitioner and ordered him reinstated to his former position. Consequently, in the light of our pronouncements in the aforecited cases of Mendez vs. Civil Service Commission and Paredes vs. Civil Service Commission, the MSPB decision was not proper subject of appeal to the CSC.

Settled is the rule that a tribunal, board, or officer exercising judicial functions acts without jurisdiction if no authority has been conferred by law to hear and decide the case (Acena v. Civil Service Commission, 193 SCRA 623 [1991]).

In 1994, in Mendoza vs. Civil Service Commission, the Court, with Mr. Justice Quiason as ponente, avoided the Paredes rule by holding:⁴

x x x

We decided this case with full awareness of the decisions in Paredes v. Civil Service Commission, 192 SCRA 84 (1990) and Mendez v. Civil Service Commission, 204 SCRA 965 (1991), where we held that only the respondent in the administrative disciplinary case, not the complainant, can appeal from a decision of the Merit Systems Protection Board (See also Magpale v. Civil Service Commission, 215 SCRA 398 [1992]). These decisions were anchored on the interpretation of Section 39(a) of P.D. No. 807, the Philippine Civil Service Law, which provides that appeals to the CSC shall be made by the party adversely affected by the decision. We interpreted the quoted phrase as referring to the respondent in the administrative case.

When private respondent appealed the decision of the MSPB to the CSC, petitioner never questioned the propriety of the appeal and preferred to defend the correctness of the decision. Likewise, petitioner failed to question before this Court the right of private respondent to appeal from the decision of the MSPB. We treat such inactions of petitioner as a waiver on his part to question the authority of the CSC to review the decision of the MSPB. A law limiting the right to appeal to the respondent in the administrative case is a rule of procedure, not of substantive law. Failure to invoke timely a rule of procedure in favor of a party constitutes a waiver thereof (Republic v. Judge Villanueva, G.R. No. 83333, February 13, 1989, En Banc, Minute Resolution).

II

With humility, I make the submission that is time to strike down the doctrine disallowing appeals to the Civil Service Commission when the decision exonerates a government official or employee from an administrative charge. The doctrine is principally based on a constricted interpretation of Section 39 of P.D. No. 807 (Civil Service Law) which states:

Sec. 39. (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. x x x

According to Paredes, Mendez and Magpale, the phrase party adversely affected by the decision refers alone to the respondent government official or employee against whom the administrative case is filed. They excluded from its compass the party complainant whose charge is dismissed. Hence, when the respondent government official or employee is exonerated, the decision is deemed final as the party complainant is precluded from appealing.

I find it difficult to agree with the above interpretation which is not only too narrow but is subversive of the essence of our civil service law. In the case at bar, private respondent is the Vocational Administrator of the Balicuatro College of Arts and Trades. His charged with the offense of nepotism for the appointment of two sons as driver and utility worker under his immediate control and supervision. It is beyond argument that nepotism is prohibited by our civil service law for it breeds inefficiency, if not corruption, in government service. The critical question, therefore, is: who has the standing to prevent the violation of this law and protect public interest? I submit that a taxpayer has the standing to bring suit to void nepotic acts for he has an interest that appointments in the civil service shall be made only according to merit and fitness x x x.⁵ A taxpayer has a right to good government and good government cannot result from appointments determined by bloodlines. The Civil Service Law itself recognizes that there are offenses which can be the subject of a complaint by any private citizen. Thus, Section 37 of the law allows any private citizen to file a complaint against a government official or employee directly with the Commission. Section 38 also recognizes that administrative proceedings may be commenced against a subordinate officer or employee by the head of the department or office of equivalent rank, or head of local government or chiefs of agencies, or regional directors or upon sworn written complaint of any other persons. The general rule is that one who has a right to be heard has standing to seek review of any ruling adverse to him. Hence, if a private citizen has the right to file an administrative complaint, he must also have the right to appeal a dismissal of his complaint, unless the law clearly precludes his right of appeal for indubitable policy reasons. A contrary rule will diminish the value of the right to complain. The cases of Paredes, Mendez and Magpale do not give any policy reasons why the dismissal of a charge of nepotism cannot be appealed. They merely resort to doubtful inferences in justifying the bar to appeals. Such an approach goes against the rule that preclusions of judicial review of administrative action . . . is not lightly to be inferred.⁶

In truth, the doctrine barring appeal is not categorically sanctioned by the Civil Service Law. For what the law declares as final are decisions of heads of agencies involving suspension for not more than thirty (30) days or fine in an amount not exceeding thirty (30) days salary. But there is a clear policy reasons for declaring these decisions final. These decisions involve minor offenses. They are numerous for they are the usual offenses committed by government officials and employees. To allow their multiple level appeal will doubtless overburden the quasi-judicial machinery of our administrative system and defeat the expectation of fast and efficient action from these administrative agencies. Nepotism, however, is not a petty offense. Its deleterious effect on government cannot be over-emphasized. And it is a stubborn evil. The objective should be to eliminate nepotic acts, hence, erroneous decisions allowing nepotism cannot be given immunity from review, especially judicial review. It is thus non sequitur to contend that since some decisions exonerating public officials from minor offenses can not be appealed, ergo, even a decision acquitting a government official from a major offense like nepotism cannot also be appealed.

Similarly, the doctrine barring appeal cannot be justified by the provision limiting the jurisdiction of the Civil Service Commission to review decisions involving: (1) suspension for more than thirty (30) days; (2) fine in an amount exceeding thirty (30) days salary; (3) demotion in rank or salary; and (4) transfer, removal or dismissal from office. Again, there is nothing in this provision indicating legislative intent to bar appeal from decisions exonerating a government official or employee from nepotism. Statutory preclusion of appeals is the exception rather than the rule, for as stressed by Mr. Justice Douglas, tolerance of judicial review has been more and more the rule against the claim of administrative finality.⁷ Yet the cases of Paredes, Mendez and Magpale precisely barred all appeals despite lack of an explicit, positive provision in the Civil Service Law.

III

Moreover, the case at bar involves the right of a party adversely affected to resort to judicial review. This case does not involve the appellate jurisdiction of the Civil Service Commission, i.e., whether or not it has the power to review a decision exonerating a government official from a charge of nepotism. The facts show that it was the Civil Service Commission that at the first instance found Dacoycoy guilty of nepotism. It was Dacoycoy who appealed the decision of the Civil Service Commission to our regular court, more exactly, the Court of Appeals pursuant to the Rules of Court. As Dacoycoy only impleaded Suan as respondent, the Court of Appeals ordered that the Civil Service Commission should also be impleaded as party respondent. The Court of Appeals then reversed the Commission as it cleared Dacoycoy from the charge of nepotism. The question therefore is whether or not this Court is precluded from reviewing the decision of the Court of Appeals on a petition for certiorari under Rule 45. Again, I submit that this Court has jurisdiction to entertain this review. Indeed, under the Constitution, the jurisdiction of this Court has even been expanded to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.⁸ The question is not our lack of jurisdiction but the prudential exercise of power. In certiorari cases alleging grave abuse of discretion, our given task is to determine how much is too much of an abuse.

To my mind, it is also of de minimis importance that the petition of thus Court was filed by the Civil Service Commission. The records will reveal that Suan, the original complainant, wrote to the Civil Service Commission urging it to make the appeal ostensibly for lack of means. But even without Suan, I submit that the nature of the issue in the case at bar and its impact on the effectiveness of government give the Civil Service Commission the standing to pursue this appeal. The issue in the case at bar is basically a legal one, i.e., the proper interpretation of who can be convicted of nepotism, and undoubtedly, this Court has the authoritative say on how to interpret laws. Administrative agencies have always conceded that the final interpretation of laws belongs to regular courts. And the issue has broad implications on the merit and fitness philosophy of our civil service system. Under Sec. 3, Article IX (B) of our Constitution, it is the Civil Service Commission that has oversight of our civil service system. It is thus the party better equipped to argue the diverse dimensions of the issue. It is also the most affected, for it has the duty not to stand still when nepotic practices threaten the principle of meritrocacy in our government. It seems to me self evident that this type of injury to public interest can best be vindicated by the Commission and not by a private person.

There are other disturbing implication if we do not junk the doctrine of non-reviewability of decisions exonerating government officials from charges of nepotism. For one, the doctrine unduly favors officials charged with nepotism, for while we allow further review of their conviction, we disallow review of their exoneration, regardless of the errors. This distorted rule contravenes our distaste against nepotism, a practice whose continuance can fatally erode faith in government. For another, perpetuating a nepotic act, an evil that should be extirpated wherever found, can never be the intent of our legislators who crafted our Civil Service Law. For still another, completely cutting off access to judicial review goes against the spirit of the 1987 Constitution expanding the jurisdiction of this Court. Putting up borders of non-reviewability weakens the judiciarys checking power. Indeed, shielding abusive administrative actions and decisions from judicial oversight will ultimately erode the rule of law. As Justice Brandeis opined, supremacy of law demands that there shall be an opportunity to have some court decide whether an erroneous rule of law was applied and whether the proceeding in which facts were adjudicated was conducted regularly.⁹

As we cross the new millennium, our people will find their lives more and more affected by orders and regulations coming form administrative agencies. Predictably, some of these orders, rules and regulations will devalue rights and violate policy polestars of our Constitution with greater velocity. It is for this reason and more that the 1987 Constitution mandated this Court to be a more active agent in checking abuse of power in government. We will default in this role if we continue to uphold the doctrine of non-reviewability of decisions exonerating government officials from nepotism. A government free from nepotism is a proclamation that needs no precis.

I join the majority opinion.

Endnotes:

---

¹ Penned by J. Paras with Justices Fernan (CJ), Melencio-Herrera, Gutierrez, Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Grino-Aquino, Medialdea and Regalado, concurring. J. Feliciano was on leave.

² The vote shows: Narvasa (CJ), Melencio-Herrera, Cruz, Feliciano, Padilla, Bidin, Grino-Aquino, Medialdea, Regaldo, Davide, Jr., and Romero, JJ., concurring. Gutierrez, Jr., J. concurred in the result. Nocon, J., did not take part in the deliberation.

³ The vote shows Gutierrez, Jr., Feliciano, Padilla, Bidin, Grino-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, and Campos, Jr., JJ., concurring. Narvasa (CJ) and Medialdea, J., were on leave.

⁴ Op cit. The vote shows Narvasa, (CJ), Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan, JJ., concurring.

⁵ Art. IX (B), Sec. 2(2) of the 1987 Constitution.

⁶ Barlow v. Collins, 397 US 159 (1970).

⁷ Dissenting Opinion in Union Pacific Railroad Co. v. Price, 360 US 601, 619 (1959).

⁸ Section 1, Article VIII of the 1987 Constitution.

⁹ Concurring Opinion in St. Joseph Stock Yards Co. v. US, 298 US 38, 84, 56 S. Ct. 720, 740, 80 L. ed. 1033 (1936).