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^{DISSENTING AND CONCURRING OPINION}

MELO, J.:

Although I completely agree with the result and likewise with the wisdom in which the issues relating to nepotism are threshed out in the majority opinion, I do not agree with the majority opinion stating that the Civil Service Commission may appeal a judgment of exoneration in an administrative case involving nepotism. And Mr. Justice Puno would go further by allowing even a private complainant and by implication, a complainant office, to appeal a decision exonerating or absolving a civil service employee of charges against, or even imposing a penalty upon him. This totally contravenes our well-settled ruling in Paredes vs. Civil Service Commission (192 SCRA 84 [1990]), faithfully and consistently reiterated by the Court En Banc in Mendez vs. Civil Service Commission (204 SCRA 965 [1991]); Magpale vs. Civil Service Commission (215 SCRA 398 [1992]); Navarro vs. Civil Service Commission and Export Processing Zone Authority (226 SCRA 522 [1993]); University of the Philippines vs. Civil Service Commission (228 SCRA 207 [1993]); and more recently in Del Castillo vs. Civil Service Commission (241 SCRA 317 [1995]); that, the Philippine Civil Service Law does not contemplate a review of decisions exonerating officers and employees from administrative charges.

The Court of Appeals exonerated respondent Dacoycoy of the charge of nepotism. From such adverse decision, the Civil Service Commission, through its Office for Legal Affairs, interposed the present appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court. Under existing laws and jurisprudence this is not allowed, so this Court ruled in the above-cited cases. If this point is not stressed by the Court, the present decision might be misconstrued as a watering down of the settled doctrine.

Although in Mendez, what was particularly assailed was the authority of the Civil Service Commission (CSC) to review decisions of the Merit System Promotion Board (MSPB), the Court nevertheless spelled out the rule regarding appeal from decisions where officers and employees are exonerated of the administrative charges leveled against them. Thus, we 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 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 that 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 (should be 807) 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 against him. But when the respondent is exonerated of said charges, as in the case, there is no occasion for appeal.

(pp. 967-968.)

The Mendez ruling was a reiteration of Paredes wherein we said:

Based on the above provision 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 or 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 the 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 as appeal to the Civil Service Commission. In an administrative case, the complainant is a mere witness (Gonzalo v. D. 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.

(pp. 98-99.)

It is true that as early as Paredes, this Court was already aware of the fact that in an administrative case, any offense, not only that involving nepotism as intimated in the majority opinion, is committed against the government. As rightly pointed out in Mr. Justice Punos Separate Opinion, the charges in Paredes and the other subsequent cases were as serious, if not more serious than the present charge of nepotism. In fact, there might even be instances when the unlawful and nepotic act may prove to be beneficial to the government, as in the case where the appointed employee is more than qualified for the position. Surely, charges of abuse of authority or of graft and corruption are more serious than an accusation of nepotism, for the acts therein involved cannot but cause injury to government. If the complainant is allowed to appeal in cases involving nepotism, then with more reason should appeals be allowed in the dismissal of, or in the imposition of lighter penalties in, the charges mentioned. How about sexual harassment? Malversation? Where will this end up in except allowing appeal in all cases. The Court shall then be legislating or, at least, abandoning settled doctrines for no compelling reasons. Taking the case of nepotism as the exception to the rule would not be justified considering that, despite the greater seriousness of the charges in the earlier cases, we still did not rule therein that the government may take the appeal as the party adversely affected.

There is more cogent reason, therefore, for the Court to adhere to the general rule in an administrative case involving nepotism. Besides, the law cannot be clearer on the matter. It made no distinction as regards the charge of nepotism. When the law does not distinguish, the Court should not distinguish.

It should also be noted that Presidential Decree No. 807 has not undergone any pertinent amendment since the Court applied the law in Paredes. From the time of its passage on October 6, 1975 until the present, appeals by the government in cases of exoneration in an administrative case had been disallowed. It was not only the result of this Courts interpretation of the law in Paredes that made it so. It was rather the real and definite intention of the Philippine Civil Service law. If it was the intention of Legislature to allow appeals as the majority holds or as Mr. Justice Puno suggests, then, an amendment to that effect could have been introduced and passed. Then President Marcos who had full legislative power could have easily amended the said law. The records show that he did not. The fact that no such amendment has been introduced even after the re-institution of a legislative body, the Batasang Pambansa, and later in 1987, the Congress of the Philippines, signifies that, at the very least our interpretation in Paredes and the other subsequent cases sits well with Congress. It is my submission that the prerogative to now determine whether this practice of disallowing appeals in cases of exoneration should still continue or not, exclusively belongs to Legislature. The Court cannot and should not arrogate this policy-making power of Congress unto itself, not even in the guise of the exercise of its expanded power of judicial review under the 1987 Constitution. Only Congress has authority to remedy inadequacies in the wisdom of a law, should it find any, especially when the definite intention of the existing law was to disallow the State to appeal from judgments of exoneration. Any attempt by the Court to transgress this most basic principle in the separation of powers between these two branches of government would to my mind, result in the abhorrent act of judicial legislation, if not outright disregard of Article 7 of the Civil Code which states that:

ART. 7. Laws are repealed only by subsequent ones, and their violations or non-observance shall not be excused by disuse, or custom or practice to the contrary.

Effective June 1, 1995, Revised Administrative Circular No. 1-95 ordained that, appeals from awards, judgments or final orders or resolutions of or authorized by any quasi-judicial agency (which includes the Civil Service Commission) in the exercise of its quasi-judicial functions shall be taken by filing a verified petition for review with the Court of Appeals. Although in general, appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may be filed via a verified petition for review on certiorari with this Court (where pure questions of law, distinctly set forth therein, may be duly raised), an appeal involving a judgment or final order of the Court of Appeals exonerating a government employee in an administrative case, in particular, falls within the ambit of the provisions of Section 39, paragraph (a) of Presidential Decree No. 807. It is elementary that a special law such as Presidential Decree No. 807 takes precedence over general rules of procedure such as Rule 45 of the Rules of Court. No appeal may, therefore, be taken under Rule 45.

Moreover, it is recognized in our jurisdiction that an administrative case which could result in the revocation of license, or similar sanctions like dismissal from office, constitutes a proceeding which partakes of a criminal nature (cf. Pascual vs. Board of Medical Examiners, 28 SCRA 345 [1969]). Being such, provisions of law pertaining thereto must perforce be construed strictly against the State, just as penal laws are strictly construed strictly against the State (People vs. Manantan, 5 SCRA 684 [1962]). Any ambiguity, should there be any, must be resolved in favor of the respondent in the administrative case. The term party adversely affected should not be construed as to include the State in administrative charges involving nepotism.

To allow appeals from decisions, be they exonerative or otherwise, against civil service employees would, to my mind, be stocking the stakes too much against our civil servants. It should be noted in this regard that the greater bulk of our government workers are ordinary people, working under supervision and, more often than not, exposed to political pressure and the influence of peddlers of power. Their simple status notwithstanding, they are not easily cowed and intimidated. Many, though, are threatened with complaints, transfer of station, or demotion, if they refuse to do the bidding of some unscrupulous superiors or politicians. I can, therefore, understand why the law and our jurisprudence disallow appeal by the complainant from decisions in administrative cases, be they exonerative or otherwise. Verily, an employee may be hounded into spending up to his last resources and losing his self-respect and honor by successive appeals.

What will happen, if for instance, the respondent government employee is initially exonerated or given a light penalty, and the complainant may appeal, insisting that the employee is guilty or that he deserves a heavier penalty? And, if the Civil Service Commission thereafter metes out a penalty not to the liking of the complainant, the matter may still be elevated to the Court of Appeals or even this Court? Where else will all this end, if not in the physical and financial exhaustion of the respondent civil servant? Again, I wish to stress that I speak here of the ordinary employees. The big shots in government who commit wrongs may somehow hereby benefit, but then we shall be content in concluding that we decided in favor of the many, that the good of the majority prevailed.

A judgment of exoneration by the Court of Appeals, as in the case of a judgment of exoneration by the Civil Service Commission or the now defunct Merit System Protection Board, may indeed prove to be truly adverse to the government agency concerned and eventually to the State as a whole. This is especially so when there had been lapses in the interpretation and/or application of the law as in the present case. This notwithstanding, the right to appeal, which is merely statutory may not be invoked, much less exercised, when the law does not provide any. Again, until and unless Congress exercises its prerogative to amend such law, this Court is bound by it and has no other recourse except to apply the same. Fortunately for petitioner but not so for respondent, the latter failed to invoke the foregoing general rule. In a similar case, we held that the party favored by such law who fails to interpose any objection to an appeal may be deemed to have waived this right. The Court En Banc, speaking through Mr. Justice Camilo D. Quiason in Mendoza vs. Civil Service Commission (233 SCRA 657 [1994]), held:

We decided this case with full awareness of the decisions in Paredes v. Civil Service Commission, 192 SCRA 84 (1990) and Mendez vs. 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 vs. 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 Service Law, which provide 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. 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 vs. Judge Villanueva, G.R. No. 83333, February 13, 1989, En Banc, Minute Resolution).

(pp. 663-664.)

As a final observation, it may well be noted that the result in the present case may already be achieved by the application of this Courts ruling in Mendoza. It might not be necessary to step over board by institutionalizing the case of nepotism as an exception to Paredes, or, as Mr. Justice Puno proposes, abandoning Paredes altogether. I believe that it will do our justice system more good than harm if we abide by the principle of stare decisis in the present case. This case, I humbly submit is not the proper vehicle to review and abandon doctrines of long standing, for nonetheless, the appeal by the complainant is allowed there being no objection thereto by respondent Dacoycoy. We need not disturb at this time our old rulings We need not enter uncertain and mined fields, for the result sought to be accomplished by the majority can well be achieved by simply following and applying our previous rulings on the matter.

Premises considered and with the above observations, I vote to grant the petition as stated in the dispositive thereof.