A serviceman dismissed from his post by order of the Minister of Defense retains all the rights established for military personnel of the Armed Forces of the Republic of Kazakhstan at the expense of estimates and funds of the Ministry of Defense of the Republic of Kazakhstan. Failure to comply with this requirement entails a violation of uniformity in the interpretation and application of legal norms by courts.
Sh. He filed a lawsuit against the Ministry of Defense of the Republic of Kazakhstan to recover severance pay. The case was submitted on the proposal of the Chairman of the Supreme Court of the Republic of Kazakhstan, submitted on his initiative, on the cassation review of the decision of the Yessilsky District Court of Astana dated April 20, 2015, the decision of the Appellate Judicial Board for Civil and Administrative cases of the Astana City Court dated June 26, 2015, the decision of the cassation Judicial Board of the Astana city Court dated September 25. 2015, resolutions of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated January 27, 2016. By Order of the Chairman of the Committee of the Chief of Staff – First Deputy Minister of Defense of the Republic of Kazakhstan dated April 30, 2004, Sh. He was appointed Head of the Military Department of the Russian State Pedagogical University at the North Kazakhstan State University named after M. Kozybayev (hereinafter – the University).
By Order of the Minister of Defense of the Republic of Kazakhstan dated December 27, 2013 No. 0363, Sh. was discharged from military service in the reserve due to reaching the age limit for military service. The length of service is 36 years and 7 months. Based on paragraph 8 of Article 55 of the Law of the Republic of Kazakhstan "On Military service and the status of military personnel" dated February 16, 2012, Sh. is entitled to severance pay in the amount of eight months of salary, which in January 2014 amounts to 1,684,432 tenge. Sh. filed a lawsuit to recover severance pay from the Ministry of Defense of the Republic of Kazakhstan. By the decision of the Yessil District Court of Astana dated April 20, 2015, left unchanged by the decisions of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated June 26, 2015, the Cassation Judicial Board of Astana dated September 25, 2015, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated January 27, 2016, in satisfaction of the claim of S. refused. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts and issued a new decision on the satisfaction of the claim. Recovered from the State Institution "Ministry of Defense of the Republic of Kazakhstan" in favor of Sh. 1,684,432 tenge, a penalty in the amount of 104,065 tenge, a total of 1,788,497 tenge. The submission of the Chairman of the Supreme Court was satisfied on the following grounds. Rejecting the claim, the courts pointed out that Sh. at the time of his dismissal, he was not on the salary of the Ministry of Defense, was a full-time employee of the military department, and the salary was paid by the educational institution, therefore, the severance pay should be provided by the educational institution. However, these conclusions of the courts contradict the norms of substantive law and violate the uniformity of judicial practice.
According to the Decree of the President of the Republic of Kazakhstan dated December 25, 2012 No. 453 "On approval of the list of military positions and their corresponding military ranks in the Armed Forces, Other troops and military formations of the Republic of Kazakhstan and Amendments to the Decree of the President of the Republic of Kazakhstan dated May 12, 2000 No. 392 "On the list of positions filled by senior officers and commanding officers The positions of the heads of military departments are military, respectively, military personnel in these positions undergo military service. Military departments are established at universities on the basis of paragraph 77 of the Rules for Preparing Citizens for Military Service, organizing and Conducting, as well as forming the educational and material base for initial military training, approved by Resolution No. 118 of the Government of the Republic of Kazakhstan dated February 11, 2013. Military personnel who are in military service, as well as those who are in reserve (retired) and dismissed from military service with the right to wear military attire, are appointed to full-time positions of military departments. The head of the military department and deputies are appointed by the Ministry of Defense of the Republic of Kazakhstan with subsequent notification to the head of the University. Military personnel appointed to full-time positions of military departments are in military service and they retain all the rights established for military personnel of the Armed Forces of the Republic of Kazakhstan. Military personnel are provided with personal belongings, uniforms, medical care and treatment in a sanatorium, as well as other types of subsistence allowances on a common basis with officers at the expense of estimates and funds of the Ministry of Defense of the Republic of Kazakhstan. It follows from the meaning and norms of the Law of the Republic of Kazakhstan "On Military Service and the status of military personnel" (hereinafter referred to as the Law) and the above–mentioned Rules that severance pay is paid if there is a corresponding length of service in military service. Sh., having a military rank and holding the position of head of the military department, was in military service. The length of service includes the military service of Sh. and before serving as the head of the military department. According to subparagraph 15) of article 1 of the Law, a military position is a staff unit of a state institution of the Armed Forces, which is entrusted with official powers and official duties to perform the functions of military service. Meanwhile, North Kazakhstan State University is a republican state-owned enterprise with the right of economic management, i.e. it is not an institution. As follows from the explanations of the defendant's representative, universities in other regions of Kazakhstan, where there are military departments, pay severance payments to retired military personnel from their own funds received by paying students for tuition on a fee basis. According to subparagraph 6) of paragraph 83 of the Rules, the head of the University ensures the allocation of funds for the provision of personnel and all types of activities of the military department provided for in the curricula and supply schedules.
According to the board, the payment of seniority benefits for military personnel, provided for by Law, does not relate to the curriculum and cannot be paid by an educational institution, since it is not provided for by these Rules, moreover, it should not be related to the financial condition of the educational institution. In addition, the case file contains a response from the Ministry of Education and Science of the Republic of Kazakhstan to a letter from the Rector of North Kazakhstan State University, which states that when forming the draft republican budget for 2014-2016, as part of the budget request of the Ministry of Education and Science, the cost of severance pay was included in the cost structure for the training of reserve officers by state order. dismissal from military service of military personnel of the military department of higher educational institutions, which were not supported by the working body of the Republican Budget Commission. As follows from the materials of similar cases on the claims of K., L., Sh. to the North Kazakhstan State University for the recovery of severance pay for years of service, the courts refused to satisfy the claims, the Supreme Court reasonably refused to review the contested judicial acts in these cases. Based on the above, the board considers that the judicial acts that took place in the case in question violate the uniformity in the interpretation and application of the norms of law by the courts. dismissed from his post by order of the Minister of Defense, therefore, for S. all rights established for the military personnel of the Armed Forces of the Republic of Kazakhstan are retained at the expense of the estimates and funds of the Ministry of Defense of the Republic of Kazakhstan.
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