Grounds for termination of public service by administrative civil servants
Violation of the standards of ethics established by subparagraph 2) paragraph 5 of the Code of Ethics is not an independent basis for the dismissal of an administrative civil servant.The list of grounds for termination of public service by administrative civil servants is provided for in article 61 of the Law "On Civil Service". This list contains twenty-one grounds, but is not exhaustive.
According to subparagraph 22) of paragraph 1 of Article 61 of the Law, a civil servant may be dismissed on other grounds, other grounds provided for by the laws of the Republic of Kazakhstan and acts of the President of the Republic of Kazakhstan.
It follows from the content of this norm that it is a blank one, that is, it refers to other normative legal acts (without specifying a specific rule of law), therefore, it is impossible to dismiss a civil servant only with reference to subparagraph 22) of paragraph 1 of Article 61 of the Law "On Civil Service", it is necessary to make a reference to another law.By the decision of the Judicial Board for Civil Cases of the Supreme Court dated May 5, 2022 (3gp-135), the judicial acts of the Atyrau region in the case of the claim of M. to the Construction Department to declare illegal and cancel the dismissal and reinstatement order. A new decision has been made to satisfy the claim.
In the case, it was established that the decision of the Ethics Council indicated that there were grounds for bringing M. to disciplinary responsibility only for violating subparagraph 2) of paragraph 5 of the Code of Ethics and the possibility of imposing penalties on him in the form of dismissal from his position as an administrative civil servant.
Based on the decision of the Ethics Council, by order of the Construction Department dated December 4, 2020, M. was dismissed from his post with reference to subparagraph 22) of paragraph 1 of Article 61 of the Law "On Civil Service" and subparagraph 2) of paragraph 5 of the Code of Ethics in connection with non-compliance with moral and ethical standards of conduct of a civil servant.
The refusal to satisfy the claim was motivated by the courts of the first and appellate instances by the fact that the violation of M. The norms of the Code of Ethics are established and they are not denied.Canceling judicial acts and satisfying the claim, the cassation instance proceeded from the fact that the grounds for termination of public service by administrative civil servants are given in article 61 of the Law "On Civil Service", which, meanwhile, violates ethical standards, in particular those established by subparagraph 2) Paragraph 5 of the Code of Ethics is not provided as an independent basis for the dismissal of an administrative civil servant.
The reference to subparagraph 22) of paragraph 1 of Article 61 of the Law "On Civil Service" does not allow recognizing the order of the Construction Department as legitimate, since the said norm itself does not provide for specific grounds for termination of public service. The other provision of the Law "On Civil Service" or the Labor Code, which served as the basis for M.'s dismissal, is not given in the order.
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