On recognition as illegal and cancellation of the order
No.6001-23-00-6ap/1173 dated October 26, 2023
Plaintiff: B.A.
Defendants: State Institution "Ministry of Science and Higher Education of the Republic of Kazakhstan" (hereinafter - the Ministry), RSE "National Center
Ministry of Science and Higher Education of the Republic of Kazakhstan (hereinafter referred to as the Testing Center)
The subject of the dispute: on the recognition of illegal and cancellation of Order No. 107 of October 12, 2022 (Order) regarding the cancellation of the results of the unified national testing and the cancellation of the results of the competition for the award of the B.A. educational grant.
Review of the plaintiff's cassation appeal. PLOT:
On May 27, 2022, B.A. (hereinafter referred to as the plaintiff) passed the Unified National Examination (hereinafter referred to as the UNT) in electronic format at the US regional Testing center (scored 118 points).
On the basis of the Minister's order No. 20 dated August 10, 2022, he became the holder of an educational grant for a group of educational programs of higher education. B086 - general medicine.
It follows from the act of the Testing Center dated August 24, 2022, that according to the logs when B.A. passed the test, there was a parallel connection of 3 IP addresses.
The order annulled the results of the UNT and the competition for the award of educational grants to test takers who used prohibited items and (or) attempted interference in the testing program during the UNT, including the results of B.A.
On October 18, 2022, the Testing Center sent a notification to B.A. about the cancellation of the results of the UNT and the competition for the award of educational grants.
On November 1, 2022, the plaintiff filed a lawsuit against the Testing Center to declare illegal actions to cancel the results of the UNT and the competition for the award of educational grants.
On December 7, 2022, the plaintiff clarified the claims, including the Ministry among the defendants, and asked to cancel the Order, arguing that the defendants had not proven the fact of interference in the testing program during the UNT.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: When resolving the dispute and rejecting the claim, local courts, guided by paragraphs 80 and 89 of the Rules for Conducting Unified National Testing and providing Public Services "Issuance of a certificate of passing the Unified National Testing", approved by Order of the Minister of Education and Science of the Republic of Kazakhstan dated May 2, 2017 No. 204 (hereinafter referred to as Rules No. 204), We have come to the correct conclusion about the legality of the disputed order.
Based on the results of viewing video surveillance recordings of testing in the period from May 16 to July 5, 2022, an Act was drawn up on August 24, 2022, signed by twelve members of the commission, according to which the fact of interference by third parties in the testing program was discovered when the plaintiff passed the UNT.
So, according to the logs, B.A. testing started at 14:01 hours, in the period from 14:30 to 17:25 there was a parallel connection of 3 (three) IP addresses (172.20.202.172, 172.20.202.146, 172.20.202.126).
Moreover, testing actions were performed from each IP address.
"getting the test parameters", "getting the remaining time"
"assigning an option", "getting a test assignment during testing" and others.
In this regard, the plaintiff's arguments about the failure to prove the fact of interference in the testing program during the UNT were legitimately rejected by the courts.
The basis for issuing the contested order was the above-mentioned act and the decision of the Commission No. 10 dated October 3, 2022 on the cancellation of the test results (UNT scores) and the results of the competition for awarding an educational grant to the plaintiff at the expense of the republican budget for the 2022-2023 academic year.
The plaintiff's arguments about his non-involvement in the fact of interference in the testing process during the UNT and the absence of a court verdict that has entered into force do not entail the cancellation of judicial acts, since according to Rules No. 204, to annul the results of the UNT and the results of the competition, it is not necessary to establish the guilt of the test taker by a court verdict that has entered into force.
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