On the recognition of court decisions on reasoned refusal as illegal

Dated June 20, 2025 No. 6001-25-00-6ap / 3657

Plaintiff: Limited Liability Company" n" nursery-garden " (hereinafter referred to as the partnership)

Defendant: Republican state institution" City Department of sanitary and epidemiological control "(hereinafter referred to as the Control Department), state institution" Regional Department of Education " (hereinafter referred to as the Department of Education).

The subject of the dispute: recognition of decisions on reasoned refusal of April 11, 2024, April 26, 2024 and May 10, 2024 as illegal.

Revision of the administrative case received by the Cassation petition of the prosecutor of the region

SUBJECT OF THE CASE:

According to the circumstances established in court, the company has commissioned a two-story building (hereinafter referred to as the building) at The Address: City of T., District of U., No. 55 for the placement of kindergartens.  

On April 2, 2024, the company applied with an application to the Control Department for an opinion on the building.

An inspection of the building for compliance with the requirements of the documents of the state sanitary and epidemiological rationing system was carried out, and a reasoned refusal to give a positive opinion to the company on April 11, 2024.

The reason for this refusal was the fact that the area of toilets and food distribution areas of two Group premises on the first and second floors of the building does not correspond to the norm, the entrances and exits to the building are not covered with a solid coating, and the work on the exterior of the building is not fully completed.

On the same grounds, repeated applications of the partnership for the placement of 175 children (Group 7) dated April 16 and 29, 2024 were refused to give a positive opinion on April 26, 2024 and May 10, 2024, respectively.

The partnership requested on May 13, 2024 to give the defendant an opinion on the placement of 125 children (Group 5).

On this application, the Department issued a positive opinion on May 20, 2024.

In addition, the application of the partnership on June 20, 2024 on the issuance of an additional opinion for 50 children (Group 2) was given a positive opinion on July 1, 2024.

Judicial acts:

1st instance: by the decision of the Specialized Interdistrict Administrative Court of July 16, 2024, the claim was dismissed.

Appeal: the decision of the court of first instance is annulled by the decision, and a new decision is made to satisfy the claim in the case.

Cassation:

The decision of the judicial board in administrative cases has been changed.

The plaintiff of the resolution of the partnership defendant of the state institution "Regional Department of education" from April 11, 2024

The part on satisfaction of the claim on the obligation of financing for 175 children has been canceled.

In this part of the claim, the decision of the Specialized Interdistrict Administrative Court is left in force.

Conclusions:

A cassation appeal has not been filed for the part of the court of Appeal Act in which the defendant's refusal to issue a positive opinion dated April 11, 26, 2024 and May 10, 2024 was declared illegal.

Therefore, the case was considered in accordance with article 449 of the Civil Procedure Code within the framework of a cassation application from the prosecutor, that is, a claim to the Department of Education to oblige the company to provide funding to 175 children from April 11, 2024.

When the court of first instance dismissed this part of the claim, it concluded that it was unreasonable.

The court of appeal, without providing independent grounds for satisfying this part of the claim, referred only to the third part of Article 84 of the letter, which provides that when canceling an illegal administrative act, a decision is made on the legal consequences of recognizing an administrative act as illegal. At the same time, it is taken into account that the refusal of the Control Department to issue a positive opinion has been canceled.

The obligation of the said court to the Department of Education to finance the partnership from April 11, 2024 does not correspond to the circumstances of the case and the norms of material law were incorrectly applied.

As indicated above, the company did not dispute the refusal to issue a positive opinion on April 11, 26, 2024 and May 10, 2024, and received the first positive opinion on the placement of 125 children (Group 5) on May 20, 2024 when applying to the Control Department for the first time.

Based on the results of monitoring of pre-school educational organizations that have placed a state order in the region, in accordance with the protocol of the commission of May 21, 2024 No. 18  

The partnership has 120 seats.

In addition to the partnership with the control department, 50 children (Group 2) received a positive opinion only on July 1, 2024.

"The rules of normative per capita financing of pre-school education and training, secondary education, as well as technical and vocational, post-secondary education, taking into account credit technology of Education" (hereinafter referred to as the rules), approved by the order of the Minister of Education and science of the Republic of Kazakhstan dated November 27, 2017 No. 596 – In accordance with subparagraph 4 of Chapter 2), normative per capita financing of preschool education and training is carried out by the local executive body within the limits of the concluded contracts for placing a state educational order for preschool education and training activities, on a monthly basis, in the amount calculated for a specific contingent of pupils who received the same services in the current month.

That is, financing is carried out depending on the actual number of pupils.

Therefore, the partnership's request to oblige the Department of Education to provide funding for 175 children who have not received real services from April 11, 2024 is contrary to the requirements of the rules.

In addition, the court of first instance established that during the inspection of the object by the Control Department, the current inspection work was carried out, and the inspection work was not completed by photographs provided by the defendant.

Therefore, the decision of the court of First Instance to dismiss this part of the claim is legal and corresponds to the circumstances of the case.

In this context of the case, it is concluded that the decision of the court in question in this part is canceled, and the decision of the court of first instance is subject to cancellation.  

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