On declaring illegal the decision of the Commission for personnel training abroad to revoke the Bolashak international scholarship with reimbursement of all expenses due to non-fulfillment of contractual obligations regarding the completion of studies.

No.6001-23-00-6ap/379, (2), (3) dated 08/9/2023

Plaintiff: I.E.

Respondent: State Institution "Ministry of Education and Science of the Republic of Kazakhstan" Interested party: JSC "Center for International Programs"

The subject of the dispute is the recognition of the illegal decision of the Republican Commission for Personnel Training Abroad dated July 8, 2021 on the withdrawal of the Bolashak international scholarship with reimbursement of all expenses due to non-fulfillment of contractual obligations regarding the completion of studies.

Review of the cassation complaints of the defendant, the person concerned, the cassation petition of the city prosecutor.

PLOT: On September 23, 2015, I.E. was enrolled in the doctoral program of the Russian 136th Academy of National Economy and Public Administration under the President of the Russian Federation.

By the minutes of the meeting of the Republican Commission dated December 14, 2015, I.E. was awarded the Bolashak International Scholarship. On February 16, 2016, I.E. and the Center signed an agreement for the organization of studies at the Russian Academy of Law under the Doctoral program with a three–year study period (hereinafter referred to as the Agreement).

Based on I.E.'s application for an extension of studies, due to changes in the legislation of the Russian Federation, the period of study has been extended from February 1, 2019 to December 31, 2020. On May 4, 2020, I.E. had a premature complicated birth, as a result of which she was unable to prepare and defend her doctoral thesis in a timely manner.

From June 2020 to May 2021, I.E. underwent psychotherapy sessions in relevant organizations.

On March 5, 2021, the Center sent a notification to the plaintiff about the non-fulfillment of obligations to defend the dissertation and the need to provide a statement indicating the reasons for the late submission of the dissertation defense document and the period during which this document will be provided.

In June 2021, the Center sent documents to the Republican Commission for the withdrawal of the I.E.Bolashak international scholarship due to non-fulfillment of contractual obligations regarding the completion of studies on time.

By the minutes of the meeting of the Republican Commission dated July 8, 2021, I.E. was deprived of the Bolashak international scholarship due to non-fulfillment of contractual obligations regarding completion of studies with reimbursement of all expenses.

On July 14, 2021, the Center sent a notification to the plaintiff about the withdrawal of her international scholarship. On July 15, 2021, the Center sent the plaintiff a notification of reimbursement of expenses for the organization of training in the amount of 22,608,282.99 tenge, of which the actual expenses incurred were 20,552,984.54 tenge, the amount of the fine under the contract was 2,055,298.45 tenge.

On August 31, 2021, I.E. applied to the Republican Commission through the Center with a request to reverse the commission's decision to revoke her scholarship and submit to the next meeting of the Republican Commission the issue of extending the terms of preparation and defense of her doctoral thesis.

On April 11, 2022, the Center sent a notification to the plaintiff about reimbursement of expenses for the organization of training. On May 2, 2022, I.E. appealed to the Ministry and the Republican Commission to cancel the decision to deprive her of an international scholarship and consider extending the terms of preparation and defense of her dissertation. On May 26, 2022, the Ministry replied that there were no grounds for reviewing the decision of the Republican Commission.

Judicial acts:

1st instance: the claim is satisfied. Appeal: the court's decision is upheld.

Cassation: judicial acts are cancelled, the claim is denied.

Conclusions: The courts of previous instances, satisfying the claim, came to the conclusion that the issue of depriving I.E. of the Bolashak international scholarship was considered without proper investigation of all the circumstances and reasons for the scholarship holder's failure to complete his studies on time, and the contested administrative act does not comply with the principles of administrative procedures and administrative proceedings.

According to paragraph 4 of the Presidential Decree dated October 12, 2000 "On the Republican Commission for Personnel Training Abroad", one of the tasks of the Republican Commission is to make a decision on awarding or withdrawing the Bolashak International Scholarship in accordance with the Rules for Selecting Applicants for the Bolashak International Scholarship (hereinafter referred to as the Rules).

Paragraphs 28, 31 of the Rules provide that in the following cases::

1) if the winner of the competition fails to fulfill or improperly fulfills his obligations under the contract, the Republican Commission initiates consideration of the issue of depriving the winner of the Bolashak scholarship.;

2) the refusal or deprivation of the Bolashak scholarship by the decision of the Republican Commission, the expenses spent on him from the date of the decision of the Republican Commission to award the Bolashak scholarship, including the payment of a penalty (fine), are subject to reimbursement.

Clause 2.3.9. of the Agreement stipulates that the scholarship holder must complete and complete a full course of study in accordance with the approved curriculum at the full-time department of the educational institution and defend his dissertation within the time period established by the curriculum. It follows from these norms that the Rules and the Contract stipulate the conditions for fulfilling obligations, and in case of non-fulfillment, consideration of the issue of withdrawal of the Bolashak scholarship and reimbursement of all expenses spent on education. It was reliably established by the courts and was not disputed by the plaintiff I.E. that she had not passed the stage of defending her dissertation, established by the terms of the contract.

That is, the plaintiff did not submit a dissertation for the degree of Doctor of Sciences at the end of the prescribed period of doctoral studies. This means that the contested decision was taken lawfully by the Republican Commission in accordance with the legislation of the Republic of Kazakhstan, since it had a basis for making such a decision.

Consequently, the conclusions of the local courts do not correspond to the factual circumstances. By virtue of the first part of Article 11 of the CPC, an administrative body or official is obliged to exercise administrative discretion within the limits established by the legislation of the Republic of Kazakhstan.

According to subparagraph 6) of the first part of Article 4 of the CPC, administrative discretion is the authority of an administrative body or official to make one of the possible decisions based on an assessment of their legality in accordance with the purposes and limits established by the legislation of the Republic of Kazakhstan.

Based on the established competence, the Republican Commission has the right to make two types of decisions – on the award and withdrawal of scholarships.

In this regard, the judicial board considers that the decision of the Republican Commission was adopted by the legislation. Within the limits of its competence, established at the same time, the judicial board notes that the Republican Commission did not violate the requirements of the Regulations on the Republican Commission for Training Personnel Abroad (hereinafter referred to as the Regulations), approved by the Decree of the President of the Republic of Kazakhstan dated October 12, 2000, that is, of a procedural nature, when making a decision.

Thus, paragraph 9 of the Regulation stipulates that the decision of the Republican Commission is adopted by open voting by at least three-quarters of the votes of the commission members present at the meeting. Due to the fact that the appealed decision was adopted by the unanimous opinion of the members of the commission present at the meeting, the conclusions of the courts regarding the lack of information about the presence of votes "for" and "against" are erroneous, since a unanimous decision does not require the indication of votes.

 

 

 

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