List of abbreviations
The Law of the Republic of Kazakhstan dated July 23, 1999 "On Public Service" - the Law on Public Service.
The Law of the Republic of Kazakhstan dated December 10, 1999 "On labor in the Republic of Kazakhstan" - the Law on Labor.
Regulation on the procedure for passing the civil service, approved by the Decree of the President of the Republic of Kazakhstan dated March 10, 2000 N 357 - Regulation.
Question 1. The Law on Civil Service provides for a new institute for the transfer of civil servants. What is the procedure for the occupation of an administrative public position by administrative civil servants without competitive selection in the order of transfer?
In accordance with the new version of paragraph 2 of Article 12 of the Law on Civil Service, the occupation of an administrative public position by administrative civil servants may be carried out without competitive selection in the order of transfer, if it meets the qualification requirements for the relevant vacant position with the consent of the administrative civil servant and the authorized body or its territorial subdivision.
At the same time, according to paragraph 18-1 of the Regulation, the head of a state body has the right to appoint an administrative civil servant of this state body or another state body to a vacant administrative state position with the consent of the authorized body for civil service affairs or its territorial subdivision. For this purpose, the state body employing a civil servant submits the following documents to the authorized body or its territorial subdivision:
1) the application of an administrative civil servant to occupy the relevant position in the order of transfer (the application is addressed to the head of the receiving state body);
2) a completed track record, certified by the personnel service of the state body.
The submitted documents are considered by the authorized body within five working days, and one of the following decisions is made, the authorized body:
1) agrees to the appointment;
2) refuses approval.
It should be noted that the grounds for refusal of approval can only be the non-compliance of a civil servant with the qualification requirements for the relevant position or the failure to submit the above documents.
The decision may be appealed to a higher authorized body (if the decision to refuse approval was made by a territorial subdivision of the authorized body) and (or) in court.
Question 2. Is it possible to transfer civil servants without competitive selection within different groups of job categories, for example from a group of categories C to a group of categories B, as well as transfer to a higher position both within one state body and from one state body to another?
The appointment of an administrative civil servant in the order of transfer can be carried out not only within one group of categories of administrative public positions, but also within different groups of categories, provided that he meets the qualification requirements for a vacant administrative position of a particular category. In addition, an employee may be appointed by way of transfer to a higher vacant administrative public position in the same state body or in another state body, in accordance with paragraph 2 of article 12 of the Law on Civil Service and paragraph 18-1 of the Regulations.
Question 3. Which rule of the Law should be invoked when dismissing an administrative civil servant in the order of transfer to another state body?
In accordance with paragraph 2 of Article 12 of the Law on Civil Service, the occupation of an administrative public position by administrative civil servants may be carried out without competitive selection by way of transfer if it meets the qualification requirements for the relevant vacant position with the consent of the administrative civil servant and the authorized body or its territorial subdivision.
The dismissal of a civil servant from his position in connection with the transfer to another administrative public position does not entail the termination of public service.
Thus, in the order on the dismissal of a civil servant from his post in the order of transfer to work in another state body, it is necessary to refer to paragraph 2 of article 12 of the Law on Civil Service.
Question 4. In case of transfer of an employee, he may be granted annual paid leave until the expiration of the period established by law. How, in this case, is the payment for the provided leave and benefits for recovery made?
Paragraph 5 of Article 22 of the Law on Civil Service provides that in the case of the transfer of an administrative civil servant or in connection with the appointment of a political civil servant to another public position, if the civil servant has not used leave at the previous place of work, paid annual leave may be granted at the new place of work before the expiration of the period established by the laws of the Republic of Kazakhstan.
In accordance with article 68 of the Law of the Republic of Kazakhstan "On Labor in the Republic of Kazakhstan", upon termination of an individual employment contract, regardless of its basis, compensation is paid to an employee who has not used or has not fully used his right to annual labor leave.
Based on the above and the specifics of the institution of the transfer and appointment of political civil servants in the field of public service, a civil servant, at his request, may be compensated for unused or not fully used annual leave at his former place of work, or granted leave at a new place of work. At the same time, a recovery allowance in the amount of two official salaries is paid only when an employee goes on work leave.
Question 5. Does it mean that persons who have reached the retirement age established by the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan" should be dismissed from public service or their stay in public service is extended for one year, and is it also possible to extend the term of stay in public service of these persons by concluding a fixed-term employment contract by mutual agreement of the parties each subsequent year?
Subparagraph 1-1) of paragraph 1 of Article 27 of the Law on Civil Service states that the basis for termination of public service by administrative civil servants is their reaching the retirement age established by the law of the Republic of Kazakhstan, with the right to extend their stay in public service for one year by concluding a fixed-term employment contract by mutual agreement of the parties.
This norm establishes the right to extend the period of stay of the specified category of persons in public service by mutual agreement of the parties. That is, if at least one of the parties, either the head of a state body or an administrative civil servant, does not agree with the extension of the term, then in this case the employee is subject to dismissal from public service.
Also, it follows from the content of the above-mentioned norm that a fixed-term employment contract for the continuation of work for one year can be concluded with a civil servant with the mutual consent of the parties. At the same time, such a right can be realized every subsequent year by concluding a new fixed-term employment contract.
At the same time, it should be borne in mind that the continuation of work (conclusion of a fixed-term employment contract) can be carried out within the limits of the position held by a civil servant. The transfer of these persons from one position to another, as well as the transfer to another state body, is not allowed.
Question 6. According to Article 9 of the Law of the Republic of Kazakhstan "On Pension Provision in the Republic of Kazakhstan", women who have given birth to 5 or more children and brought them up to the age of eight have the right to a full age pension upon reaching 50 years, followed by an increase in the specified retirement age by 6 months annually, starting from July 1, 1998, but not more than 3 years in general.
Military personnel, in accordance with the legislation regulating their legal status, have the right to retire at the age of 45.
Is the reason for the achievement of the specified categories of persons and other similar categories of citizens of retirement age of termination of public service or restriction in admission to public service?
Regarding the definition of the retirement age, upon reaching which an administrative civil servant can be dismissed from public service, it, in relation to public service, is 63 years for men, and 58 years for women. At the same time, the achievement of the preferential retirement age established for certain categories of citizens does not matter in this case and is not considered as a reason for termination of public service or restriction in the right to enter public service.
Question 7. Can a fixed-term employment contract be concluded for further public service with persons whose age at the time of adoption of the Law of the Republic of Kazakhstan dated March 11, 2003 "On Amendments and additions to the Law of the Republic of Kazakhstan "On Public Service" is higher: women - 58 years and men - 63 years