On behalf of the Russian Federation

DECISION OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of August 14, 2013 No. AKPI13-629

About refusal in allowance of the application about recognition invalid Item 3 and the paragraph 4 Items 9 of the Procedure for calculation and confirmation of years of service of the public civil service for award of pension for long service federal government civil servants, утв. the order of the Ministry of Health and Social Development of the Russian Federation of 26.12.2011 No. 1648n

The Supreme Court of the Russian Federation in structure:

judge of the Supreme Court of the Russian Federation Petrova T. A.,

in case of the secretary To.,

with participation of the prosecutor Stepanova L. E.,

having considered in proceeding in open court civil case according to B. A. statement for recognition invalid Items 3 and 9 (the paragraph the fourth) the Procedure for calculation and confirmation of years of service of the public civil service for the award of pension for long service federal government civil servants approved by the order of the Ministry of Health and Social Development of the Russian Federation of December 26, 2011 No. 1648n

established:

Item 3 of the Procedure for calculation and confirmation of years of service of the public civil service for the award of pension for long service federal government civil servants (further - the Procedure) approved by the order of the Ministry of Health and Social Development of the Russian Federation of December 26, 2011 No. 1648n (further - the Ministry of Health and Social Development of the Russian Federation), determines that inclusion in years of service of the public civil service for award of pension for long service of the periods of service (work) in the positions provided by the list of positions, the periods of service (work) in which join in years of service of the public civil service for award of pension for long service of federal government civil servants (further, - the List of positions), No. 1141, is performed by the approved Presidential decree of the Russian Federation of September 20, 2010 according to the statement of the federal government civil servant in case of its request for award of pension for long service.

 The paragraph the fourth Item 9 of the Procedure provides that the statement for inclusion of the periods of service (work) in separate positions of heads and specialists at the companies, in organizations and the organizations, experience and knowledge of work in which were necessary for federal government civil servants for fulfillment of duties on the replaced position of Federal public civil service (further - other periods) moves in case of the request for award of pension for long service.

 B. A., being the pensioner since December, 1999 and the receiver of long-service pension, appealed to the Supreme Court of the Russian Federation with the statement for recognition invalid the provided normative instructions in that measure in which they fix possibility of filing of application about inclusion of other periods of service (work) only in case of the request for award of pension for long service. In reasons for the requirements the applicant referred to the fact that the federal state body in which B. A. replaced the state position returned its application for inclusion in years of service of the public civil service of other periods of service (work) (1973 - 1977), having specified that it moves in case of the request of the government civil servant for award of pension for long service.

The applicant believes that the Ministry of Health and Social Development of the Russian Federation, performing normative legal regulation, had no right to enter the sales terms of pension entitlement which are not provided by articles 19 and 22 of the Federal Law of December 15, 2001 No. 166-FZ "About the state provision of pensions in the Russian Federation" for long service and by that to limit its right to long-service pension in full.

 The Ministry of Labour and Social Protection of the Russian Federation (further - Ministry of Labor of Russia), the Ministry of Finance of the Russian Federation (further - the Ministry of Finance of the Russian Federation), the Ministry of Justice of the Russian Federation (further - the Ministry of Justice of the Russian Federation) in written objections the statement was specified that the disputed normative instructions correspond to Item 1 of the order of the Government of the Russian Federation of September 15, 2003 No. 570 "About procedure for inclusion in years of service of the public civil service for award of pension for long service of federal government civil servants of the periods of service (work) in positions of Federal public civil service, the state positions of the Federal State Service, the state positions of the federal government employees and other positions determined by the President of the Russian Federation" (further - the Resolution No. 570), do not contradict the Federal Law "About the State Provision of Pensions in the Russian Federation" and do not violate the rights, freedoms and legitimate interests of the applicant.

B. A., representatives the Ministry of Finance of the Russian Federation and the Ministry of Justice of the Russian Federation informed properly on the place and time of legal proceedings in judicial session were not. The applicant and the representative of the Ministry of Finance of the Russian Federation directed to the Supreme Court of the Russian Federation applications for consideration of the case in their absence.

Having discussed statement arguments, having listened to objections of representatives of Ministry of Labor of Russia of B.R. and Page, having researched the produced evidence, having estimated regulatory legal act in the disputed part on its compliance to the Federal Law and other regulatory legal acts having big legal force, having heard the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Stepanova L. E., believing that the statement is not subject to satisfaction, the Supreme Court of the Russian Federation considers that B. A. requirements are not subject to satisfaction.

The Ministry of Health and Social Development of the Russian Federation in pursuance of Item 3 of the Resolution No. 570 (in edition of the order of the Government of the Russian Federation of October 12, 2010 No. 818), and also based on Items 5.2.58 and 5.2.59 of earlier operating Regulations on the Ministry of Health and Social Development of the Russian Federation approved by the order of the Government of the Russian Federation of June 30, 2004 No. 321, accepted the Procedure disputed in part. The regulatory legal act is registered in the Ministry of Justice of the Russian Federation on March 14, 2012, registration No. 23469, is published in "The Russian newspaper", 2012, on March 23.

 The Federal Law "About the State Provision of Pensions in the Russian Federation" determines years of service of the public civil service as the total duration of the periods of implementation of the public service and other activities considered in case of determination of pension entitlement of federal government civil servants and in case of calculation of the size of this pension (Article 2); fixes that for award of pension for long service of federal government civil servants join in years of service of the public civil service according to the procedure, established by the Government of the Russian Federation, the periods of service (work) in the positions of Federal public civil service and other positions determined by the President of the Russian Federation (Article 19); determines that award of pension, recalculation of its size and transfer from one type of pension into another are made according to the petition from the citizen submitted including in electronic form which procedure for registration is determined by the Government of the Russian Federation, except for separate types of social pensions. The request for award of pension, recalculation of its size and transfer from one type of pension into another can be performed including in electronic form which procedure for registration is determined by the Government of the Russian Federation, at any time after emergence of pension entitlement, recalculation of its size or transfer from one type of pension into another without restriction with any term. Recalculation of the size of pension can be made in connection with change of group of disability, the reason of disability, number of the disabled family members who are dependent on the pensioner, category of the disabled member of the family of the died supporter and also in connection with change of conditions of purpose of social pension. Recalculation of the size of long-service pensions of federal government civil servants can be made using provisions of articles 14 and 21 of this Federal Law in case of subsequent after award of pension for long service increases in duration of years of service of the public civil service taking into account which the size of long-service pension, and (or) substitutions of position of Federal public civil service with higher official pay rate (Article 22) is determined at least 12 complete months.

 Item 20 of the List of positions provides that the work periods on separate positions of heads and specialists at the companies, in organizations and the organizations, experience and knowledge of work in which were necessary for federal government civil servants for fulfillment of duties on the replaced position of Federal public civil service join in years of service of the public civil service according to the procedure, determined by the Government of the Russian Federation.

By Item 1 of the Resolution No. 570 it is determined that inclusion in years of service of the public civil service for award of pension for long service of federal government civil servants of the periods of service (work) in positions of Federal public civil service, the state positions of the Federal State Service, the state positions of the federal government employees and other positions determined by the President of the Russian Federation is performed according to the statement of the federal government civil servant in case of its request for award of pension for long service by federal state body in which this employee replaced position of Federal public civil service just before dismissal, and in case of abolition (reorganization) of the specified body - federal state body, to which functions of the abolished (reorganized) body are in accordance with the legislation of the Russian Federation transferred.

Follows from the given regulations that other periods of service (work) in separate positions along with the periods of implementation of public service join in years of service of the public civil service for award of pension for long service as provided by the List of positions. Inclusion of these periods in years of service of the public civil service is performed according to the procedure, No. established by the Resolution 570, - according to the statement of the federal government civil servant in case of its request for award of pension for long service.

Items 3 and 9 (the paragraph the fourth) About, providing that inclusion in years of service of the public civil service for long service of federal government civil servants of the periods of implementation of the public civil service and other periods of service (work) in separate positions is made for award of pension in case of their request for award of pension for long service, actually reproduce the given regulations of the existing federal legislation.

Challenging the normative provisions, the applicant believes that owing to article 22 of the Federal law "About the State Provision of Pensions in the Russian Federation" the statement for inclusion of other periods of service (work) can be submitted as in case of the request for award of pension on length of service, and later.

This argument is unreasonable on the following bases. Provisions of the given regulation of the Federal Law determine including types and forms of requests for pension and provide addresses with the statement for award of pension, recalculation of its size and transfer from one type of pension into another. The citizen has the right to file these petitions after emergence of pension entitlement, recalculation of its size or transfer at any time. At the same time the citizens receiving the long-service pension provided for federal civil servants have the right to recalculation of the specified pension using provisions of articles 14 and 21 of the Federal Law called above in case of subsequent after award of pension for long service of increase in duration of years of service of the public civil service or substitution of position of Federal public civil service at least 12 complete months with higher official pay rate.

The Procedure disputed in part, according to content of its Item 1, regulates the questions connected with calculation of years of service of the public civil service for award of pension for long service of federal government civil servants.

In view of that the years of service of the public civil service are determined as the total duration of the periods of implementation of public service and other activities which is considered in case of determination of pension entitlement of federal government civil servants and in case of calculation of the size of this pension, the question of inclusion of other periods of service (work) is subject to permission along with award of pension for long service.

Taking into account stated the applicant's arguments about what the Ministry of Health and Social Development of the Russian Federation, performing normative legal regulation, entered the sales terms which are not provided by the Federal Law federal government civil servants of pension entitlement for long service are unreasonable.

Besides, the Section X of appendix No. 1 existing at the time of dismissal with B. A. "The periods of public service (work) considered in case of calculation of the years of service of public service granting the right to monthly surcharge to national pension" to Regulations on establishment, payment and recalculation of the amount of monthly surcharge to national pension to persons replacing the state positions of the Russian Federation and the state positions of the Federal State Service (it is approved by the order of the Government of the Russian Federation of November 11, 1999 No. 1233), also provided inclusion in years of service of public service of other periods of work (service) irrespective of their duration on representation of the head of federal state body which was drawn up along with dismissal of the government employee on the bases specified in Item 5 of the called Provision.

As appears from determination of the Constitutional Court of the Russian Federation of June 23, 2009 No. 279-O, the right to inclusion of other periods of work in years of service of public service is not unconditional. These periods joined in these years of service only in that case when experience and knowledge acquired at former work was necessary for accomplishment of obligations on the replaced position of public service. The head of federal state body resolving issue of the direction of the corresponding submission to the Ministry of Health and Social Development of the Russian Federation that excluded possibility of any discretion of the official in case of the decision in each case of question of registration of idea of offsetting in years of service of public service of such periods shall give assessment of such circumstances.

 The applicant actually connects violation of the rights not with content of the challenged provisions in case of which observance other periods can be included in years of service of the public civil service in case of award of pension, and with cancelled registration of similar representation that is not the basis for recognition of these provisions invalid.

Items 3 and 9 (the paragraph the fourth) are About directed to realization of the right of citizens to provision of pensions on the conditions operating on the date of decision about establishment of pension including on calculation of the size of pension in full, and therefore in itself cannot be considered as the infringing applicant's rights, including in the aspect specified by it in the statement.

Thus, the Procedure disputed in part does not contradict the existing federal legislation and does not violate the rights, freedoms and legitimate interests of the applicant and other persons.

Being guided by Articles 194 - 199, 253 Civil Procedure Code of the Russian Federation, the Supreme Court of the Russian Federation

solved:

about recognition invalid Items 3 and 9 (the paragraph the fourth) the Procedure for calculation and confirmation of years of service of the public civil service for the award of pension for long service federal government civil servants approved by the order of the Ministry of Health and Social Development of the Russian Federation of December 26, 2011 No. 1648n to refuse allowance of the application of B. A.

The decision can be appealed in Appeal board of the Supreme Court of the Russian Federation within a month from the date of its acceptance in the final shape.

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