On behalf of the Russian Federation
of November 14, 2018 No. 41-P
On the case of check of constitutionality of article 46 of the Federal law "About Education in the Russian Federation" in connection with the claim of the citizen I. V. Seryogina
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, S. P. Mavrin, N. V. Melnikov, V. G. Yaroslavtsev,
with participation of the plenipotentiary of the State Duma in the Constitutional Court of the Russian Federation M. P. Bespalova, the representative of the Federation Council - the chairman of committee of the Federation Council on the constitutional legislation and the state construction A. A. Klishas, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered case on check of constitutionality of article 46 of the Federal law "About Education in the Russian Federation" in open session.
Reason for consideration of the case was the claim of the citizen I. V. Seryogina. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision disputed by the declarant.
Having heard the message of the judge-speaker A. N. Kokotov, explanation of the agent of the party, published and signed the disputed act, performances invited in meeting of the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation M. Yu. Barshchevsky and also representatives: from the Ministry of Justice of the Russian Federation - M. A. Melnikova, from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. The declarant on this case citizen I. V. Seryogina disputes constitutionality of article 46 of the Federal Law of December 29, 2012 No. 273-FZ "About education in the Russian Federation" according to which pedagogical activities the persons having secondary professional or higher education and meeting the qualification requirements specified in job evaluation catalogs and (or) professional standards (part 1) have the right to occupation; the nomenclature of positions of pedagogical employees of the organizations performing educational activities of positions of heads of the educational organizations affirms the Government of the Russian Federation (part 2).
1.1. As appears from the materials provided to the Constitutional Court of the Russian Federation, I. V. Seryogina since 1990 worked as the kindergarten teacher, including since February 1, 2006 - the tutor in municipal budget preschool educational institution "Kindergarten No. 22 of the City District — the City of Kamyshin". According to the reference issued by the rector of federal state-funded educational institution of the higher education "The Volgograd state social and pedagogical university" in 1992 it completed training as "mathematician" in absentia of training, did not pass State Final Examination.
Following the results of certification on December 24, 2007 the second qualification category was appropriated to I. V. Seryogina, and the order of the Ministry of Education and Science of the Volgograd region of December 26, 2012 establishes the first qualification category for a period of five years.
In August, 2017 the declarant was notified that the employment contract with her will be terminated because it does not conform to requirements imposed to education of pedagogical workers by part 1 of article 46 of the Federal law "About Education in the Russian Federation"; other position - the cleaner of service premises whose substitution I. V. Seryogina refused was offered it. She was dismissed by the order of August 31, 2017 on the basis, stipulated in Item 13 parts one of article 83 of the Labor Code of the Russian Federation, - emergence of the obligations established by this Code, other Federal Law and excluding possibility of execution by the worker according to the employment contract of restrictions for occupation with certain types of labor activity.
Including the dismissal illegal, I. V. Seryogina appealed to the Kamyshin city court of the Volgograd region which the decision of December 4, 2017 left without change of higher instances by courts refused satisfaction of its claims to municipal budget preschool educational institution "Kindergarten No. 22 of the City District — the City of Kamyshin" about recognition illegal and cancellation of the order on termination with it the employment contract, its recovery at work as the tutor, collection in its advantage of average earnings during induced truancy, compensation of moral harm and compensation of court costs.
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