It is not mandatory but, discretion of the corporations and govt. companies to consult the PSC for making appointment of employees

High Court of Kerala: The Division Bench of this Court referred the question to the Full Bench of this Court as to whether the word ‘may’ used in Section 3 of the Kerala Public Service Commission Act, 1970 (Act 19 of 1970) should be treated as ‘shall’ making it mandatory for the Corporations and Government Companies to consult the Kerala Public Service Commission (PSC) for making appointment of employees, the Bench comprising of KT Sankaran, PD Rajan and P Ubaid, JJ., observed that wherever the Legislature thought it mandatory that consultation with the PSC is required; the provisions make it clear by using the expression ‘shall’ hence the word ‘may’ used in Act 19 of 1970 does not make it mandatory for the Corporation or the Government Company to consult the PSC.

The petitioners, Indian National Trade Union Congress, have filed public interest litigation contending that the appointment or recruitment process in the public sector undertakings of the respondent is void, illegal, and unsustainable since it not made before consulting the PSC. On the other hand, the learned counsel for the respondent contended that Section 3 would make it clear that the word ‘may’ occurring in Section 3 is not mandatory and it is only optional for the Corporations and the Government Companies to consult PSC in the matter of recruitment of employees.

The Full Bench  answering the contention of the petitioner in negative held that the word ‘may’ occurring in Section 3 of the Additional Functions Act cannot be read as ‘shall’ as the conscious deviation is clear on examining the various other statutes hence it is not mandatory but at the discretion of the Corporations and Companies whether to consult the PSC or not in all matters relating to recruitment. The Bench further observed that since the Rules to the Act 19 of 1970 provides that no appointment to the posts brought under the purview of the PSC shall be made except on the advice of the Commission thereby making it clear that apart from the mandatory appointments the Act does not contemplates appointments to the posts within the purview of the PSC. [The Indian National Trade Union Congress v. State of Kerala, 2016 SCC OnLine Ker 28062, decided on 19th December, 2016]

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