(1.) THE above writ petition and the appeal being MAT 52/04 with FMA 1713/03 are heard together as the principal point of controversy involved in those matters are interlinked with each other.

(2.) THE Writ Petition being WP No. 2153 (W) of 2003 has been filed by one Kiran Subba and three others claiming for the following reliefs : (a) Writ/writ in the nature of Mandamus be issued thereby declaring that the Nepali/gorkha speaking people of hill areas of Darjeeling are linguistic minorities ; (b) Writ/ Writ in the nature of mandamus be issued thereby declaring that the Schools/institution in the hill areas of Darjeeling are established and administered by the linguistic minorities and as such the provisions of West Bengal School Service Commission act, 1997 ; and the amendments there under are not applicable in the hill areas of Darjeeling ; (c) Writ/writ in the nature of mandamus be issued thereby restraining the concerned respondent authorities from imposing the provisions of West Bengal School Service Commission Act, 1997 and the amendments made there under to School/institutions in the hill areas of Darjeeling ;

(3.) THE appeal mentioned above was also preferred by Education secretary, Hill Council and another, against judgment and order dated 27th august, 2003 passed by a learned Single Judge of this Court in WPCR No. 16814 (W) of 2002. By that judgment and order appealed against the learned single Judge in substance directed the School Service Commission to make recommendations forthwith for filling up of the Vacancies on the basis of the requisitions sent by the schools or on the basis of the reports of the concerned district Inspector of Schools (S. E.) in terms of Sub-Rule (2) of Rule 7 of the school Service Commission Rules.

(4.) IT appears that the petitioners in the said writ petition being 16814 (W) of 2002 were successful in the selection test conducted by the concerned regional School Service Commission and they were empanelled for being eligible to be recommended for appointment in the respective posts of Assistant teachers in the respective schools situate within Darjeeling District, which falls within the territory of Gorkha Hill Council. In both the matters core issue is whether the provisions of the West Bengal School Service Commission Act are applicable by virtue of Section 15 of the School Service Commission Act to the schools established and run by the Nepali speaking people or not. Larger and public interest are raised in the public interest litigation (hereinafter referred to as "pil") therefore, the decision of the appeal preferred by the Gorkha Hill council finally depends upon the decision in "pil". In the PIL some of the interested persons were added as party respondents to support instant application. Therefore the learned Counsel appearing for the writ petitioners in the PIL, Gokkha Hill Council, respondent in the earlier writ petition, added respondents and the State of West Bengal were heard altogether, and they have advanced their respective submission which are summarized hereunder : mr. Bimal Kumar Chatterjee, learned Senior Counsel appearing for the writ petitioners in W. P. No. 2153 (W) of 2003 (PIL) contends that Nepali or gorkha speaking people of hill areas of Darjeeling constitute linguistic minority and this fact will appear from the statements and averment made in the PIL supported by the public document namely the Population Census issued by the Government of India. Having regard to the ratio of the population of Nepali speaking people in West Bengal with total number of population, it will appear that the percentage is less than 2 per cent of the total population. These statements and averment remain uncontroverted, as such there is no difficulty for the Court to come to conclusion and to recognize that these Nepali /gorkha speaking people are linguistic minority. Actually he urges, they were and still are linguistic minority in the State of West Bengal and it need not