JUDGMENT : PRAMATH PATNAIK, J. 1. In the accompanied writ application, the petitioners have inter alia prayed for the following relief: (a). For direction upon the respondents to grant promotion to the petitioners to the post of Grade -IV upon completion of 8 years of services in the year 2002 and subsequently to the post of Grade-VII upon completion of further 5 years by treating it as notional service in Grade-IV OR alternatively with effect from the dates the juniors have been granted such promotion; (b). To pay all consequential monetary and other benefits with interest and saddle the respondents with exemplary cost; (c). For quashing the decision of District Establishment Committee dated 27.09.2010 to the extent of not granting promotion to the petitioners and instead thereof keeping decision reserved awaiting outcome of C.M.P No. 325 of 2010; (d). For quashing the decision as contained in memo dated 10.04.2013 issued by District Superintendent of Education to the extent it omits to grant promotion to the petitioners to Grade-4 scale and instead thereof confines itself to grant of Grade-2 only. 2. The facts, as delineated in the writ application as well as in various affidavits filed by the petitioners, in brief is that pursuant to the advertisement published in daily local newspaper “Prabhat Khabar” dated 06.10.1991, the petitioners applied and appeared in the examination conducted by 'Bihar Public Service Commission' (in short 'BPSC) for appointment on the post of Assistant Teachers (Matric Level), in which, they were declared successful. It has been averred that the BPSC prepared a common and joint list of trained and untrained teachers. Being aggrieved, some persons assailed the selection process before Hon'ble Patna High Court, where the Hon'ble Court did not interfere with the selection process and consequent appointments. However, the matter went up-to the Hon'ble Apex Court, wherein in Special Leave Petition (Civil) No. 23187 of 1996, the Hon'ble Court though did not interfere with the judgment passed by Hon'ble Patna High Court but directed the State of Bihar to impart training to the appointed untrained teachers within two years. However, the matter went up-to the Hon'ble Apex Court, wherein in Special Leave Petition (Civil) No. 23187 of 1996, the Hon'ble Court though did not interfere with the judgment passed by Hon'ble Patna High Court but directed the State of Bihar to impart training to the appointed untrained teachers within two years. In view of the specific direction of Hon'ble Apex Court, the present petitioners, who were so appointed yet not trained, were sent for stipulated period of one year training in the month of February, 1998 but the examination of the same could be held and only after passing of order dated 04.09.2001 in W.P. (S) No. 2625 of 2001 result was published on 03.05.2002. 3. It has further been averred that the State Government revised and implemented new scale of Rs. 4500-7000/-in place of old scale of Rs.1200-2040/-(Grade-1 Scale) but when the benefits of the same was not extended to the petitioners, they moved the Hon'ble Patna High Court by filing C.W.J.C No. 495 of 2000 (R), which was disposed of vide order dated 29.05.2001 directing the State Government to consider and give prescribed revised scale to the petitioners within a period of six months; albeit only after order dated 05.07.2002 in Cont. Case (C) No. 164 of 2002, they got the relief. 4. It has further been averred that by passage of time, on 23.01.2006 a seniority list for promotion to Grade – IV (Science Graduate) was prepared and published, wherein petitioners' name did not find place, aggrieved thereof, the petitioners along with others, again knocked the doors of this Court by filing W.P. (S) No. 638 of 2006, which was disposed of vide order dated 04.04.2008 with an observation that petitioners' case should be considered fixing the seniority from the date of their appointment and they should also be considered for giving benefit of Grade-IV Scales after completion of 8/12 years of their service and liberty was reserved with the petitioners to submit representation before Director, H.R.D., for consideration. But, the respondents-State challenged the order dated 04.04.2008 by preferring L.P.A. No. 214 of 2008, which stood dismissed for default vide order dated 09.08.2010 and for restoration of appeal, the State filed C.M.P. No. 325 of 2010. But, the respondents-State challenged the order dated 04.04.2008 by preferring L.P.A. No. 214 of 2008, which stood dismissed for default vide order dated 09.08.2010 and for restoration of appeal, the State filed C.M.P. No. 325 of 2010. But, during pendency of the restoration application, the District Education Establishment Committee in its meeting dated 27.09.2010 decided to grant promotion to the teachers, who are juniors and/or equivalent to the petitioners to Grade-4 ignoring the order passed in W.P. (S) No. 638 of 2006, in view of pendency of C.M.P no. 325 of 2010, however, posts were reserved for the petitioners for consideration for promotion to Grade-4. Thereafter, restoration application was allowed vide order dated 04.10.2010 and L.P.A. No. 214 of 2008 was restored and in L.P.A, the order passed by the writ Court dated 04.04.2008 was upheld, which got approval up-to Hon'ble Apex Court vide order dated 08.03.2013 in S.L.P. No. 5520-5522 of 2013. Thereafter, much belatedly vide memo dated 10.04.2013, both the petitioners and others were granted Grade-2 scale w.e.f 14.09.2006 and 09.09.2006 respectively upon completion of 12 years of continuous service in Grade-1 Scale. 5. Learned counsel appearing for the petitioners submitted that grant of Grade-2 Scale is an erroneous action as petitioners, being trained graduates and have completed 8 years of service in Grade-1 in the year 2002 itself, ought to have been given Grade-4 Scale for the reason there are no teachers available in Grade-2 and Grade-3 for consideration for promotion and in such circumstances, as per Sub-Rule (2) of Rule 5 of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993, (in short “Rules”) there was no impediment in petitioners' promotion to Grade-4. Even otherwise also, the District Education Establishment Committee in its meeting dated 27.09.2010 decided to reserve 8 posts in Grade-4 for the writ petitioners in W.P. (S) No. 638 of 2008, but, the District Superintendent of Education, Ranchi in derogation to the decision of Establishment Committee passed order dated 10.04.2013 by promoting the petitioners to Grade-2 in place of Grade 4. It has further been submitted that as a matter of fact, the petitioners, who are trained graduates and have completed eight years of service in Grade -1 in the year 2002 itself, are eligible for promotion in Grade-4, in a fact situation like this where there is no teachers available in Grade -2 and Grade -3 for consideration for promotion to Grade-4; as per Sub-Rule (2) of Rule 5 of Bihar Taken Over Elementary School Teacher Promotion Rules, 1993. Learned counsel for the petitioners, on the question of parity, submitted that similar other persons, Mr Awadh Bihar Mishra & Ors, like the petitioners filed separate writ petitions, being W.P. (S) No. 5465 of 2007 and other analogous cases and succeeded up-to Hon'ble Supreme Court and thereafter, they have been promoted to Grade-IV by respondents-District Superintendent of Education. Likewise, another batch matter, in W.P. (S) No. 3428 of 2013 in the case of Manoj Kumar Rai & Ors Vs. State of Jharkhand & Ors have also been extended benefit of Grade-4 but the petitioners have been subjected to hostile discrimination as per the whims and caprices of respondents-State. 6. Learned counsel for the petitioners further submitted that though during pendency of the writ application, the petitioners have been given Grade-IV scale vide memo dated 30.12.2016 but not as per the direction contained in W.P. (S) No. 638 of 2006 or at least from the date when the juniors of the petitioners have been granted promotion. Aggrieved thereof, the petitioners submitted representation dated 12.01.2017 before District Superintendent of Education, Ranchi requesting him to grant promotion in terms of decision taken on 27.09.2010 by the District Education Establishment committee by granting promotion from the date of their juniors or the equivalents have been granted promotion, but it did not evoke any response. Learned counsel for the petitioners further submitted that only on the strength of filing of review application the petitioners are not being given promotion even from the date when the juniors of the petitioners have been given promotion, in spite of the fact that there is neither any order of stay nor the same has been declared bad by any Court of law. 7. 7. As against this, learned counsel for the respondents at the very outset submitted that there is efficacious alternate remedy of appeal under Section 14 of the Rules of 1993, but the petitioners instead of exhausting the remedy of appeal has directly approached this Court, hence the writ application is not maintainable. On the merit of case, learned counsel for the respondents submitted that previously, the petitioners, being matric trained teachers, approached this Court for grant of Grade-1 from the date of their initial appointment and as per the direction contained in order dated 04.04.2008 passed in W.P. (S) No. 638 of 2006, the petitioners have been granted Grade-1 from the date of their initial appointment and Grade-II scale have been granted after 12 years completion of service in Grade-1, as per relevant Rules. In such view of the matter, the Cont. Case (Civil) No. 317 of 2008 filed by the petitioners for non-compliance of order dated 04.04.208 passed in W.P. (S) No. 638 of 2006 was dismissed vide order dated 25.11.2016. 8. Learned counsel for the respondents further submitted that in view of the order dated 04.04.2008 passed in W.P. (S) No. 638 of 2006; and also orders passed in L.P.A. No. 214 of 2008 and S.L.P. No. 5520-5522/2013, the Hon'ble High Court passed order dated 09.08.2014 in W.P. (S) No. 2547 of 2014 and directed the Secretary, School Education and Literacy Department, Government of Jharkhand, Ranchi to issue general direction with regard to grant of Grade-I scale from the date of initial joining. In the light of above direction, the the State Government issued a general order vide memo dated 14.12.2015. Accordingly, a seniority list was prepared and on the basis of vacancy, roaster and seniority and seniority, promotion in Grade-IV scale have been granted to all eligible candidates including the petitioners, as per Rule 58 of Jharkhand Service Code and letter dated 04.04.1985 issued by the Finance Department vide memo dated 30.12.2016 from the date of their joining to the post. Pursuant thereto, the petitioner joined on the promotional scale of Grade-IV on 31.12.2016. As per provisions of Bihar Elementary School Teachers Promotion Rules, 1993, the petitioners will qualify for the higher post at least after five years after joining the post of Grade-IV scale; hence, presently the petitioners are not at all entitled for promotion in Grade-VII scale. 9. Pursuant thereto, the petitioner joined on the promotional scale of Grade-IV on 31.12.2016. As per provisions of Bihar Elementary School Teachers Promotion Rules, 1993, the petitioners will qualify for the higher post at least after five years after joining the post of Grade-IV scale; hence, presently the petitioners are not at all entitled for promotion in Grade-VII scale. 9. So far claim of the petitioners for promotion from the date of their juniors is concerned or on the question of parity, it has been submitted that though they have been granted promotion from 01.04.2003 in compliance of order passed in Cont. Case (Civil) No. 646 of 2013 and Cont. Case (Civil) No. 738 of 2013 but, the matter is under judicial review before the Hon'ble Court in Civil Review No. 50 of 2016 and Civil Review No. 51 of 2016. In this regard, it has further been submitted that though they have been given Grade-4 Scale provisionally clearly mentioning therein that the seniority list for promotion in Grade-4 scale have not been prepared nor roster point have been followed but only in compliance of order passed by this Court in Cont. Case (Civil) No. 738 of 2013, they have been granted Grade-4 scale, which is subject to modification after finalization of seniority list, vacancy and roster point. It has further been submitted that it is no more res integra that there cannot be equity or equality in illegality. It is a settled principle of law that guarantee of equality before law enshrined under Article 14 of the Constitution of India is a positive concept and it cannot be enforced by citizen or Court in a negative manner. If any illegality or irregularity has been committed in favour of any individual or group of individuals; others cannot invoke the jurisdiction of higher Court for repeating or multiplying the same irregularity or illegality. In other words, equality or equity has no place in case of any irregularity or illegality. 10. From the pleadings available on record, it appears that earlier much emphasis has been laid by learned counsel for the parties on order dated 04.04.2008 passed in W.P. (S) No. 638 of 2006, for ready reference the relevant portion of order dated 04.04.2008 is reproduced herein below: “5. 10. From the pleadings available on record, it appears that earlier much emphasis has been laid by learned counsel for the parties on order dated 04.04.2008 passed in W.P. (S) No. 638 of 2006, for ready reference the relevant portion of order dated 04.04.2008 is reproduced herein below: “5. In the facts and circumstances of this case, as noticed above, petitioners' case should be considered for fixing their seniority from the date of their appointment. They should also be considered for giving benefit of Grade-IV scales after completion of 8/12 years of their service. Accordingly, the petitioners will be at liberty to file individual representations, on which, the Director, Human Resources Development Department (Primary Education), Government of Jharkhand, Ranchi (respondent no. 2) will pass necessary orders in terms of this order within four weeks from the date of receipt/production of the representations. (Own emphasis) It further appears that for non-compliance of order dated 04.04.2008 passed in W.P. (S) No. 638 of 2006, the petitioners preferred Cont. Case (Civil) No. 317 of 2008, which stood dismissed as no case of willful disobedience was found. Hence, no relief can be granted or direction could be issued on the strength of order passed in W.P. (S) No. 638 of 2006. 11. From perusal of record, it further appears that though the petitioners, including others, have been given promotion in Grade IV, during pendency of writ application vide memo dated 30.12.2016 in the light of common order passed by the respondent-State taking into consideration the order passed by the co-ordinate Bench of this Court vide order dated 09.08.2014 in W.P. (S) No. 2547 of 2014. At this stage, the petitioners are aggrieved by the date of grant of such promotion in Grade-IV as it would affect their future promotion and vociferously claims that it should be ante-dated and made a prayer that alternatively it should be given with effect from the dates the juniors have been granted such promotion. In this regard, the respondents have come up with a case that they have preferred Review Applications, being Civil Review No. 50 of 2016 and Civil Review No. 51 of 2016, but there is no order of stay in the said review. 12. In this regard, the respondents have come up with a case that they have preferred Review Applications, being Civil Review No. 50 of 2016 and Civil Review No. 51 of 2016, but there is no order of stay in the said review. 12. At this stage, before proceeding further, it would be apposite to reiterate the rules of promotion and for better appreciation the relevant Rules of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 is reproduced herein below: 4. Conditions for promotion.--The promotion of a teacher may only be considered on fulfilling the following: (1). He fulfills the minimum prescribed period of service for promotion; (2). He possesses minimum prescribed educational qualification and training for promotion; (3). There must be a vacancy meant for the category to which he belongs S.C., S.T. Or general according to latest rules regarding reservation; (4). He must be eligible for consideration for promotion on the basis of the Seniority list against the available vacancies; (5). His service is satisfactory. 5. Minimum educational and training qualifications and minimum tenure of service.- (1) for promotion to Grade 3-Trained graduate and minimum 12 years of service in grade-2 of Matric trained and minimum 18 years of service in Grade-2. (2) For promotion to Grade-4—Trained graduate and minimum 8 years of service in Grade-1 in the event of promotion from grade-3 and grade-2. (3) For promotion to Grade -6.-Trained post-graduate, and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5 (4) For promotion to Grade-7-Trained post-graduate, in the event to promotion from grade-4 to grade-7 in case of non-availability of teachers in Grade-6 and Grade-5 minimum five years of service in grade-5; Provided trained graduate teachers belonging to S.C. And S.T. May also be considered for promotion to Grade-7 till 31st March, 1995, if trained post-graduate teachers of these categories are not available. 10. Order of promotion.-(1) The decision for promotion shall be taken after due consideration by the Establishment Committee against the vacant posts. The order of promotion shall be issued under joint signature of D.D.C. And D.S.E. (2) A copy of the order of promotion will be sent to Treasury Officer alongwith advice of D.D.C. 14. 10. Order of promotion.-(1) The decision for promotion shall be taken after due consideration by the Establishment Committee against the vacant posts. The order of promotion shall be issued under joint signature of D.D.C. And D.S.E. (2) A copy of the order of promotion will be sent to Treasury Officer alongwith advice of D.D.C. 14. Appeal – A teacher aggrieved by an order issued under rule 10 of these rules may file an appeal before Divisional Commissioner within 30 days from the date of the order. 13. From the discussions made herein above, it appears that the petitioners are mainly aggrieved by date of promotion, which has been granted to them vide memo dated 30.12.2016, and prayed that it should be ante dated and consequent thereupon prayed for future promotion. From plain reading of above Rules, it is amply clear that though there is provision of appeal under Rule 14, against the 'order of promotion', but the petitioner without exhausting the remedy of appeal directly approached this Court, however, at this belated stage it would not be proper to relegate the matter to appellate authority leaving the petitioners in lurch. It is the duty of the State to raise the issue of maintainability at the initial stage not at the time of final hearing when the case is ripe up for hearing. View of this Court gets fortified by the decision rendered in the case of U.P. State Bridge Corporation Ltd. & Ors Vs. U.P Rajya Setu Nigam S. Karamchari Sangh as reported in (2004) 4 SCC 268 , wherein the Hon'ble Apex Court at paragraph 17 held as under: 17.... …. . Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurrer.......”. 14. Hence, for the ends of justice, it would be proper to quash the the decision of District Establishment Committee dated 27.09.2010 and decision as contained in memo dated 10.04.2013, are hereby quashed and set aside, so far it relates to/deals with the petitioners, so as to enable the respondents to take a fresh decision in view of the observations and directions given by this Court. 15. 15. In the cumulative effect of the aforesaid facts, reasons and judicial pronouncements the decision of District Establishment Committee dated 27.09.2010 and decision as contained in memo dated 10.04.2013, are hereby quashed and set aside, so far it relates to/deals with the petitioners and the Director, Primary Education, Human Resource Development Department, Govt. of Jharkhand, is directed to take a fresh decision in the matter of date of grant of promotion of petitioners' in Grade IV, within a period of two months from the date of receipt/production of copy of this order, strictly taking into account the relevant rules of provision of aforesaid Rules viz-a-viz date from which his juniors have been granted promotion, without affecting the seniority of any other person above him in the seniority list/gradation list. 16. With the aforesaid observations and directions, the writ petition stands disposed of.