JUDGMENT By the Court.—This special appeal under the Rules of the Court arises from the order of the Hon’ble Single Judge dated 9.1.2007 granting interim stay order in writ petition No. 69927 of 2006 preferred by respondent No. 1. 2. It appears that respondent No. 1 filed the writ petition with the grievance that as per the decision of the appellant, he is entitled to continue in service till he attains the age of 60 years. Therefore, the following reliefs were prayed for : “I. Issue a writ, order or direction in the nature of mandamus declaring the petitioner’s age of superannuation as 60 years and command the opposite party to permit him to work on the post of Assistant in “NOIDA” and to give all other subsequent benefits to which he is entitled till 31.12.2008 and not to retire him on 31.12.2006. II. Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not retire the petitioner at the age of 58 years and also not to interfere in his functioning till 31.12.2008. III. Issue a suitable writ, order or direction, which this Hon’ble Court may deem fit and proper on the facts and circumstances of the case to meet the ends of justice and fair play. IV. Award costs of this petition to the petitioner from the contesting respondents.” 3. The Hon’ble Single Judge having heard the learned Counsel for the parties and having taken note of the fact that the appellate authority has itself recommended the enhancement of age of superannuation of its employees from 58 years to 60 years and the same is pending approval before the Cabinet, passed an interim order providing that the petitioner-respondent No. 1 shall be permitted to continue to work till the cabinet decision is taken. 4. Sri Dhananjay Awasthi, learned Counsel for the appellant vehemently contended that the Hon’ble Single Judge has virtually granted the final relief at the interim stage which could not have been granted. He further submits that in case the proposal made by the appellant for enhancing the age of superannuation is not approved by the State Government, in that event, the appellant cannot be compensated and thus the balance of convenience being in favour of the appellant, interim order ought not to have been passed. 5. He further submits that in case the proposal made by the appellant for enhancing the age of superannuation is not approved by the State Government, in that event, the appellant cannot be compensated and thus the balance of convenience being in favour of the appellant, interim order ought not to have been passed. 5. Sri A.R. Dube, learned Counsel for the respondent No. 1-petitioner submits that the interim order was passed after exchange of affidavits and after hearing learned Counsel for the parties and hence the same is not liable to be interferred with at this stage. 6. We have considered the submissions made by the learned Counsel for the parties and perused the records. 7. It is well-settled legal position that the relief prayed for cannot be granted by way of interim relief unless it is found that the balance of convenience is in favour of the petitioner and denial of interim relief would either render the petition infructuous or would result into such irreparable loss which cannot be compensated in terms of damages. It is also equally well-settled that the interim relief can only be granted where a prima facie case is made out and the loss cannot be compensated in terms of damages. 8. In the case in hand, admittedly in case the petitioner is allowed to continue in service under the interim order till he attains the age of 60 years and in the event, the petition ultimately fails, the appellant cannot be compensated, whereas in case the writ petition of the respondent succeeds he can be amply compensated. 9. Learned Counsel for the parties have also raised argument touching the merits of the case with regard to applicability of Service Regulation of 1981 in view of the fact that no declaration was given by the contesting respondent under Regulation 78(1) of the Regulations and hence he would be governed by the U.P. Government Servant Service Rules and would retire on attaining the age of 60 years. 10. The present appeal is only confined to the legality and validity of the interim order passed by the learned Single Judge and the merit of the dispute is not an issue before us and that is the subject-matter of the writ petition which is yet to be finally adjudicated by the learned Single Judge. 10. The present appeal is only confined to the legality and validity of the interim order passed by the learned Single Judge and the merit of the dispute is not an issue before us and that is the subject-matter of the writ petition which is yet to be finally adjudicated by the learned Single Judge. Until the issue involved in the writ petition is finally adjudicated, we are of the view that the interim order providing the petitioner to continue in service till the decision is taken by the Cabinet ought not to have been granted. 11. We, therefore, vacate the interim order dated 9.1.2007 passed by the Hon’ble Single Judge. 12. However, considering the facts and circumstances, it is hereby provided that in the event, the writ petition succeeds, the respondent No. 1-petitioner shall be entitled to claim salary and other benefits payable to him treating his age of superannuation to be 60 years. 13. Since the pleadings have been exchanged between the parties and looking to the facts of the case, we request the Hon’ble Single Judge to decide the writ petition, if possible, expeditiously subject to other business of the Court. 14. Registry is directed to list the writ petition before the Hon’ble Single Judge in the next cause list. 15. In view of the discussions made above, the appeal succeeds and is allowed. However, there shall be no order as to costs. —————