ORDER D.N. Patel, J. - This Arbitration Application has been preferred under Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996, as amended from time to time. 2. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that this applicant is a contractor, who has entered into an agreement with the respondent-Railway Authorities. The agreement is at Annexure-2 to the memo of this Arbitration Application. Clause 64 of the Agreement, which is arbitration clause, reads as under: 64(1)(i) Demand for Arbitration - In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the "excepted matters" referred to in clause 63 of these conditions, the contractor, after 120 days but within 180 day of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration. (ii) The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item wise. Only such dispute(s) or differences in respect of which the demand has been made, together with counter claims or set off shall be referred to arbitration and other matters shall not be included in the reference. (a) The Arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the Railway. (b) The claimant shall submit his claim stating the facts supporting the claims along with all relevant documents and the relief or remedy sought against each claim within a period of 30 days from the date of appointment of Arbitral Tribunal. (c) The Railway shall submit its defence statement and counter claims, if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter, unless otherwise extension has been granted by Tribunal. (c) The Railway shall submit its defence statement and counter claims, if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter, unless otherwise extension has been granted by Tribunal. (iii) No new claim shall be added during proceedings by either party. However, a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings subject to acceptance by Tribunal having due regard to the delay in making it. 64(2) Obligation during pendency of arbitration.- Work under the contract shall, unless otherwise directed by the Engineer, continue during the arbitration proceedings, and no payment due or payable by the Railway shall be withheld on account of such proceedings, provided, however, it shall be open for Arbitral Tribunal to consider and decide whether or not such work should continue during arbitration proceedings. 64(3)(a)(i) In cases where the total value of all claims in question added together does not exceed Rs. 10,00,000/- (Rupees ten lakhs only), the Arbitral Tribunal consist of a sole arbitrator who shall be either the General Manager or a Gazetted officer of Railway not below the grade of JA grade nominated by the General Manager in that behalf. The sole Arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by Railway. (ii) In cases not covered by clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below JA grade, as the arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Railway Officers of one or more departments, of the Railway to the contractor who will be asked to suggest to General Manager upto 2 names out of the panel for appointment as contractor's nominee. The General Manager shall appoint at least one out of them as the contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the 'presiding arbitrator' from amongst the three arbitrator's so appointed. While nominating the arbitrators it will be necessary to ensure that one of them is from the Accounts department. While nominating the arbitrators it will be necessary to ensure that one of them is from the Accounts department. An officer of selection grade of the Accounts department shall be considered of equal status to the officers in SA grade of other departments of the Railways for the purpose of appointment of arbitrators. (iii) If one or more of the arbitrators appointed as above refuses to act as arbitrator, withdraws from his office as arbitrator or vacates his/their office/offices or is/are unable or unwilling to perform his functions as arbitrator for any reason whatsoever or dies or in the opinion of the General Manager fails to act without undue delay, the General Manager shall appoint new arbitrator/arbitrators to act in his/their place in the same manner in which the earlier arbitrator/ arbitrators had been appointed. Such reconstituted Tribunal may, at its discretion, proceed with the reference from the stage at which it was left by the previous arbitrators. (iv) The Arbitral Tribunal shall have power to call for such evidence by way of affidavits or otherwise as the Arbitral Tribunal shall think proper, and it shall be the duty of the parties hereto to do or cause to be done all such things as may be necessary to enable the Arbitral Tribunal to make the award without any delay. (v) While appointing arbitrators under sub clause (i), (ii) and (iii) above, due care shall be taken that he/they is/are not the one/those who had an opportunity to deal with the matters to which the contract relates or who in the course of his/their duties as Railway servants expressed views on all or any of the matters under dispute or differences. The proceedings of the Arbitral Tribunal or the award made by such tribunal will, however, not be invalid merely for the reason that one or more arbitrator had, in the course of his service, opportunity to deal with the matters to which the contract relates or who in the course of his/their duties expressed views on all or any of the matters under dispute........." (Emphasis supplied) 3. This petitioner has presented his claim arising out of the said contract vide registered post A/D notice dated 25th March, 2015, which is at Annexure 4 to the memo of this Arbitration Application. This petitioner has presented his claim arising out of the said contract vide registered post A/D notice dated 25th March, 2015, which is at Annexure 4 to the memo of this Arbitration Application. In detail, the claim has been lodged before the respondents The arbitration notice was also given on 16th May, 2015, which is at Annexure 5 to the memo of this Arbitration Application. 4. No reply, however, has been given by the respondents for appointment of Arbitrator and hence, the present Arbitration Application has been preferred under Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996. 5. Looking to the Arbitration Clause, it appears that there will be Arbitral Tribunal, consisting of a panel of three Gazetted Railway Officers, not below the JA Grade. This Clause is in violation of Sub-section (5) of Section 12 of the Arbitration and Conciliation Act, 1996. For ready reference, Sub-section (5) of Section 12 of the Arbitration and Conciliation Act, 1996, to be read with Schedule VII, is reproduced hereunder: "12. Grounds for challenge.- (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,- xxx xxx xxx (5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing. The Seventh Schedule [See section 12(5)] Arbitrator's Relationship with the Parties or Counsel 1. The arbitrator is an employee, consultant, adviser or has any other past or present business relationship with a party. 2. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties. 3. The arbitrator currently represents the lawyer or law firm acting as counsel for one of the parties. 4. The arbitrator is a lawyer in the same law firm which is representing one of the parties. 5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matter in dispute in the arbitration. 6. 4. The arbitrator is a lawyer in the same law firm which is representing one of the parties. 5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matter in dispute in the arbitration. 6. The arbitrator's law firm had a previous but terminated involvement in the case without the arbitrator being involved himself or herself. 7. The arbitrator's law firm currently has a significant commercial relationship with one of the parties or an affiliate of one of the parties. 8. The arbitrator regularly advises the appointing party or an affiliate or the appointing party even though neither the arbitrator nor his or her firm derives a significant financial income therefrom. 9. The arbitrator has a close family relationship with one of the parties and in the case of companies with the persons in the management and controlling the company. 10. A close family member of the arbitrator has a significant financial interest in one of the parties or an affiliate of one of the parties. 11. The arbitrator is a legal representative of an entity that is a party in the arbitration. 12. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties. 13. The arbitrator has a significant financial interest in one of the parties or the outcome of the case. 14. The arbitrator regularly advises the appointing party or an affiliate of the appointing party, and the arbitrator or his or her firm derives a significant financial income therefrom. RELATIONSHIP OF THE ARBITRATOR TO THE DISPUTE 15. The arbitrator has given legal advice or provided an expert opinion on the dispute to a party or an affiliate of one of the parties. 16. The arbitrator has previous involvement in the case. ARBITRATOR'S DIRECT OR INDIRECT INTEREST IN THE DISPUTE 17. The arbitrator holds share, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held. 18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. 19. ARBITRATOR'S DIRECT OR INDIRECT INTEREST IN THE DISPUTE 17. The arbitrator holds share, either directly or indirectly, in one of the parties or an affiliate of one of the parties that is privately held. 18. A close family member of the arbitrator has a significant financial interest in the outcome of the dispute. 19. The arbitrator or a close family member of the arbitrator has a close relationship with a third party who may be liable to recourse on the part of the unsuccessful party in the dispute. Explanation 1.- The term "close family member" refers to a spouse, sibling, child, parent or life partner. Explanation 2.- The term "affiliate' encompasses all companies in one group of companies including the parent company. Explanation 3.- For the removal of doubts, it is clarified that it may be the practise in certain specific kinds of arbitration, such as maritime or commodities arbitration, to draw arbitrators from a small, specialised pool. If in such fields it is the custom and practise for parties frequently, to appoint the same arbitrator in different cases, this is a relevant fact to be taken into account while applying the rules set out above." (Emphasis supplied) 6. In view of the aforesaid provision, Arbitrator cannot be an employee of one of the parties to the litigation. It has been held by Hon'ble the Supreme Court in the case of North Eastern Railway & Ors. v. Tripple Engineering Works, as reported in (2014) 9 SCC 288 , specially in paragraph no.10 thereof, as under: "10. In the present case Clauses 64(3)(a)(ii) and (iii) of the general condition of contract do not prescribe any specific qualification of the arbitrators that are to be appointed under the agreement except that they should be Railway Officers. As already noticed, even if the arbitration agreement was to specifically provide for any particular qualifications of an arbitrator the same would not denude the power of the Court acting under Section 11(6), in an appropriate case to depart therefrom. In Singh Builders Syndicate pendency of arbitration proceedings for over a decade was found by this Court to be a mockery of the process. In the present case, admittedly the award in respect of disputes and differences arising out of Contract No. CAO/CON/722 is yet to be passed. In Singh Builders Syndicate pendency of arbitration proceedings for over a decade was found by this Court to be a mockery of the process. In the present case, admittedly the award in respect of disputes and differences arising out of Contract No. CAO/CON/722 is yet to be passed. Though the appellant Railways has in its pleadings made a feeble attempt to contend that the process of arbitration arising out of the said contract has been finalized, no material, whatsoever, has been laid before the Court in support thereof. The arbitration proceedings to resolve the disputes and differences arising out of Contract No. CAO/CON/738 has not even commenced. A period of nearly two decades has elapsed since the contractor had raised his claims for alleged wrongful termination of the two contracts. The situation is distressing, and to say the least disturbing. The power of the Court under the Act has to be exercised to effectuate the remedy provided thereunder and to facilitate the mechanism contemplated therein. In a situation where the procedure and process under the Act has been rendered futile, the power of the Court to depart from the agreed terms of appointment of arbitrators must be acknowledged in the light of the several decisions noticed by us. (Emphasis supplied) 7. In view of the aforesaid decision, this Court has all power, jurisdiction and authority to appoint an Arbitrator, looking to the facts of the present case that: (a) Arbitration notice given by this applicant dated 16th May, 2015, which is at Annexure 5 to the memo of this Arbitration Application, has never been replied to by these respondents; and (b) Arbitration Clauses, specially Clause 64(3)(a)(i) thereof, is in violation of Sub-section (5) of Section 12 of the Arbitration and Conciliation Act, 1996, as amended from time to time. Hence, as per aforesaid decision, the respondents cannot appoint their own Gazetted Officers as Arbitrators. 8. Learned counsel for the respondents has mainly contended that within 120 days from the date arbitration notice i.e. 16th May, 2015, the Arbitration Application has been preferred and hence, no arbitrator can be appointed by this Court. 9. Hence, as per aforesaid decision, the respondents cannot appoint their own Gazetted Officers as Arbitrators. 8. Learned counsel for the respondents has mainly contended that within 120 days from the date arbitration notice i.e. 16th May, 2015, the Arbitration Application has been preferred and hence, no arbitrator can be appointed by this Court. 9. The aforesaid contention is not accepted by this Court, firstly for the reason that Arbitration Clause, incorporated in the Agreement, which permits the Railway Employees to act as an Arbitrator, is in violation of Sub-section (5) of Section 12 of the Arbitration and Conciliation Act, 1996 and secondly for the reason that the procedure has been duly complied with by the applicant viz. initially the claim was lodged by this applicant vide Annexure 4 and thereafter, notice was also given for appointment of Arbitrator on 16th May, 2015, which is at Annexure 5 to the memo of this Arbitration Application. When the notice at Annexure 5 was not replied to by these respondents, this Arbitration Application has been preferred before this Court on 8th October, 2015. Thus, there is no violation of any procedure by this applicant. 10. In view of the aforesaid facts, reasons and judicial pronouncements, I hereby appoint Sri Prem Chand Tripathi, Senior Advocate of this Court, as an Arbitrator, who will decide the disputes between the parties. Registrar General of this Court is hereby directed to send a copy of this Arbitration Application along with Annexures and Affidavits to the learned Arbitrator, appointed by this Court. The learned Arbitrator will decide the disputes between the parties, as early as possible and practicable, preferably within the time schedule, as given under the Arbitration and Conciliation Act, 1996, as amended from time to time. This time limit will start from the date of commencement of arbitration proceedings. Learned counsel for both the sides shall cooperate with the hearing before the learned Arbitrator and shall not ask for any unnecessary adjournment. 11. This Arbitration Application is, thus, allowed and disposed of. Application disposed of accordingly.