ORDER : 1. Heard Mr. R. Hussain, learned counsel appearing for the petitioner. Also heard Mr. A.K. Sarkar, learned standing counsel, N.F. Railway, appearing for the respondents. 2. Pursuant to a tender notice No. CE/CON/S-L/MB/2006/23 issued by the respondent- authorities, the petitioner was issued a work order for “Construction of foundation, sub-structure and supper structure (PSC Box Girder) of major bridge No. 527-A9 (proposed span 4 × 24.40 m on pile foundation) at chainage 138/867 km. between Bandarkhal-Damcherra stations, on permanent diversion including earth work in filling/cutting behind abutment for making formation and all other ancillary works in connection with Lumding-Silchar Gauge Conversion Project” at a total cost of Rs. 4,28,64,100. An agreement was also entered into by the petitioner and the respondent-authorities in respect of the aforesaid works on 26.2.2007. Clause 10.0 of the said agreement provides for settlement of disputes through arbitration. Under the heading “settlement of disputes - Indian Railway Arbitration Rules” it is indicated that arbitration and settlement of disputes shall be governed by clauses 63 and 64 of the General Conditions of contract, N.F. Railway, 1998 edition. 3. It is not in dispute that clause 64(3)(a)(ii) applies in the case of the petitioner. Clause 64(3)(a)(ii) reads as follows: “64(3)(a)(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 or two Railway Gazetted Officers not below JA Grade and a retired Railway Officer retired not below the rank of SAG Officer 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 which may also include the names of retired Railway Officers empanelled to work as Railway Arbitrator to the contractor within 60 days from the day when a written and valid demand for arbitration is received by the General Manager. Contractor will be asked to suggest to General Manager, at least 2 names out of the panel for appointment as contractor's nominee within 30 days from the date of dispatch of the request by Railway. 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 3 arbitrators so appointed. 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 3 arbitrators so appointed. General Manager shall complete this exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor's nominee. 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.” 4. By a letter dated 16.5.2013, addressed to the General Manager, N.F. Railway, Guwahati, the petitioner raised a demand for appointment of arbitrator in respect of certain disputes arising out of the aforesaid contract work. In response to the petitioner's said letter, the Deputy Chief Engineer/CON/G/MLG, sent a letter dated 19.6.2013 to the petitioner informing that the General Manager (Construction) had nominated four Railway Officers and requesting the petitioner to nominate up to two names out of the said four nominated officers for appointment of arbitrator as nominee from the petitioner's side. Out of the four names, one was in the rank of Chief Engineer, two in the rank of Deputy Chief Engineer and one Senior Divisional Finance Manager. 5. It is pointed out by Mr. Sarkar that Senior Divisional Finance Manager is also of the rank of Deputy Chief Manager. 6. It is not disputed by Mr. Hussain that the names suggested in the aforesaid letter dated 19.6.2013, otherwise, conforms to the provisions contained in clause 64(3)(a)(ii) of the agreement. 7. Mr. Hussain submits that as the Deputy Chief Engineers were not fully conversant with the laws governing arbitration, the petitioner, vide his letter dated 3.7.2013, requested the Deputy Chief Engineer/Con/G/MLG to send names of Chief Engineer or equivalent level officers for nomination. 8. In response to the said letter dated 3.7.2013, a letter dated 12.8.2013 was issued to the petitioner by the Chief Engineer/Con-VII/MLG reiterating that the petitioner may suggest nominees out of the four names that had been sent earlier. Thus, in essence, the request of the petitioner was declined. 9. 8. In response to the said letter dated 3.7.2013, a letter dated 12.8.2013 was issued to the petitioner by the Chief Engineer/Con-VII/MLG reiterating that the petitioner may suggest nominees out of the four names that had been sent earlier. Thus, in essence, the request of the petitioner was declined. 9. This application under section 11 of the Arbitration and Conciliation Act, 1996 (‘Act of 1996’) was filed on 9.3.2015 and notice was issued in this case on 20.3.2015. 10. On instructions, Mr. Sarkar has submitted that the respondent-authorities are willing to nominate four officers in the rank of Chief Engineer and, once the names are sent, the petitioner may nominate any two out of the said four names as his nominees for the purpose of appointment of arbitrator. 11. Mr. Hussain has submitted that after the amendment of the Act of 1996 by insertion of sub-section (5) in section 12 thereof, the respondents will not be able to appoint arbitrators who are their employees unless the parties waive the applicability of section 12(5) by an express agreement in writing. Therefore, he submits, that in the attending facts and circumstance of the case, this court may appoint an arbitrator. 12. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 13. Section 12(5) reads as follows: “(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.” 14. Item No. 1 of the Seventh Schedule to the Act of 1996 reads as follows: “Arbitrator's relationship with the parties or counsel - The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.” 15. Section 12(5) came into effect on 23.10.2015. In terms of section 12(5) read with Item No. 1 of the Seventh Schedule, as of today, an employee is ineligible to be appointed as an arbitrator in a dispute involving the employer notwithstanding any prior agreement to the contrary. Section 12(5) came into effect on 23.10.2015. In terms of section 12(5) read with Item No. 1 of the Seventh Schedule, as of today, an employee is ineligible to be appointed as an arbitrator in a dispute involving the employer notwithstanding any prior agreement to the contrary. Proviso to section 12(5), however, provides that the parties may waive the applicability of section 12(5) by an express agreement in writing. 16. Admittedly, the panel forwarded by the railway authority vide letter dated 19.6.2013 was in consonance with clause 63(3)(a)(ii). However, in view of the changed situation, the court does not consider it necessary to go into the question as to whether the petitioner had a right to demand nomination of four officers in the rank equivalent to Chief Engineer or the respondents were obliged to provide a list containing the names of four officers, all of whom are in the rank of Chief Engineer, as demanded by the petitioner. 17. Taking that view, this application is disposed of appointing Hon’ble Mr. Justice H.N. Sarma, a former Judge of this court as arbitrator. 18. The Registry will send a copy of this order to Hon’ble Mr. Justice H.N. Sarma.