Vibhu Bakhru, J.

1. The petitioner (hereinafter referred to as “Afcons”) has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter “the Act”) inter alia praying that an arbitrator be appointed - on behalf of the respondent, Rail Vikas Nigam Limited (RVNL) - for adjudicating the disputes that have arisen between the parties in relation to the agreement dated 12.12.2011.

2. The controversy involved in the present case essentially relates to the question whether former employees of the parties are disqualified for being appointed as arbitrators by virtue of Section 12(5) of the Act and whether the procedure for appointment of an arbitral tribunal is required to be rejected in its entirety as it entails appointment of serving officers of RVNL/Railways as arbitrators.

3. Briefly stated, the relevant facts necessary to address the controversy are as under :

3.1 Afcons is a company incorporated under the Companies Act, 1956 and is engaged in the business of undertaking large infrastructure projects, including construction of roads, bridges, jetties, railway lines, tunnels etc. RVNL is a Government of India Undertaking created to undertake projects pertaining to strengthening of Golden Quadrilateral and Port Connectivity. RVNL issued a Notice Inviting Tender dated 27.06.2013, inviting bids from interested parties for the work of “Construction of Viaduct including related works for 5.16 km length excluding station areas from Ch. 12570.00 to Ch. 18630.00 between Nicco Park to CBD- 1, in New Garia-Airport Corridor of Kolkata Metro Railway Line” (hereafter “the works”). Afcons” bid, submitted pursuant to the Notice Inviting Tender, was accepted and a Letter of Award dated 21.10.2011 (hereafter “the LOA”) in respect of the works for a total consolidated value of Rs.2,12,54,73,130/-, was issued in favour of Afcons. Subsequently, the parties entered into a Contract Agreement dated 12.12.2011 (hereafter “the agreement”) for the afore-mentioned works.

3.2 Admittedly, certain disputes have arisen in relation to the aforesaid agreement. The same includes an arbitration clause, the relevant extract of which is quoted as under:

“17.3 Arbitration Any dispute in respect of which amicable settlement has not been reached arising between the Employer and the Domestic or Foreign Contractor related to any matter arising out of or connected with this contract, the disputes shall be settled in accordance with the Indian Arbitration Act, 1996 and any statutory modification or re-enactment thereof. Further, it is agreed between the parties as under:

(i) Number of Arbitrators: The arbitral tribunal shall consist of 3 (Three) arbitrators.

(ii) Procedure for Appointment of Arbitrators: The arbitrators shall be appointed as per following procedure:

(a) Employer will forward a panel of 5 names to the contractor and contractor will give his consent for any one name out of the panel to be appointed as one of the Arbitrators.

(b) Employer will decide the second Arbitrator out of the remaining four names in the panel as mentioned in Para (a) above.

(c) The third Arbitrator shall be chosen by the two Arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of failure of the two Arbitrators appointed by the parties to reach upon consensus within a period of 30 days from the appointment of the Arbitrators subsequently appointed, then, upon the request of either or both parties, the presiding Arbitrator shall be appointed by the Managing Director, Rail Vikas Nigam Limited, New Delhi.

(iii) Qualification and Experience of Arbitrators: The arbitrators to be appointed shall have minimum qualification and experience as under:

(a) One member of the tribunal shall be necessarily a working (not below the rank of SAG) or a retired officer (retired not below the rank of SAG, age not exceeding 70 years and in reasonably good mental and physical fitness) of Indian Railway Accounts Service , having experi