It is undisputed by the respondent that it promoted a person to the position of Police Captain who was not on an established eligible list. The eligible list was composed of two members of the police department and the petitioner pursued grievances on behalf of the two men. The respondent in its answer to the petition herein admits that “promotional policies may be lawfully negotiated under article 14 of the Civil Service Law”, and, that it had agreed in its collective bargaining agreement with petitioner to arbi*398trate grievances as to negotiable items. The parties submitted to arbitration and the arbitrator made the following award:
"The City violated the collective bagaining agreement when it appointed George Donahue on a provisional basis to the position of Captain in the Cohoes Police Department on July 15, 1977.
"The City is hereby directed forthwith to make a selection between those individuals who had been certified as eligible for the position, namely the two Grievants, Kenneth F. West-fall and Jeffrey P. Decatur and appoint the person selected to the position of Captain in the Cohoes Police Department, on either a permanent or a provisional basis. The City is further directed to make the person selected whole for any loss of earnings or any other benefits suffered by him as a result of the appointment of a person not qualified to fill the position on July 15, 1977. Interest at 3% per annum is to be included in the calculation of monies owed to the person selected.
"Pursuant to the agreement of the Parties, the undersigned retains jurisdiction in the event any dispute should arise as to the calculation of monies owed to the person selected.”
The petitioner brought the instant proceeding, pursuant to CPLR article 75, for confirmation of the award, and the respondent offered the defenses that the award exceeded the issue presented to the arbitrator and was arbitrary in that he ordered the respondent to appoint one of the two eligible police officers to the position of police captain. The respondent’s answer sought a modification of the award as follows:
"wherefore, respondent respectfully requests that an order issue from this court modifying the award of the arbitrator to read as follows:
"That the grievance be granted and that the court confirm that the City violated the collective bargaining agreement when it appointed George Donahue on a provisional basis to the position of Captain in the Cohoes Police Department on July 15, 1977 and deleting from the award the direction to appoint one of the two persons whose names appeared upon the eligible list and further deleting from the award the payment of interest on back salary to the person named; and remitting the matter to the arbitrator for a further decision pertaining to the question of back pay so that the arbitrator may determine in what proportion the claimed back pay is to be paid to the individual grievants in the aforementioned *399arbitration proceedings; and directing that judgment be entered on the above finding holding that in the event the City of Cohoes continues to fill the position of Captain in the Police Department, that the position be filled by a person whose names appear on an eligible list for such position.”
Special Term has found that a public employer cannot deviate from the requirement of subdivision 1 of section 61 of the Civil Service Law that promotion "shall be made by selection of one of the three persons” on an eligible list. Accordingly, it appears to have found that express statutory direction precludes any contractual agreement to use an eligible list containing less than three names for the purpose of a promotion. (Cf. Matter of Sprinzen [Nomberg], 46 NY2d 623.)
However, at issue in this proceeding was a provisonal appointment and such a matter is controlled by section 65 of the Civil Service Law, which generally provides for appointment of anyone selected by the employer (appointing person) "if such nominee shall be certified by the [appropriate civil service authority]” (Civil Service Law, §65, subd 1). The respondent has failed to demonstrate that its past practice of appointing only persons already on an eligible list (presumably thereby eliminating a need for separate consent by a civil service authority) violated public policy. As recently stated in the case of Matter of Sprinzen (Nomberg) (supra, p 630): "The courts, however, must exercise due restraint in this regard [vacatur of awards for violating public policy], for the preservation of the arbitration process and the policy of allowing parties to choose a nonjudicial forum, embedded in freedom to contract principles, must not be disturbed by courts, acting under the guise of public policy, wishing to decide the dispute on its merits, for arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations.”
The public policy against imposing restrictions upon the discretion of an appointing officer in following the provisions of section 61 of the Civil Service Law relative to appointments from eligible lists is well established (see People ex rel. Balcom v Mosher, 163 NY 32). The same policy would reasonably apply to section 65 of the Civil Service Law; however, there is no restriction imposed from an external source in the present situation. At most the present position of the parties was a voluntary surrender by the appointing authority of the full *400range of possibilities available to it for the duration of the contract period.
The award does not direct a permanent appointment prior to the establishment of a statutorily sufficient eligible list or that the two grievants must be the only ones so appointed when such a list is available, and we do not in this proceeding pass upon the public policy as to such an assumed or contractual obligation.
Based upon the relief sought by the respondent and its admission that the arbitrator correctly found it violated the collective bargaining agreement, that back pay is an issue for the arbitrator and is payable, and that if it fills the position it can only be from the eligible list, an expansive approach to public policy consideration is not warranted. The respondent has failed to demonstrate any fundamental precept of civil service employment which is substantially violated to the prejudice of the public and/or its employees. Requiring a provisional appointment to the title of police captain of one of the two persons on the eligible list at the time when the original appointment was made does not render the award subject to judicial modification. (Matter of North Colonie Cent School Dist [North Colonie Teachers’ Assn.], 46 NY2d 965, affirming on opinion of Mr. Justice Main, 60 AD2d 496; cf. Matter of Levine [Zurich American Ins. Co.], 49 NY2d 907.)
It should be finally noted that no motions or other proceedings were made to the arbitrator for clarification, modification, reargument or to a court for a stay of proceedings.
The judgment should be reversed, and the motion to confirm granted in all respects, with costs.