(dissenting in part). I am wholly in accord with the court’s holding that an initial appointment to a teaching position falls within the ambit of a school committee’s nondelegable authority over educational policy conferred by G. L. c. 71, §§37 and 38. That holding is consistent with recent decisions defining a school committee’s nondelegable prerogative to include appointments to prin-cipalships and other management positions, Berkshire Hills *804Regional Sch. Dist. Comm. v. Berkshire Hills Education Assn., .375 Mass. 522, 525-528 (1978), and renewals of teachers’ contracts where renewal will confer tenure, School Comm. of Danvers v. Tyman, 372 Mass. 106, 111-113 (1977). A contrary holding would be inconsistent with the rationale of Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940), which held that “[b]y long established legislative policy school committees are given general management of the public schools including the election and the dismissal of teachers .... The success of a school system depends largely on the character and ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system.”
My disagreement with the majority’s disposition of this case stems from my different interpretation of the question that was submitted to arbitration. Zola was the only applicant for the position of guidance counselor who possessed all the posted qualifications and understandably felt aggrieved when her application was passed over in favor of one (Smith) who did not possess all the posted qualifications. Zola invoked the grievance procedure, seeking to be appointed herself. Her claim seems to have had two aspects: first, that Smith’s appointment violated the provision of the collective bargaining agreement requiring that qualifications be posted and that they be adhered to in hiring; and, second, that Zola, as the only applicant possessing all the posted qualifications, should have received the appointment. The first aspect was settled at the second stage of the grievance procedure, when the superintendent ruled that posted qualifications had to be adhered to. The school committee abided by that determination, revoking Smith’s appointment and beginning the appointive process anew. At the superintendent’s level of the grievance procedure the first, or procedural, aspect of Zola’s contention was settled and dropped out of the case.
The question Zola took on to arbitration (the fourth stage of the grievance procedure) was her separate and distinct *805contention that she should have received the appointment herself. It is hard to see how the questions submitted to arbitration could have put it more unambiguously: “Did the School Committee violate Article XIII of the Collective Bargaining Agreement by not appointing the Grievant to the position of Guidance Counselor? If so, what should the remedy be?” (emphasis supplied). The arbitrator understood the first question in its obvious sense and ruled that the school committee had, as charged, violated the agreement by not appointing Zola to the position. Without overstepping in any respect the precise boundaries of the matter that had been committed to him for decision, he ordered that Zola be offered an appointment and that she be paid damages in the amount of the salary differential from the date of Smith’s initial (but revoked) appointment to the date that the school committee should comply with the order to offer an appointment to Zola. Thus, I cannot acquiesce in the majority’s view that the issue submitted to arbitration was “not whether Zola should be appointed, but rather whether the school committee failed to adhere to the provisions it had agreed upon in appointing a guidance counselor.” Supra at 799.1
In my opinion the trial judge acted correctly in vacating the award in its entirety on the ground that the matter put *806to the arbitrator was one that the school committee could not lawfully agree to delegate. The question submitted to arbitration and decided by the arbitrator was whether the school committee was obliged to appoint Zola to a guidance counselor position. Unless we are to distinguish between appointments to principalships and appointments to other academic positions — a distinction which, I agree with the majority, must be rejected — the Berkshire Hills case, which held the ultimate power of appointment to be nondelegable, controls this one and supports the trial judge’s decision. It makes no difference whether Zola’s claim was based on a theory of entitlement under the terms of the collective bargaining agreement2 or on a theory that her appointment could be ordered by the arbitrator as a discretionary remedy for the school committee’s failure to adhere to the posted qualifications procedures. The reason for the relief sought is beside the point; the problem is lack of power. The power of appointment is committed by G. L. c. 71, §§37 and 38, exclusively to the school committee: the school committee may not irrevocably delegate to an arbitrator the decision whether one should be appointed to an academic position, and it may not be made to abide by the outcome of such a delegation if it does. See School Comm. of Danvers v. Tyman, 372 Mass, at 113 n.5; Dennis Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, 120 (1977). The defect was not in what the arbitrator did but rather was in the nonarbitrability of the claim submitted to him for decision. It is immaterial, in such a case, whether the matter comes to court in the form of a motion under G. L. c. 150C, § 2(b), to stay arbitration *807(see the Dennis Yarmouth case, supra, at 119; the Berkshire Hills case, supra at 530,) or in the form of a motion to vacate an arbitration award previously rendered: the question for decision is identical in both cases. See School Comm. of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 847 (1977).3
The majority’s strained interpretation of the claim inevitably permeates their treatment of the award. On the one hand they hold that the questions submitted to the arbitrator for decision were arbitrable; on the other they vacate the first paragraph of his award, which was simply his affirmative answer to the first of the two questions submitted, in haec verba. How can it be that the question put to the arbitrator lay within his jurisdiction, but a simple affirmative answer to it exceeded his jurisdiction? Similarly, the arbitrator’s award of compensatory damages to Zola for the delay in her appointment is vacated on the ground that she is not entitled to appointment, but the case is ordered returned to the arbitrator for a redetermination of damages based on some other, unspecified theory. Is it not basic, however, that the legal sufficiency of the arbitrator’s theory of damages is not before us for review, but only the question of his jurisdiction? Greene v. Mari & Sons Flooring Co., 362 Mass. 560, 563 (1972). School Comm. of Braintree v. Raymond, 369 Mass. 686, 691 (1976).
It seems to me that the majority also err in suggesting that it lay within the competence of the arbitrator to bar the *808school committee from amending the technical qualifications for the position of guidance counselor when it reposted the position. That was not, of course, the question submitted to arbitration; but if it were, I would hold that the fixing of qualifications for appointments to teaching positions is so integral to the appointment process that a provision in a collective bargaining agreement purporting to limit the committee’s power in that respect would be unenforceable as an impermissible conflict with the discretion over academic appointments reposed in the school committee by G. L. c. 71, §§37 and 38.4 No better example of the conflict could be put than the case at bar. Zola was the only person interested in the guidance counselor position who met the formal qualifications as originally posted. The arbitrator, by ruling that the committee could not appoint one who did not meet the posted qualifications and could not change the posted qualifications, in effect limited the field of applications to Zola’s. Neither the collective bargaining agreement nor the arbitrator could so confine the discretion of the school committee, which may have good reason for feeling that Zola would not be suitable in the presumably sensitive position of guidance counselor. Whatever those reasons, they are under the statutory scheme unreviewable by an arbitrator; like the power of appointment itself, the determination of qualifications for appointment is committed by § § 37 and 38 to the exclusive discretion of the school committee.
As the reference was beyond the scope of what the school committee could lawfully agree to submit to arbitration, I think the trial judge was right in holding that the arbitration award must be vacated in its entirety, and I find no basis for resubmission to the arbitrator for reassessment of damages. I would therefore affirm the judgment.
The majority seem to analogize the question submitted to arbitration in this case to the one submitted in School Comm. of West Springfield v. Korbut, 373 Mass. 788 (1977), on the basis of a semantic similarity between the questions. Functionally the cases are very dissimilar. In Korbut a “coordinator of language arts” was demoted from that position without compliance with the notice and hearing requirements of the collective bargaining agreement. It was clear that the alleged breaches of the agreement concerned these procedural omissions and that the grievant’s claim that the committee violated the agreement “in failing to reappoint Korbut” meant, in context, in the process of failing to reappoint Korbut. Here there is no such ambiguity: the school committee is alleged to have violated the agreement “by” failing to appoint Zola. A secondary level of distinction is that the Korbut case dealt with retention of a position already held. This case, like the Berkshire Hills case, deals with an initial appointment to a vacant teaching position, a function which I, like the majority, think belongs nondelegably to the school committee.
The arbitration took place more than a year before publication of either of the appellate decisions in the Berkshire Hills case, suggesting that Zola (like Gray in the Berkshire Hills case, who relied on a substantially identical provision) may have read Article XIII as opening the school committee’s prerogative with respect to academic appointments to arbitral control. The decision of this court was issued on November 17, 1977, 5 Mass. App. Ct. 686 (1977), and the decision of the Supreme Judicial Court (cited in the text) on June 26,1978. The arbitration award ordering that Zola be appointed was issued on August 3, 1976.
Our focus must, of course, be on the question actually framed for submission to arbitration, not on the arbitrability of other questions which could have been framed arising out of the underlying facts. It is the arbitrator who will determine the facts; the issue of arbitrability of the claim may be determined by a court on a motion to stay arbitration under G. L. c. 150C, § 2(b), before there has been any determination of facts by an arbitrator. The principle on which the court relies, that arbitration should not be stayed “unless no lawful relief conceivably can be awarded by the arbitrator” (School Comm. of Danvers v. Tynan, 372 Mass, at 113), applies to cases where the claim submitted for decision is arguably within the scope of what the parties contracted to submit (or, as in this case, were permitted by law to submit) to arbitration. It has no application here, where the question is unambiguous and squarely within the nondelegable area.
The “tailoring” of the qualifications to enable the school committee to appoint Smith was based on a judgment by the school committee that an important educational purpose would be served by adding a black guidance counselor to the high school faculty, a judgment with which the New Bedford Educators Association and, at a latter stage, the arbitrator, indicated they agreed in principle. Smith’s appointment, however, could not have been made except by revising the posted qualifications. The record does not suggest that this was other than an educational policy judgment.