(1) When a vacant executive position is advertised in accordance with this Act, the Commissioner may, in connection with a determination of the merit of the persons eligible for appointment to the position, create an eligibility list for the position.(2) An eligibility list for a position is a list of eligible applicants (namely, the persons who duly applied for appointment to the position and, subject to section 39 (5A) and (5B), are eligible for appointment) arranged in order of merit as determined by the Commissioner.(3) An eligibility list for a position remains current for 12 months after the list was created.(4) An eligibility list need not comprise all the eligible applicants so long as the applicants on the list are those of greatest merit. An eligibility list may even comprise only one eligible applicant so long as that applicant is the applicant of greatest merit.(5) In deciding to make an appointment of a person to a vacant position that has not been advertised in accordance with this Act, the Commissioner may (despite section 38 (b)) select from the persons who are on an eligibility list that is current and applicable to the position (and who are available for appointment) the person with the greatest merit according to the order of merit in the eligibility list.(6) An eligibility list is applicable not only to the position in relation to which it was created but also to any other position that the Commissioner determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created.